Actual harm standard: Grandparent visitation statute unconstitutional

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Virginia’s newly amended nonparental visitation statute — Code § 20-124.2(B2) — is unconstitutional because it doesn’t require showing that the grandchildren will suffer “actual harm” without the visitation, a Washington County judge has held.

The grandparents claimed that, under the new statute, they didn’t need to show actual harm to the children without the visitation, just that it was in their best interest.

Judge Frederick A. Rowlett of the Washington County Circuit Court disagreed.

“Grandparents’ position based on a plain reading of Code § 20-124.2(B2) that such visitation may be awarded under a best interest of the child standard, without imposition of a predicate actual harm standard, cannot, in this Court’s opinion, withstand constitutional scrutiny under appliable case law,” he wrote. “Subsection (B2), as applied here, violates 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.”

The case is In re: Williams, et al. v. Panter (VLW 023-8-060).

Visitation denied

Thomas Williams and Maggie (Williams) Panter had three children. After Thomas’ death in 2017, a conflict with the paternal grandparents led Panter to stop letting them visit her children.

When the grandparents were denied visitation, their appeal to the circuit court was delayed by the COVID-19 pandemic and other factors. Meanwhile, the General Assembly amended Code § 20-124.2, the custody and visitation statute by adding subsection (B2).

Under Code § 20-124.2(B2), a court may order grandparent visitation if a preponderance of the evidence showed that the grandparent was related to the deceased or incapacitated parent who consented to their visitation, and then only if visitation is in the child’s best interest.

Lacking evidence of actual harm to the children caused by their inability to visit with them, the grandparents relied on the lower best interest standard of Code § 20-124.2(B2). They argued that a preponderance of the evidence showed that the deceased father would have consented.

The court agreed with Panter and found that Code § 20-124.2(B2) was unconstitutional based on its failure to meet the actual harm standard.

The grandparents moved for reconsideration and the court allowed further briefing on the constitutionality of the statute.

Parental rights

Asserting that the grandparents’ reliance on Code § 20-124.2(B2) couldn’t withstand constitutional scrutiny under applicable case law, Rowlett first cited 1998’s Williams v. Williams.

The Supreme Court of Virginia in Williams affirmed that the best interest of the child standard may only be considered in determining grandparent visitation after a finding of harm in the absence of visitation.

Although it didn’t expressly incorporate the actual harm standard, the Williams court concluded that Code § 20-124.2(B) was constitutional based on its directive for courts to “give due regard to the primacy of the parent-child relationship.”

Two years later, the U.S. Supreme Court addressed nearly identical facts to the instant case in Troxel v. Grandville. The high court said Washington’s statute was unconstitutionally excessive in scope and cited Williams’ holding that a finding of harm was required to award visitation.

Since then, the Court of Appeals has twice revisited Code § 20-124.2.

In Dotson v. Hylton, the court declared “[w]hen only one parent objects to a grandparent’s visitation and the other parent requests it, the trial court is not required to follow the standard enumerated in Williams.”

The appeals court in Griffin v. Griffin was presented with nonparental visitation over a fit single parent’s objection. Absent proof of actual harm, the court said, “the constitutional liberty interests of fit parents take precedence over the best interests of the child.”

The Griffin court said that meant “a court may not impose its subjective notions of best interests of the child in derogation of parental rights protected by the Constitution.”

Liberty interest

Rowlett pointed out that Code § 20-124.2(B2) didn’t include subsection (B)’s directive that courts give “due regard to the primacy of the parent-child relationship” as relied on by the Williams court.

“This Court must therefore infer that upon amending Code § 20-124.2 by the passage of subsection (B2) the legislature intended to exclude the actual harm standard established in Williams for the subset of grandparents included within its scope who are petitioning for child visitation,” the judge wrote.

Further, Rowlett inferred that the legislature intended to provide grandparents with the benefit of the same rule established in Dotson. That presented an “anomalous statutory scheme” where grandparents could have a legal status that is essentially on par with that of the surviving parent.

“Despite 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 and reaffirmed in Williams and Troxel,” Rowlett explained.

And Griffin made it clear that such a fit and widowed mother has “‘[t]he liberty interest at issue in this case — the interest of [a mother] in the care, custody, and control of [her] children,’” the judge added. “The shared fundamental liberty interest of mother and father in the care, custody, and control of their children, in short, ended with father’s death, leaving mother in possession of it.”

Rowlett refused to conclude that the father’s death gave rise to a compelling state interest in diminishing Panter’s liberty interest based posthumously upon what may have been the father’s preference with whom his children would associate.

“To sustain a contrary position would be offensive to the Due Process Clause under the teachings of Troxel, Williams and Griffin,” he said. “Therefore, in the adjudication of the petitions of nonparents — grandparents in this case — seeking court-ordered visitation with this mother’s children pursuant to Code § 20-124.2, a predicate showing of actual harm to the children without the visitation must be the appliable evidentiary standard. Subsection (2B) of the statute fails to incorporate that standard, thus rendering the provision unconstitutional as applied in this case.”

The judge granted Panter’s motion to strike the grandparents’ evidence and dismissed their appeal.

Constitutional concerns

Abingdon litigator Catherine O’Brien represented the grandparents. She expected the judge would speak with the children to determine their best interests until she learned days before the hearing that the judge would apply the actual harm standard.

“We disagree with the judge’s analysis, but I can’t fault his logic,” O’Brien told Virginia Lawyers Weekly, adding that her clients intend to appeal.

O’Brien currently represents other grandparents affected by this decision.

“I am advising them that we should hope for the lower standard but be ready with evidence to meet the higher one,” she said.

As part of the Family Law Coalition, Larry Diehl of Barnes and Diehl in Richmond reviewed the amendment to Code § 20-124.2(B2) before its enactment.

“This was a constituent bill and the first version included a long list of factors for the court to consider,” he said. “We understood the sympathy about the issue but also recognized the constitutional issue.”

Thinking it was narrowly tailored to situations like Dotson where two fit parents disputed grandparent visitation, the coalition supported the final version of the amendment.

“We still had concerns about the constitutionality of the amendment, as did legislative services,” Diehl said. “But we were willing to give it a shot only out of respect for not having a worse bill come in with other factors that clearly didn’t meet the actual harm standard.”

Patricia Smith of Bradford & Smith in Abingdon represented Panter. She had no comment pending appeal.