Williams v. Williams, No. 2260-96-3

Docket NºNo. 2260-96-3
Citation24 Va.App. 778, 485 S.E.2d 651
Case DateJune 03, 1997
CourtCourt of Appeals of Virginia

Page 651

485 S.E.2d 651
24 Va.App. 778
Thomas O. WILLIAMS, IV and Sarah Hasty Williams
v.
Thomas O. WILLIAMS, III and Frances S. Williams.
Record No. 2260-96-3.
Court of Appeals of Virginia,
Salem.
June 3, 1997.

Page 652

[24 Va.App. 780] Harriet D. Dorsey (Dorsey & Hartley, on brief), Blacksburg, for appellants.

H. Gregory Campbell, Jr., Blacksburg, for appellees.

Present: MOON, C.J., and COLEMAN and WILLIS, JJ.

MOON, Chief Judge.

Thomas O. Williams, IV and Sarah Hasty Williams appeal the trial court's order granting Thomas O. Williams, III and Frances S. Williams visitation with the appellants' daughter, Leslie Williams. Appellants assert that Code § 20-124.2(B), as it pertains to non-parent visitation, violates the Fourteenth Amendment to the United States Constitution.

We hold that the parents' right to autonomy in child rearing is a fundamental right protected by the Fourteenth Amendment of the United States Constitution and that state interference with that right must be justified by a compelling state interest. Accordingly, we further hold that the language of Code § 20-124.2(B) that "[t]he court shall give due regard to the primacy of the parent-child relationship" requires proof that harm or detriment to the welfare of the child would result without visitation, before visitation may be ordered over the united opposition of the child's parents. Finding that the trial court failed to determine if harm or detriment would result to Leslie's health or welfare if visitation was not ordered, we reverse and remand for reconsideration of visitation consistent with the holdings of this opinion.

Leslie Williams was born on March 9, 1991, and resides with her biological parents in Blacksburg, Virginia, one block from the home of appellees, her paternal grandparents. The trial court found that

Leslie's family is intact. No evidence of paternal abuse or neglect; [appellants] are respectable members of their community; [appellants] are mentally, physically and morally fit; and [appellants] are capable of meeting Leslie's financial, educational, moral and social needs.

[24 Va.App. 781] The parties maintained regular familial contact until February, 1994, when appellants, after consultation with a counsellor in Waxall, North Carolina, announced that they were "detaching" from their relationship with appellees. Counseling efforts were unsuccessful, and the grandparents ultimately filed a petition seeking visitation with their granddaughter. Visitation of ten hours per week was ordered. The circuit court held that

[appellees] are mentally, physically, and morally fit; ... [appellees] are responsible, mature, and respected members of their community; ... Leslie will benefit from contact with her grandparents, living only one block apart; ... grandparent visitation will not interfere with her health or emotional development; ... grandparent visitation is a minimal intrusion into the family unit; ... [appellees] obviously love Leslie and have the ability to adequately care for her; and ... it is in Leslie's best interest to have visitations with her grandparents.

I. The Statute

There is no common law right of visitation for grandparents in Virginia. Kogon

Page 653

v. Ulerick, 12 Va.App. 595, 405 S.E.2d 441 (1991). However, Code § 20-124.2(B) permits grandparents, and others, to seek visitation according to the following standard:

The court shall give due regard to the primacy of the parent-child relationship, but may upon a showing by clear and convincing evidence that the best interests of the child would be served thereby awarding custody or visitation to any other person with a legitimate interest.

Code § 20-124.1 provides that "person with a legitimate interest" is to be "broadly construed, and includes, but is not limited to grandparents, stepparents, former stepparents, blood relatives and family members."

II. Fourteenth Amendment Challenge

The Fourteenth Amendment of the United States Constitution provides that "[n]o state shall ... deprive any person of [24 Va.App. 782] life, liberty or property, without due process of law...." U.S. Const. amend. XIV, § 1. In applying the protection of the Fourteenth Amendment, the United States Supreme Court has held that "[w]here certain fundamental rights are involved ... regulation limiting these rights may be justified only by a 'compelling state interest' ... and ... legislative enactments must be...

