*1 Williams, III, et al. Thomas O.
v. IV, O. Williams, et al. Thomas Record No. 971616 June Present: All the Justices *2 H. Gregory Campbell, Jr. for appellants. & Dorsey brief),
Harriet D. on for (Dorsey Hartley, appellees. JUSTICE COMPTON the delivered Court. opinion
This is a between the in an fam- a child intact dispute parents unit and the child’s ily over paternal grandparents grandparents’ right of visitation with the child. Williams, IV, Williams, Thomas O.
Appellees Sarah Hasty husband and wife who reside are the natural of a together, parents Williams, daughter bom on March Thomas O. 1991. Appellants III, and S. Frances Williams are child’s paternal grandparents, reside who near parents Blacksburg.
The There child’s is intact. is no evidence of family parental or The abuse are members of the commu- neglect. parents respected nity which live. are they morally They mentally, physically, fit, financial, educational, and are their capable meeting daughter’s moral, and social needs. until maintained contact parents regular grandparents announced after
February 1994 when parents “counselor,” a North that were consulting with Carolina from “detaching” withdrawing relationship previously existed with the grandparents. filed a visitation seeking
Eventually, grandparents their Juvenile granddaughter. Montgomery County and, the Circuit Court Court on appeal, Relations District Domestic ordered visitation. of Montgomery County con- “benefit from that child would circuit court decided interfere that would not her such visitation tact with grandparents”; or emotional such with the child’s health development; unit”; minimal into the intrusion family “is care love” the child and “have the ability adequately “obviously her”; and that the child’s best interests would be served for with her grandparents. having that Code
On the Court asserted Appeals, appeal visitation, 20-124.2(B), as it interferes with nonparent pertains and, hence, in child violates the Four- autonomy rearing teenth Amendment to the United States Constitution. The statute per- others, to seek visitation. mits grandparents, here, As the statute “The court shall pertinent provides: due give regard relationship primacy parent-child best clear and evidence that the convincing showing by interest of the child would be served award or visita thereby *3 other a interest.” Code 20-124.1 legitimate tion with person that the with a is to be term interest” provides “person includes, construed and is not limited to “broadly former blood relatives and family stepparents, stepparents, members.” of there in
The Court held is no constitutional Appeals problem statutes. In so the court concluded ruling, applicable appellate is a that the of in their child fundamental right raising right Williams, v. 24 Fourteenth Amendment. Williams protected by 778, 783, 651, (1997). of Va. 485 S.E.2d 654 The Court App. further that state with a fundamental decided interference Appeals interest, that to con- must be state right justified by compelling interest, stitute a “state interference with a right compelling parent’s his or her child must be of raise for purpose protecting or child’s health welfare.” Id.
The Court of then Appeals interpreted per- the state to interfere to raise their child mit of parents showing by court to order by allowing nonparent clear and evidence the best interests of the child convincing 784, at 654. would be served such visitation. Id. at 485 S.E.2d However, the Court of said that the in the language forego- Appeals that a court “shall due give statute ing regard primacy evinces intent the General parent-child relationship,” Assembly’s the court to find that a denial visitation would require nonparent be detrimental to the child’s welfare before die court may interfere with the Id. constitutionally parental rights. protected words, said, “For
In Court the constitutional Appeals satisfied, be before visitation can be ordered over the requirement of the child’s must an objection court find actual harm to parents, 784-85, the child’s or health welfare without such visitation.” Id. at S.E.2d at A 654. court reaches consideration of the “best inter- in ests” standard after determining visitation it finds harm if visitation is not ordered. Id. at at S.E.2d 654. The Court held that the circuit failed to make Appeals denied, of harm if required finding visitation were reversed the circuit and remanded the case for reconsideration of visitation in accord with standard it set Id. forth.
We with the Court of agree discussion Appeals’ holding there no constitutional statutes and with infirmity applicable it, as court’s we have summarized interpretation, placed upon however, statutes. We do not that the agree, case should be remanded court; to the circuit a remand is There is no unnecessary. allegation that denial of visitation would be detrimental to proof grandparent welfare, this child’s and no further consideration that issue at this stage is warranted. proceeding we will modify Court
Consequently, judg Appeals’ ment to eliminate the aof remand and will affirm the requirement so judgment modified. In we will doing, deny grandparents’ for will visitation and dismiss the proceeding. and dismissed.
