A Virginia Circuit Court Judge has ruled Virginia Code § 20-124.2(B2) unconstitutional because it does not require proof that grandchildren will face “actual harm” without the requested visitation. The statute allows a grandparent, who is related to a deceased or incapacitated parent, to petition for visitation of the parent’s minor child if the court determines such visitation is in the child’s best interest.
In the case at bar, Thomas Williams and Maggie Panter had three children. Thomas Williams died in 2017, and soon after, Maggie Panter prohibited Williams’ parents (“the Grandparents”) from visiting her children. The Grandparents petitioned the Washington County Circuit Court for visitation rights under Virginia Code § 20-124.2(B2).
The Circuit Court cited several prior cases suggesting the Grandparents must show the grandchildren would suffer “actual harm” without the requested visitation. In Griffin v. Griffin, the Court of Appeals of Virginia ruled “[a]bsent a showing of actual harm to the child, the constitutional liberty interests of fit parents take precedence over the ‘best interests’ of the child … A court may not impose its subjective notions of ‘best interests of the child’ in derogation of parental rights protected by the Constitution.” Griffin v. Griffin, 41 Va. App. 77, 85 (Va. Ct. App. 2003) (internal citations omitted).
Accordingly, the Circuit Court ruled that granting the Grandparents visitation would “violate [the] mother’s fundamental substantive due process rights under the Fourteenth Amendment by permitting an award of visitation to grandparents upon evidence of less than actual harm to the children without the visitation.” (See In re: Williams, et al. v. Panter (VLW 023-8-060).) The Judge reasoned “[d]espite consent the deceased father may have given for visitation of the children with the paternal grandparents during his lifetime, it is mother, as the fit and surviving parent of the children, who is solely vested with the fundamental liberty interest of a parent in raising her children, as established under the Due Process Cause of the Fourteenth Amendment…” Id.
The ruling serves a massive blow to grandparental rights in the Commonwealth. It raises the standard of proof substantially for grandparents petitioning for visitation. “The actual harm standard cannot be satisfied by a showing that it would be ‘better,’ ‘desirable,’ or ‘beneficial’ for a child” to have visitation with a non-parent.” Griffin, 41 Va. App. 77 at 84. Actual harm means exactly that; actual injury to the child’s health or welfare. Id.
Nearly every state has codified some form of grandparental rights for visitation, but in Virginia, the law is now narrowed.
See Grandparents Rights by State, available at https://worldpopulationreview.com/state-rankings/grandparents-rights-by-state.
Virginia’s grandparent visitation statute was recently amended by the Virginia General Assembly in 2022. However, in light of this new ruling, an appeal of the case or further amendment to the statute is very likely.
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