Children - § 3-2 (C)(2) - § 3-2 (D)

    2. Visitation

2019 --- Bedell v. Price, Va. Ct. Appeals, No. 1687-18-2
The circuit court erred in awarding visitation to a man, Matzuk, who was not the child’s biological father. The interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the United States Supreme Court (quoting Troxel v. Granville 530 U.S. 57, 65 (2000)). As a result of this liberty interest, a parent enjoys a favored position when it comes to custody and visitation issues regarding his or her child. Regarding custody, all parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody. Furthermore, a court addressing visitation issues related to a child must give at least some deference to the wishes of a fit parent. Although parents are due a special solicitude regarding matters of custody and visitation, there are circumstances, albeit very limited, in which third-party custody and visitation may be appropriate (citing Code of Virginia § 20-124.2(B)). For a court to order such a third-party arrangement requires a detailed inquiry into the fitness of the parents, the relationship of the third-party to the parents and the child, the best interests of the child, and many other factors.

Here, although, Matzuk signed an acknowledgement of paternity when the child was born (and had participated in the custody and care of the child for several years), the trial court in a separate proceeding disestablished Matzuk’s paternity in the child and established paternity in another man, Bedell. Despite this evidence, the circuit court in this proceeding determined Matzuk to be a parent of the child and awarded Matzuk visitation. As a result of this error, the circuit court failed to conduct an inquiry regarding possible third-party visitation for Matzuk, giving due consideration to Mother’s and Bedell’s constitutionally protected liberty interests in parenting their child. Accordingly, the case is reversed and remanded so that the circuit court may conduct such a hearing.

2015 --- Harvey v. Flockhart, 65 Va. App. 131
Although grandparents are included in the definition of parties “with a legitimate interest” in a child’s custody and visitation pursuant to Code of Virginia § 16.1-241(A), Code of Virginia § 16.1-241(A) specifically states that a party whose interest in a child derives from or through a person whose parental rights have been terminated by court order is not a person with a legitimate interest in the child’s custody and visitation. Here, the grandparents’ interest in the children plainly derived from their status as the children’s biological grandparents. Accordingly, because an adoption order had been entered fully severing the children’s legal ties to their previous family, the children’s biological grandparents were no longer parties “with a legitimate interest” pursuant to Code of Virginia § 16.1-241(A).

2013--Richter v. Manning, Va. Ct. of Appeals, Unpublished, No. 1166-12-4
Mother prohibited all contact of the child with his paternal grandparents after an incident between herself and the child’s grandmother. The trial court found that the lack of visitation caused no actual harm to the child, despite the child’s close relationship with his grandparents prior to the incident and the grandparent’s role as a link to the child’s deceased father. The trial court found that the child had not shown any actual or foreseeable signs of harm, such as being withdrawn or oppositional, doing poorly in school, or not getting along with his peers.

2008---Stadter v. Siperko, 52 Va. App. 81
There is a presumption that fit parents act in the best interests of their children…Accordingly, so long as a parent is fit, there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children. (Citing Troxel v. Granville, 530 U.S. 57 (2000)). Accordingly, a court awarding non-parent visitation over a fit parent’s objection based on the child’s best interests must first find clear and convincing evidence that a denial of visitation would be harmful or detrimental to the welfare of the child. (Citing Williams v. Williams, 24 Va. App. 778, 485 S.E.2d 651 (1996). To justify a finding of actual harm under the clear and convincing standard, the evidence must establish more than the obvious observation that the child would benefit from the continuing emotional attachment with the non-parent. That is not what is meant by “actual harm” to the child’s health or welfare. (Citing Griffin v. Griffin, 41 Va. App. 77, 581 S.E.2d 899 (2003)).

2008---Wise v. Valezquez, Va. Ct. of Appeals, Unpublished, No. 3094-07-2
Trial court did not err in granting grandmother’s petition to amend a prior visitation consent order without first applying the “actual harm” standard. Granting the petition did not actually expand the scope of grandmother’s visitation beyond that set forth in the initial consent order. In fact, the grandmother received the same amount of visitation while the father received greater discretion to determine the timing of that visitation. Because visitation was not expanded, application of the “actual harm” test was unnecessary.

Trial court did not err in failing to explicitly find that the visitation awarded to grandmother was in the child’s best interests. The trial court stated that the child had “become integrated into and part of her [maternal extended] family,” and that “the case involves a deceased mother and more than an emotional bond...there’s a relationship that’s been established here that maintains ties to [the child’s] heritage and memory of her mother.” The Court of Appeals found that, based on the child’s age, memory, identity, development, heritage, and significance of relationships with the mother’s family in the mother’s absence, the trial court “implicitly” made a finding regarding the best interests of the child when making its statements on the record.

2006---O’Rourke v. Vuturo, 449 Va. App. 139
Trial court’s finding of actual harm supported award of visitation with former stepfather.

2006---Rice v. Rice, 49 Va. App. 192
Trial court did not abuse its discretion in denying paternal grandparents petition for visitation rights based on the best interest of the child given that following visitation with the grandparents there was an exacerbation of child’s problem behavior linked to sexual abuse.