Modified, affirmed, HASSELL, JUSTICE with whom JUSTICE KINSER dissent- joins, part result. concurring
I. dissent, 20-124.2(B), I I in because believe that Code part, in this violates the Fourteenth Amendment of the applied proceeding, United I States Constitution. note that three members this Court Court agree with as modified. judgment Appeals
n. 20-124.2(A) states part: chil- minor visitation of custody in which “In case issue, or district in a circuit at whether dren is due consideration adjudication, upon shall provide prompt including facts, arrangements, and custody all the children, con- to other prior maintenance for support for deter- matter. . . . procedures in the arising siderations insofar as shall arrangements and visitation mining custody ends of justice, preserve with the and consistent practical, ...” members. family and resources of dignity states: of this 20-124.2(B), subject appeal, which is Code § con- the court shall give primary “In determining custody, The court shall of the child. to the best interests sideration contact continuing children of assure minor frequent to share and encourage parents when both appropriate, parents, As between the their children. in the of rearing responsibilities of law in or inference there shall be no presumption parents, shall due regard primacy favor of either. The court give a showing by relationship may upon of the parent-child the child that the best interest of clear and evidence convincing to any or visitation would be served award thereby award interest. The court may other with a legitimate person custody.” or sole joint custody
in.
A. initiated by filing petition, this proceeding The grandparents Juve- 16.1-241(A)(3), the Montgomery County to Code pursuant District Court. nile and Domestic Relations visi- them obtain court enter an order permitting that the requested The parents opposed tation with granddaughter.
petition. an court conducted relations district and domestic that the entered an order parents
ore terms hearing requiring within healing “to counseling promote grandparents participate the benefit of ... for communication [the family improved the counselor to report and directed others” among granddaughter], ordered that the “grand- The court also the court within 45 days. a.m., from 10:00 Saturday other every shall have visitation until from 3:00 Thursday p.m., . and every until 6:00 . . p.m. *5 24
6:00 the court conducted another ore tenus hear- p.m.” Subsequently, and ing entered a final order which the visita- granted grandparents tion and the and required parents grandparents joint participate and family counseling court service unit of through juvenile domestic relations district court.
B. The and parents domestic relations district appealed court’s order to the circuit court. The filed motion dis- miss the that grandparents’ petition asserting, things, among Code 20-124.2(B) violates constitutional con- rights, parents’ ferred the Fourteenth Amendment of the States United Constitu- tion, to their raise child deem appropriate.
The circuit court conducted an tenus that hearing ore found the granddaughter’s is intact. evidence of “family is [There no] parental abuse are neglect; members parents] respectable [the are community; mentally, morally parents] physically, [the fit; and parents] are capable meeting granddaughter’s] [the [the financial, educational, moral, and social needs.”
The circuit court found also that: are men- “[t]he fit; are tally, physically, morally grandparents] responsible, [the mature, and members of their . . . respected community; grand- [the benefit her daughter] will from contact with grandparents, [who live] her]; one block . . . not visitation will apart grandparent [from interfere with health or granddaughter’s] emotional [the development; and . . . love grandparents obviously granddaughter] [t]he [their have the care for her.” The ability circuit court adequately rejected claim, the parents’ constitutional and entered a final judgment award- grandparents visitation with their for 10 hours granddaughter week. per
C. circuit court to parents appealed judgment Court of and reasserted their chal- Virginia constitutional Appeals held lenge. Court that in child Appeals parents’ autonomy is a fundamental rearing right Fourteenth Amend- protected ment of United States Constitution that state interference with that must be state interest. justified by compelling Court of concluded constitution- Appeals because statute ally permissible implicitly requires finding to the or detrimental be harmful would of visitation a denial remanded proceeding The Court Appeals grandchild. v. Wil- Williams findings. make such that it could court so circuit (1997). The 778, 784-85, S.E.2d liams, 24 Va. App. to the Court cross-error assign and the parents