Grandparent Visitation Denied: Deceased Parent’s Wishes Insufficient Under Virginia Law

Introduction

     In Williams v. Panter, the Court of Appeals of Virginia reaffirmed that a surviving parent’s constitutional right to raise their child remains paramount, even in the face of newly enacted legislation supporting grandparent visitation. While Virginia Code § 20-124.2(B2) permits courts to consider a deceased parent’s consent to visitation with grandparents, the Court held that, in this case, the statute could not override the surviving parent’s rights without evidence of actual harm to the child.

Case Background

     Following the death of their son, paternal grandparents petitioned for visitation with the deceased father’s three minor children. The Juvenile and Domestic Relations Court dismissed their petitions, and the grandparents appealed to the circuit court. During the pendency of the appeal, a new statute, Virginia Code § 20-124.2(B2), went into effect, allowing courts to consider the deceased parent’s wishes regarding visitation.

     The grandparents sought to introduce evidence of the father’s desire that they continue a relationship with the children. The mother, however, opposed the visitation and filed a constitutional challenge to the statute. The circuit court agreed with the mother, ruling that the new statute was unconstitutional as applied to this case. Relying on Williams v. Williams, 256 Va. 19 (1998), the court required the grandparents to show that denying visitation would cause actual harm to the children. As no such evidence was presented, the court denied the petitions.

Legal Holding

     The Court of Appeals affirmed the trial court’s decision, upholding the constitutionality challenge to § 20-124.2(B2) as applied to the specific facts. It held that the statute, though facially neutral, could not be constitutionally applied in a way that allowed grandparents to override a surviving parent’s rights without a showing of actual harm.

Constitutional Limits on Grandparent Visitation

     The Court made clear that while § 20-124.2(B2) permits grandparents in Virginia to introduce evidence of the deceased parent’s wishes, doing so does not eliminate the constitutional requirement to protect the surviving parent’s liberty interest under the Fourteenth Amendment. In particular, the Court found:

     - A deceased parent’s rights do not survive death.
     - Relying on a mere “preponderance of the evidence” standard to determine best interests
        is insufficient when it infringes on a living parent’s rights.
     -The statute, as applied, did not meet strict scrutiny because it failed to justify state
        interference without showing actual harm to the child.

     The Court also declined to find any error in the trial court’s refusal to appoint a guardian ad litem, noting that custody and parental fitness were not at issue, as this was a grandparent’s visitation case. Further, the children were of sufficient age (13 or older) to be interviewed directly by the court if necessary.

Smith Strong Can Help

     Grandparent visitation cases in Virginia require careful navigation of both statutory law and constitutional protections. If you are a grandparent seeking visitation - or a parent responding to such a petition - our family law attorneys at Smith Strong, PLC can help guide you through your rights and legal options. To schedule a confidential consultation, please call (804) 325-1245 (Richmond) or (757) 941-4298 (Williamsburg).