2006---Surles v. Mayer, 48 Va. App. 146 
Man who acted as a surrogate father to a boy for almost three years was a person with a legitimate interest for the purposes of determining visitation rights but the court did not err in denying visitation rights where petitioner did not allege that actual harm would occur to the boy in the absence of visitation.

2004---Yopp v. Hodges, 43 Va. App. 427
The trial court did not err in refusing to apply the “actual harm” test normally applicable in visitation disputes between natural parents and third parties where, despite mother’s objection to grandparent visitation, the child’s natural father did not object to the visitation and instead joined in the grandparents’ request. In applying Dotson v. Hylton, 29 Va. App. 635 (1999), the Court of Appeals held that, because father expressly supported the grandparents’ request for visitation, and because there was no evidence that father was unfit, the “actual harm” test enunciated in Williams v. Williams, 24 Va. App. 778 (1997) did not apply. The trial court properly applied the “best interests” test in determining grandparent visitation.

The trial court did not err in awarding visitation to child’s grandparents over mother’s objection where evidence established that the grandparents had been a significant part of the child’s life, had routinely housed and cared for the child, provided him with meals every evening, ensured that he attended school and finished his homework, and participated in recreational activities with the child. The court expressly noted that the grandparents provided “stability” in the child’s life that was otherwise lacking in the mother’s household, due to the frequent on again, off again relationship mother had with her new husband.

2004---Long v. Holt-Tillman, Va. Ct. of Appeals, Unpublished, No. 1434-03-3
Trial court did not err in holding that the parents had voluntarily relinquished custody of the child by entering into a consent order granting joint legal custody to the mother and the grandmother, but sole physical custody to the grandmother.  The consent order was not merely pro forma,but was an adjudication on the merits by the court in a proceeding where both parties were contesting custody.   Thus, the parents were not entitled to the parental presumption, and instead had the burden to prove that circumstances had changed to such an extent that placing the child in their custody was in the child’s best interests. 

Trial court did not abuse its discretion by holding that, for the time being, custody was to remain with the child’s grandmother rather than with the parents.  Despite the fact that the parents had made concerted efforts to stabilize and improve their own lives in an attempt to provide a suitable home for the child, the child had known no other home than the grandmother’s, and enjoyed a strong relationship and a stable living environment with the grandmother.

2004---Merritt v. Gray, Va. Ct. of Appeals, Unpublished, No. 2003-03-4
Trial court did not err in refusing to apply an “actual harm” analysis, where the partents of a child did not contest that it was in the child’s best interests to have visitation with his maternal grandmother.  Although a court may not interfere in a parent-child relationship by ordering visitation with a non-parent over a parent’s objection absent a showing of actual harm, the parties in this case entered into a prior agreement, which was embodied in several subsequent consent orders, that visitation with the grandmother was in the child’s best interests.  The parents never voiced opposition to the visitation occurring, only regarding when it was to occur. 

Trial court did not err in holding that parents waived their constitutional rights, to a limited degree, with regard to the care and control of their child, by entering into a consent order announcing their agreement that visitation with the grandmother was in the best interests of the child.  Although the parents have a fundamental liberty interest to determine how to raise their children and are therefore entitled to a presumption that they act in their children’s best interests, the parents here relinquished that presumption with regard to visitation scheduling when entering into a consent order which provided for the visitation and asked the court’s assistance with regard to scheduling it.  The trial court correctly held that, although the presumption would be reinstated if the parents objected to the grandmother having visitation at all, the parents here objected only to the court’s holding that they were no longer entitled to unilateral control over the scheduling of that visitation.

2003---Griffin v. Griffin, 41 Va. App. 77
The trial court erred in awarding husband visitation with a child, born to wife and another man during husband and wife’s separation, over the objection of wife without first determining whether actual harm would result from the denial of visitation. Although husband was initially under the impression that the child was his and developed an emotional parenting relationship with the child, those facts are considerations under the best interests standard, which, in cases involving a contest between a natural parent and a non-parent, is to be applied only if the trial court first finds that “an actual harm to the child’s health or welfare” would occur without such visitation.

The actual harm test cannot be satisfied by a showing that it would be better, desirable, or beneficial to a child to have visitation with a non-parent. To justify a finding of actual harm under the clear and convincing burden of proof, the evidence must establish more than the obvious observation that the child would benefit from the continuing emotional attachment with the non-parent. Undoubtedly, losing such a relationship could cause some measure of sadness and a sense of loss which, in theory, could be emotionally harmful. However, that is not what is meant by “actual harm.”

2003---Harris v. Boxler, Va. Ct. of Appeals, Unpublished, No. 0604-03-3
Trial court did not err in holding that the paternal grandmother and incarcerated father of the child failed to prove by clear and convincing evidence that visitation with the grandmother would be in the child’s best interests.  Six weeks after marrying, mother and father separated.  Prior to the birth of the child, father was convicted and incarcerated for sexually assaulting and abducting mother.  Mother later remarried, and the child, almost two-years old at the time of trial, had had no relationship with the father or grandmother since birth.  Furthermore, grandmother had previously rejected mother’s offer to allow grandmother to visit the child at mother’s home, insisting instead that she be allowed to take the child to visit the incarcerated father. 