grandparents appeal, *6 judgment. Appeals’ IV. This the issue whether to brief directed the litigants Court to the award visitation matter jurisdiction court had subject circuit issue between the child is not at even though 16.1-241, argue relying upon The grandparents, parents. matter jurisdiction adjudicate court did have subject that the circuit visita- that a court consider this parents respond proceeding. the context of a custody dispute tion by non-parents I with parents. before the court. disagree otherwise observe, filed their theAs grandparents properly court, district invoking domestic relations juvenile rele- This statute states in Code 16.1-241. court’s under jurisdiction vant part: shall relations district court
“[Ejach and domestic juvenile cases, all matters proceed- . . . . over have . . jurisdiction involving: ings visitation, control or disposition custody, support,
“A. The child: aof is a subject or Whose custody, support
“3. In such cases jurisdic- determination. or controversy requires of courts hav- and not exclusive tion shall be concurrent with 16.1-244; jurisdiction, except provided equity matters court to adjudicate authority juvenile “The visitation, control or disposi- involving custody, support, of peti- to the consideration a child shall not be limited tion of shall mother, but father or legal guardian filed tions a legiti- with filed at time any by any party include petitions shall be interest therein. A party mate interest to, include, not be construed shall limited broadly blood former relatives grandparents, stepparents, stepparents, members. . . .” 16.1-241. family 16.1-296,1 in effect on the date parents perfected from and domestic relations district court to appeal juvenile the circuit stated in relevant part: “A. or From final order judgment juvenile or interests of its affecting rights within any person coming an be taken ten jurisdiction, within from appeal may days of a final entry order conviction. . . . judgment, “I. In cases all on the circuit court in the appeal, disposi- tion of cases such shall have all the and authority powers granted juvenile and domestic relations chapter district court.” statutes, these I would hold that the
Applying *7 domestic district and relations court the circuit court had mat- subject ter issues jurisdiction to the raised in this and adjudicate proceeding that the have a statutory to file grandparents right petition seeking 16.1-241(A) broad privileges. confers jurisdiction § the juvenile domestic relations district courts to adjudicate 16.1-241(B) visitation issues. Code the and domes- grants juvenile § tic relations district courts visi- jurisdiction petitions require Indeed, tation the determinations. General Assembly specifically (B) mandated in Section of this statute that the juve- authority nile court to matters visitation shall not be lim- adjudicate involving to ited consideration of filed but that any party petitions parents, interest, awith file such including peti- 16.1-296(A) tions. Code final order to permits party appeal any or judgment juvenile the the interests affecting rights the “any within” the court’s person coming juvenile jurisdiction And, 16.1-296(1) the the circuit court. circuit court grants 4.1 of 16.1 of the Code authority granted Title power by Chapter the and domestic relations district courts. juvenile 1 Code amended, 16.1-296 was but those do not affect dis amendments subsequently of this position appeal. 756-57, 754, 263 S.E.2d Furthermore, Va. King, v.West 1977, 16.1-241, as it existed (1980), we held that hence, court, and, on a circuit court appeal, a juvenile did not vest the objection visitation over to order grandparent with jurisdiction Assembly subsequently The General a child’s custodial parent. 16.2-241, granting jurisdiction specifically amended Code § to consider visitation district court and domestic relations juvenile filed by grandparents. petitions this Court agree all members of
I observe that seven today, and the circuit court relations district court and domestic five jus- the grandparents’ petition, had jurisdiction adjudicate file a statutory right peti- that the have grandparents tices agree and Koontz Justices Keenan Only tion seeking privileges. a visita- to file have no statutory believe that grandparents in this on the facts proceeding. tion petition particular V. A. not contra- that Code does argue grandparents Amendment States Constitution. of the United vene the Fourteenth that, “although practical disagreement contend grandparents conflict is the real legal and grandparents, here is between parents is to bal- challenge state. specific between consti- granddaughter’s interest in ance ... state’s protecting Con- Amendment of the United States under the First tutional rights and ... . . . parents’ stitution to visit her grandparents the United Amendment of under the Fourteenth constitutional rights life.” Continuing, granddaughter’s] States Constitution to control [the 20-124.2 16.1-241 require assert that Code §§ and the interests the interests of the state that a court balance rights balanced the circuit court has appropriately parents; evidence that *8 and convincing all and found clear by parties her to be served by interests would requiring best granddaughter’s that the challenged have limited visitation with her grandparents; that contend statute is constitutional. Responding, them, because is unconstitutional 20-124.2(B), as to applied to conduct Amendment rights their Fourteenth statute infringes upon intrusion. free from governmental affairs family 28
B. Amendment The Fourteenth of the United States Constitution in relevant that shall state . . . provides part any deprive person “[n]o life, of or without due law . . . .” liberty, of U.S. property, process XIV, Court, Const. amend. 1. United States Supreme explain Amendment, accorded by Fourteenth has protections stated:
“While this Court has not to with define exact- attempted ness the term liberty guaranteed, thus has received much consideration and of some the included have been defi- things doubt, stated. Without it denotes not nitely merely freedom from restraint also the bodily individual to con- tract, life, to of engage the common of to occupations useful marry, establish home and acquire knowledge, children, up God to the dictates of bring worship according conscience, his own those generally enjoy privileges at long recognized common law as essential to the orderly pur- Nebraska, Meyer suit of free men.” v. 262 happiness U.S. 390, (1923). 399 Cleveland, Court observed in Moore v. Supreme East 431 494,
U.S. (1977), 499 that it “has of long freedom recognized choice in of matters is personal life one of the marriage family liberties the Due Process Clause Fourteenth protected by LaFleur, Amendment” Educ. v. 414 Cleveland Bd. U.S. (quoting 632, (1974)). 639-40 the United Additionally, States Court Supreme has stated its “historical that freedom of choice recognition personal matters family life is fundamental interest liberty protected Amendment,” Kramer, 745, the Fourteenth v. 455 U.S. 753 Santosky (1982), there “a realm of life which the ‘private family ” Moore, state cannot enter.’ 431 at Prince U.S. 499 v. Mas- (quoting 158, sachusetts, (1944)). 166 U.S. Accord Lassiter v. Depart- Servs., 18, (1981). ment Soc. 452 U.S. Court of the States Supreme United has made clear that
state
interfere
raise children
when
parent’s right
the state
acts
its
the health
police power
safety
protect
Yoder,
(Amish
child.
(1972)
See Wisconsinv.
406 U.S.
chil-
dren would not be harmed
an Amish education instead
by receiving
Prince,
school);
attending
29
interest in preventing
state
finding
magazines,
religious
Society
v.
child); Pierce
to the
injury
physical
psychological
decisions to send
510,
Sisters,
(1925) (parents’
268 U.S.
534
children).
harmful to
not inherently
schools was
children to private
Here,
rights
fundamental
with the parents’
I am concerned
Therefore,
statute
deem
appropriate.
raise their child
aby compel
limit
can
be
justified
those rights
which seeks to
drawn
interest,
must be narrowly
and such statute
state
ling
v.
Washington
at stake.
state interest
the legitimate
express only
2258,
(1997); Reno v.
2268
117 S.Ct.
Glucksberg, _ U.S. _, _,
Thus,
292,
must consider
Flores,
this Court
(1993).
507 U.S.
301-02
case,
find
20-124.2(B), as
in this
requires
applied
whether
interfere with the
before a court can
state interest
compelling
by awarding
to raise their child
fundamental rights
parents’
objections.
over
parents’
VI.
A.
is clear and
contained
language
and, therefore,
than the
look no further
plain
I would
unambiguous
to ascertain its
contained in the statute
meaning
language
817;
205-206,
City
S.E.2d at
“ of statutes the constant ‘While in the construction effect to the endeavor of the courts is to ascertain give must be gathered that intention intention of legislature, used, would unless a literal construction from the words has used a manifest Where absurdity. legislature involve cannot and definite the courts put words of a plain import holding legis- construction which amounts them a ” Barr v. actually lature did not mean what it has expressed.’ 292, 295, Inc., 240 Va. 396 & Country Properties, Town 924, Hall, 672, v. 161 Va. (1990) Watkins S.E.2d 674 (quoting 930, 445, 255 Va. at (1934)); accord Supinger, 172 S.E. 447 817-18; 206-07, Heritage at v. Southern Haislip S.E.2d 495 135, 265, 268-69, (1997); Co., S.E.2d 137 Va. 492 Ins. 254 528, 88, 91, (1997); 530 S.E.2d Willey, Abbott v. 253 Va. 479 Given, 221, 225-26, 502, v. Va. Weinberg 476 S.E.2d (1996).