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34 practice notes
  • Von Eiff v. Azicri, No. 96-3273
    • United States
    • Court of Appeal of Florida (US)
    • 17 Septiembre 1997
    ...deal solely with intact families. 5 See Beagle, 678 So.2d at 1271; Brooks, 454 S.E.2d at 769; Hawk, 855 S.W.2d at 573; Williams, 485 S.E.2d at 651. However, under circumstances where families have been disrupted by death or divorce, the intact family is already compromised and the focus of ......
  • Belmer v. Com., Record No. 2344-00-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • 2 Octubre 2001
    ...adult present when a juvenile waives fundamental constitutional rights and confesses to a serious crime."); Williams v. Williams, 24 Va.App. 778, 783, 485 S.E.2d 651, 653 (1997), aff'd as modified, 256 Va. 19, 501 S.E.2d 417 (1998) (recognizing right of parents to raise their children ......
  • Egan v. Fridlund-Horne, No. 1 CA-SA 08-0240.
    • United States
    • Court of Appeals of Arizona
    • 14 Abril 2009
    ...evidence that a `denial of visitation would be harmful or detrimental to the welfare of the child.'" (quoting Williams v. Williams, 24 Va.App. 778, 485 S.E.2d 651, 654 (1997))). Contra In re Marriage of Winczewski, 188 Or.App. 667, 72 P.3d 1012, 1030 (2003) (Deits, C.J., concurring) (f......
  • Simms v. Alexandria Dep't of Cmty. & Human Servs., Record No. 0479-21-4
    • United States
    • Virginia Court of Appeals of Virginia
    • 5 Abril 2022
    ...Amendment and "state interference with that right must be justified by a compelling state interest." Williams v. Williams , 24 Va. App. 778, 780, 485 S.E.2d 651 (1997), aff'd as modified , 256 Va. 19, 501 S.E.2d 417 (1998). In any event, our case law makes clear that these due pro......
  • Request a trial to view additional results
34 cases
  • Von Eiff v. Azicri, No. 96-3273
    • United States
    • Court of Appeal of Florida (US)
    • 17 Septiembre 1997
    ...deal solely with intact families. 5 See Beagle, 678 So.2d at 1271; Brooks, 454 S.E.2d at 769; Hawk, 855 S.W.2d at 573; Williams, 485 S.E.2d at 651. However, under circumstances where families have been disrupted by death or divorce, the intact family is already compromised and the focus of ......
  • Belmer v. Com., Record No. 2344-00-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • 2 Octubre 2001
    ...adult present when a juvenile waives fundamental constitutional rights and confesses to a serious crime."); Williams v. Williams, 24 Va.App. 778, 783, 485 S.E.2d 651, 653 (1997), aff'd as modified, 256 Va. 19, 501 S.E.2d 417 (1998) (recognizing right of parents to raise their children ......
  • Egan v. Fridlund-Horne, No. 1 CA-SA 08-0240.
    • United States
    • Court of Appeals of Arizona
    • 14 Abril 2009
    ...evidence that a `denial of visitation would be harmful or detrimental to the welfare of the child.'" (quoting Williams v. Williams, 24 Va.App. 778, 485 S.E.2d 651, 654 (1997))). Contra In re Marriage of Winczewski, 188 Or.App. 667, 72 P.3d 1012, 1030 (2003) (Deits, C.J., concurring) (f......
  • Simms v. Alexandria Dep't of Cmty. & Human Servs., Record No. 0479-21-4
    • United States
    • Virginia Court of Appeals of Virginia
    • 5 Abril 2022
    ...Amendment and "state interference with that right must be justified by a compelling state interest." Williams v. Williams , 24 Va. App. 778, 780, 485 S.E.2d 651 (1997), aff'd as modified , 256 Va. 19, 501 S.E.2d 417 (1998). In any event, our case law makes clear that these due pro......
  • Request a trial to view additional results

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