2003---O’Leary v. Moore,  Va. Ct. of Appeals, Unpublished, No. 3187-02-2
Trial court did not err in denying grandmother’s petition for visitation, based on objection by the child’s father, who was the child’s sole surviving parent.  The trial court refused to hold that an exception to the Williams rule should be granted based solely on the fact that child’s mother was deceased, thereby leaving the family “not intact.”

1999---Dotson v. Hylton, 29 Va. App. 635
Paternal grandmother was entitled to post-divorce visitation with minor granddaughter, even though Father had been incarcerated and Mother objected to grandmother’s visitation, where Father wished grandmother to have such rights, child spent substantial time with her grandmother, and grandmother was mentally, physically and morally fit and able to care for child. Williams standard does not apply when parents disagree about third party visitation.

1997---Williams v. Williams, 24 Va. App. 778
Dispute between the parents of a child in an intact family unit and the child's grandparents over grandparent visitation.  Interpretation of Va. Code §20-124.2(B).

The right of parents to raise their children is a fundamental right protected by the Fourteenth Amendment.

Non-parent visitation can be ordered only if the court finds an actual harm to the child's health or welfare without visitation.

1996---Thrift v. Baldwin, 23 Va. App. 18
Grandparents and siblings have standing to seek visitation with children despite their adoption.

    (D)  Legal Custody

2019---Armstrong v. Armstrong, Va. Ct. of Appeals, No. 0215-19-3
The trial court did not abuse its discretion in awarding mother and father joint legal custody of their child subject to an existing protective order prohibiting direct contact between the parents. Va. Code § 20-124.1 does not make direct communication between the parties a prerequisite for joint legal custody. The parties were free to communicate through counsel or other agreed upon third parties without violating the terms of their no contact protective order. The court awarded joint legal custody, in part, out of concern that father would use primary physical custody to strategically eliminate mother from the child’s life.

2011---Tucker v. Clarke, Va. Ct. of Appeals, Unpublished, No. 2496-09-4
The trial court did not err in granting father decision-making authority regarding the child’s education and daycare arrangements, where the mother had placed the child in three different day care facilities in three years, had used at least three different baby sitters in the same period, and had used a nanny to care for the child for extended periods of time, even when the mother wasn’t working. Where the parents’ exercise of joint responsibility for and authority to make decisions for the child is not consistent with the child’s best interest, the court may modify their joint legal status by fashioning and applying any combination of joint legal and physical custody which the court deems to be in the best interest of the child.

2010---Chorbaji v. Simpson, Va. Ct. of Appeals, Unpublished, No. 2910-08-4 
The trial court did not err in finding good cause, pursuant to Va. Code §20-124.6(A), to prohibit husband from contacting the child’s health care or day care providers, based on evidence that husband had interfered with and tried to damage the relationship between the child and his doctor, and had caused the child’s day care provider to quit.

2010--- Bilski v. Bilski , Va. Ct. of Appeals, Unpublished, No. 1895-09-4 
Trial court did not err in refusing to require mother to grant father access to a School Age Child Care account that mother opened and maintained for the child. Joint legal custody does not require equal access to financial accounts or equal authority to manage financial matters.

1999---Brown v. Brown, 30 Va. App. 532
Trial court did not err in refusing to award wife sole or joint legal custody or to prohibit father from home-schooling children. The children were performing well in the home-schooling environment, and, despite initial resistance to mother’s involvement, father made efforts to keep her apprised of the children’s progress, involved her in their extra-curricular activities, and agreed that it would be beneficial for her to visit their classroom on occasion. The home-schooling curriculum had been approved by the local board of education. The children had been in the home-schooling program for almost two years, and evidence revealed that the home-schooling allowed each parent a larger amount of time with the children than more traditional educational options. Court held that mother failed to meet her burden to show material change in circumstances requiring a change in legal custody to safeguard the best interests of the children.

1994--- In Re: Jessica Margaret O’Neil, 18 Va. App. 674
Legal custody is defined as the right to have physical charge of the child, to determine and redetermine where and with whom the child shall live, the right and duty to protect, train and discipline the child and to provide the child with food, shelter, education and ordinary medical care, all subject to any residual parental rights and responsibilities.

1954--- Judd v. VanHorn, 195 Va. 988
The parents of minor children are declared their natural guardians, and upon death of either parent the survivor shall be the natural guardian. Where custody of children is granted to one party by a divorce decree, such grant does not forever cut off and bar the other parent’s right to custody, but only establishes the right of custody between the two spouses during their lives. Upon the death of a parent who has held custody under a divorce decree, the right to custody automatically inures to the surviving parent, provided of course, that the surviving parent is a fit custodian for the child.

(Return to top of page)

Previous Page | Next Page