B. determinations, In making and domestic rela- tions district court must with the statutes contained in Title comply Code, entitled, 6.1 of the Visita- Chapter “Custody *10 tion for Arrangements Minor Children.”2 This contains chapter numerous statutes which relate to and Code visitation. 20-§ 124.1, 6.1, which is in contained makes clear Chapter grandpar- ents and certain other are deemed non-parents, statutory to have interest child visitation.3
Code 20-124.2 is entitled “Court-Ordered and Visita- Custody tion authorizes a court to award Arrangements.” visitation to a with a interest. Code non-parent 20- legitimate 124.2(B) the also establishes standard that a court must when apply a visitation determination. The court’s making determination must be based clear and upon showing by evidence the best convincing interests child would be an served award of visitation. 20-124.3, establishes factors that court shall standard, consider best when interests the child applying states in part: — 20-124.3. Best interests of the child. In determining
Ҥ best interests of a child for . . . determining visita- purposes tion ... the court shall consider arrangements the following:
“1. and and mental condition of the age physical child, due consideration to the child’s devel- giving changing needs; opmental
“2. and and mental age physical condition each parent;
“3. The relationship between each each existing parent child, due consideration to involvement giving positive is otherwise best interest of the child.” broadly must also ents, blood relatives appealed If the construed to a circuit apply § 20-124.1 judgment properly the statutes before the states of the includes, family which considers the in relevant contained court. members is not The term in this and domestic part: provided any limited to “ Chapter. request shall be ‘[pjerson relations such for broadly with a visitation de party district court construed has intervened stepparents, novo, to accommodate interest’ shall be the circuit former subsequently the suit or steppar court life, with the child’s assess and meet ability accurately emotional, child; intellectual and needs of the physical child, “4. The needs of due consideration to giving child, important but not relationships including members; limited to and extended siblings, peers family “5. The role which each has and will parent played play future, child; in the and care of the upbringing “6. The of each propensity parent actively support child’s contact and with the other die rela- relationship parent, tive and demonstrated willingness of each ability parent child, maintain a close and with the continuing relationship and the of each ability in matters parent cooperate affecting child; child,
“7. reasonable if the preference deems the child to be of reasonable understand- intelligence, ing, age such a experience express preference; “8. Any history abuse as that term family is defined in 16.1-228; and Such other “9. factors as the court deems necessary proper determination.”
None of the factors which a court must consider in Code 20- §§ *11 124.2 and -124.3 when determining that a court requires make a of finding any of harm to a child’s type health or The safety. standard, child,” “best interests of the does not the state to require exercise its to the police health or of a child. power protect safety Rather, this standard a court to make comparative determi- requires nations about what be most beneficial to a child. may Undoubtedly, most children would benefit close and rela- experiencing loving And, with tionship caring such grandparents. cer- relationship However, be in a child’s best tainly interests. I cannot conclude that the absence of such in this case would affect the relationship grand- daughter’s health or safety. demonstrates,
As the record Code 20-124.2 a court to permits § intrude the upon fundamental to raise their parents’ rights child even the circuit court though made factual that the are finding fit, mentally, are physically morally of capable meeting financial, educational, needs, the child’s moral and social and there is no evidence of abuse or of this parental neglect. plain language statute the state to the to permits infringe raise upon parents’ rights mandate, against a court to parents’
their child by authorizing wishes, the child shall associate. those with whom persons 20-124.2, essence, Code in this per-
In applied proceeding, § how a child its views regarding mits government impose child’s even such decisions though should be raised parents, fundamental rights choices parents’ are parental protected 20-124.2, as Amendment. Code from Fourteenth emanating here, deficient because it does not require is constitutionally applied make a deter- that a visitation to awarding such visitation is necessary safety mination that protect health of the child.4
