The Court of Appeals reaf irmed that a surviving parent’s constitutional rights cannot be overridden without proof that withholding grandparent visitation would cause actual harm to the child.


Introduction


Virginia’s Court of Appeals reaf irmed that a surviving parent’s constitutional rights cannot be overridden without proof that denying grandparent visitation would cause actual harm to the child.


     In Williams v. Panter (Record No. 2021-23-3, Va. Ct. App. Feb. 4, 2025), Virginia’s Court of Appeals reaffirmed the constitutional boundaries surrounding non-parent visitation, holding that a surviving parent’s right to direct the care and upbringing of their children cannot be overridden without a showing of actual harm to the child. This decision follows the longstanding precedent of Williams v. Williams, 256 Va. 19 (1998), which requires proof that a child will suffer harm without visitation before the state may interfere with parental autonomy. The opinion underscores that, despite legislative efforts to expand grandparent visitation under Virginia Code § 20-124.2(B2), a deceased parent’s wishes cannot constitutionally diminish a surviving parent’s rights.


Background


The grandparents’ petition under Virginia’s amended visitation statute failed because the law attempted to honor a deceased parent’s wishes without requiring proof that the children would be harmed by denying visitation.


     The case arose after the death of a father who left behind his wife and three children. The children’s paternal grandparents, citing a strong prior relationship and their son’s desire for continued contact, petitioned for visitation under Virginia Code § 20-124.2(B2), a 2023 amendment allowing courts to consider a deceased parent’s consent when determining a grandparent’s visitation request.


     The mother, as the sole surviving and fit parent, objected. She argued that the statute violated her Fourteenth Amendment liberty interest in raising her children. The Washington County Circuit Court agreed, finding the new provision unconstitutional as applied because it omitted the actual harm requirement recognized in Williams v. Williams and reaffirmed by the U.S. Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000).

     On appeal, the Court of Appeals upheld the trial court’s ruling, confirming that while the General Assembly may authorize courts to consider a deceased parent’s wishes, it cannot do so at the expense of a surviving parent’s fundamental rights.


Legal Analysis


      The Court held the statute unconstitutional as applied because removing the actual-harm requirement impermissibly placed grandparents and fit parents on equal footing under a mere best-interests test.


     Judge Frederick Rowlett’s decision (later affirmed on appeal) emphasized that Code § 20-124.2(B2) lacked the constitutional safeguards present in subsection (B), which expressly directs courts to give “due regard to the primacy of the parent-child relationship.” Without this language, the statute permitted state interference based merely on a best interests analysis rather than a finding of harm, effectively placing grandparents and parents on equal footing.


     The Court held that such an approach “does not withstand constitutional scrutiny.” Once one parent dies, the surviving parent alone retains the shared fundamental liberty interest in the care, custody, and control of the children. The deceased parent’s wishes - however sincere - do not survive death and cannot create a compelling state interest that overrides the rights of the living parent.


The Court reaffirmed the two-part Williams v. Williams test:
- The petitioner must first prove actual harm to the child if visitation is denied.
- Only after such a finding may the court evaluate whether visitation is in the child’s best interest.
Absent proof of harm, the Constitution forbids substituting judicial or legislative judgment for the decisions of a fit parent.


Implications


The ruling preserves the constitutional presumption that fit parents act in their children’s best interests and confirms that grandparent visitation may be ordered only when denying it would harm the child.


      The Williams v. Panter decision reinforces a consistent constitutional principle: the state may interfere with parental decision-making only to prevent harm or potential harm to a child. While the General Assembly’s 2023 amendment sought to honor the wishes of deceased or incapacitated parents, courts remain bound by due-process protections.


     For grandparents, the ruling means that petitions for visitation face a steep burden when the surviving parent objects. They must be prepared to present expert testimony or other clear evidence that denying visitation would harm the child’s physical or emotional well-being. For parents, the case serves as reassurance that the constitutional presumption favoring their judgment remains firmly intact.

     By reaffirming Williams v. Williams and clarifying the limits of § 20-124.2(B2), the Court of Appeals has drawn a clear constitutional line: the best-interest standard alone is insufficient when it intrudes upon the rights of a fit, surviving parent.


Smith Strong Can Help


Smith Strong represents both parents and grandparents in navigating Virginia’s stringent actual-harm requirement and evaluating whether a visitation claim can meet constitutional standards.


     Grandparent visitation and parental-rights cases in Virginia often involve complex intersections between state statutes and constitutional law. At Smith Strong, PLC, our family-law attorneys are experienced in defending parental rights and advising grandparents on the evidentiary requirements for seeking visitation. If you are navigating a custody or visitation dispute - or facing questions under Virginia Code § 20-124.2 - contact our Richmond office at (804) 325-1245 or in Williamsburg at (757) 941-4298 to schedule a confidential consultation.