C. concluded that The Court of and the Appeals, plurality’s opinion, because the General 20-124.2(B) Assembly is constitutional that “a intended that a circuit court make a finding purportedly detrimental be harmful or to the welfare denial of visitation would child, before with the interfering constitutionally protected paren- conclusion, In this reaching tal of the child involved.” rights the following language Court of and the Appeals plurality rely upon due 20-124.2(B) that a court “shall give in Code which requires when making to the regard primacy parent-child relationship” visitation determinations. I disagree plurality opinion the Court of Appeals. 20-124.2(B) devoid of contained in Code language plain harm a child a court to make a finding words require over a to a rights parent’s
before granting grandparent “shall due regard that a court statutory language give objection. is not relationship” simply primacy parent-child a find- the constitutional that a court make requirement equivalent state interest before with a interfering parent’s of a compelling Thus, amends fundamental to raise child. plurality opinion to the statute. I can- 20-124(B) additional by adding language Code § unam- that is evident in the clear and not infer a intent not legislative because to do so would per- biguous language mit the branch of judicial government usurp prerogatives unconstitutional best interest of statute I am of the as written would be the child standard in a visitation facially opinion because constitutionally there *12 20-124.2(B) permissible. be factual circumstances when dispute is unconstitutional For between example, natural a court should applied parents application as of a child. opposed apply and, thus, branch of legislative a statute government by rewriting that statute a giving construction that was not manifested plain that the General language chose to use. Assembly
VII. reasons, For these I would hold that unconstitutional as because the statute applied the Common- permits wealth to interfere with the fundamental parents’ to raise their rights child even though statute does not the court make a require that the failure to finding award visitation over the parents’ objec- tions would be detrimental to the health or safety child. I would enter an Accordingly, order in favor the parents, declaring that Code 20-124.2(B) is unconstitutional as in this applied proceeding. KOONTZ,
JUSTICE with whom JUSTICE KEENAN dissent- joins, ing, in result. concurring view,
In my issue in this dispositive case is whether the juve- nile court, and domestic relations district and thereafter the circuit court on had the appeal, statutory consider a authority petition by grandparents seeking court-ordered visitation with their grandchild over the united objections of the child’s The record parents. reflects that the have an intact are marriage, capable meeting financial, educational, moral, child’s needs, and social and there is no abuse, allegation view, parental or abandonment. In neglect, my this factual specific context the scheme pertinent for resolv- statutory child does disputes not provide right to grandpar- visitation, and, ents to seek does not accordingly, provide authority Thus, the courts to consider their I would not reach petition. the con- stitutional issue in this presented appeal. I would note
Initially, that the scheme for visi- statutory resolving tation suits invoked this case force in the cir- applies equal cuit court on and in the appeal juvenile domestic relations dis- trict court from which the arises. See Code appeal 20-124.2 to visitation (expressly applicable suits whether in the circuit court or court); district 16.1-296(1)(on circuit court has all appeal, powers authority granted and domestic juvenile relations dis- court). trict Because the in this case was filed in originally domestic relations district I begin my analysis *13 16.1-241, the general which provides of Code with consideration § that: In this statute part, provides for that court. pertinent jurisdiction have district court shall [Ejach and domestic relations juvenile cases, matters . . . over all original jurisdiction . . . exclusive involving: proceedings visitation, control or disposition support, A. custody, of a child: .; to be abused . . neglected
1. Who is alleged [or] or other custodian or is abandoned his by parent 2. Who is without care guardianship; who ... parental aby is at risk of abused or being neglected parent 2a. Who .;. or custodian . con- subject or 3. Whose custody, support determination', or
troversy requires matters court to adjudicate The authority juvenile visitation, control disposi- involving custody, support, limited to the consideration peti- tion of a child shall not be mother, but shall father or guardian tions filed legal with a legiti- filed at time any by any party include petitions shall be with a interest legitimate mate interest therein. A party to, include, not be limited and shall construed broadly relatives former blood stepparents, grandparents, stepparents, members. and family added.)
(Emphasis authority the dispositional 16.1-278.15 provides § suits in court in visitation relations district and domestic juvenile In under Code 16.1-241. pertinent that court has jurisdiction (A) that in cases in subsection 16.1-278.15 provides part, 16.1-241(A)(3), to Code of a child the visitation pursuant involving the welfare to protect make order any disposition “the court may the circuit court.” Sub- be made the child and family may the custody case involving that in (B) “any further section provides child, award of a or visitation therein, . . interest . including any party legitimate grandparents.” terms,
In legislative 16.1-241 broad express provides domestic district grant for the relations jurisdiction matters, court to consider Code 16.1-278.15 provides for that court to award visitation to dispositional authority any interest, However, with a party legitimate including grandparent. these code not in the or in sections do create any right with a interest” visitation. Such “party rights law, 754, 756, did at not exist common West v. 220 Va. King, *14 386, (1980), S.E.2d can 387 nor be acquired inferentially. Cf. Johnson, 641, 645, 351, Johnson 224 (1983). v. Va. S.E.2d 299 353 Rather, law, in of the common being derogation right interest, other a grandparents, any with to visita- party legitimate tion aof child over the united two fit of must be objections 60, 65, conferred statute. v. Va. 244 expressly Roy, Wackwitz Cf. 861, 418 (1992). S.E.2d 864 To the extent that the with a parties legitimate interest, visitation, a have right such Code granted 20- right § “[cjourt-ordered 124.2 which addresses expressly visita- custody tion 20-124.2(A) Code arrangements.” provides § pertinent part that:
In case in which any custody or visitation of minor chil- issue, dren is at in a whether circuit or district court shall due provide consideration of prompt adjudication, upon facts, all the and visitation custody arrangements, including children, and maintenance for the support con- prior other siderations in matter. arising The court enter an order the suit .... pending 20-124.2(B) that: provides pertinent part §
In con- determining custody, give court shall primary sideration best interests of the child. The shall court assure minor children of with contact frequent continuing both when to share parents, appropriate, encourage parents in the rearing children. As between the responsibilities there parents, shall be no or inference law in presumption favor of either. court shall due give regard to primacy but parent-child relationship may upon showing by clear and that the convincing evidence best interest of the child 36 be or visitation to any
would served award thereby interest. with person “ a legiti- the term ‘Person with Code 20-124.1 provides § includes, is not lim- interest be construed broadly mate shall . such has intervened in party ited to . . grandparents provided (Second or is the court.” properly emphasis the suit otherwise before added.) intervened in such has “provided any party limiting phrase 20- in Code the suit or is otherwise before court” properly 20- 124.1 of both the provisions impacts scope 124.2(B) and of Code 16.1-241. This phrase the provisions which Code limits the circumstances under expressly thus, and, the circum- right to visitation grants for under 16.1-241 provides jurisdiction stances Moreover, because the consider their for visitation. to visitation common law did not recognize grandparent must be statutory this scheme grandchild, strictly applied not construction “enlarged beyond express operation by [its] [its] 181, Kinzer, 175, Va. 142 S.E.2d Railway terms.” C. & O. v. 206 514, (1965); Systems Corpo- 518 see also Bradick v. Grumman Data ration, 156, 160, 545, (1997); Hyman 547 v. 254 Va. S.W.2d Glover, 140, 143, (1986) (General Va. 348 S.E.2d law will mani- intent to common be Assembly’s abrogate “plainly statute). fested” in of a language *15 interest, Here, the as a are legitimate with persons grandparents, between the not intervenors in an or visitation suit existing custody unfitness, abuse, nor assert evidenced by do parents, parental abandonment, prop so as otherwise parties neglect, qualify (2a).* (2), and 16.1-241(A)(1), under Code erly court § before Thus, 20-124.2(B) if construed without giving any Code is only § 20-124.1, to die Code would court effect of limiting language had visitation to the authority grandparents have award statutory case, this where two fit parents under circumstances of specific However, the united in to that visitation. limiting are their objections intended to legislature of 20-124.1 language suggests limit right parties interest, be that issue would otherwise seek visitation when Bottoms, file a [*] It petition cannot be Va. for disputed 413-414, of a child under the common law of this Commonwealth 457 S.E.2d an 102, allegation (1995). parental See unfitness. grandparents Bottoms can v. before court and not when the the cus- properly grandchild fit, of two natural in an are united tody intact who marriage in their to visitation objections by grandparents.
This conclusion is further bolstered language 16.1-241(A)(3) that to the over provides statutory authority suits involving child whose visitation “is a subject controversy determination,” or requires the lan- suggesting consistency with of Code am guage 20-124.1. I aware of no case in we prior have recognized broad unlimited over right case, parental asserted objection this and I grandparents decline would to do so now. I would hold that the
Accordingly, and domestic rela- tions district court had no visitation to the statutory authority grant under their grandparents because does not provide under the circum- reasons, stances in this case. these For I would reverse trial court’s judgment dismiss grandparents’ petition.