The Court of Appeals Addresses the Constitutionality of Virginia Code § 20-124.2(B2)
Williams v. Panter, Record No. 2021-23-3 (Va. Ct. App. Feb. 4, 2025)
the Court of Appeals addressed the constitutionality of Virginia Code § 20-124.2(B2), a recently enacted statute that allows grandparents related to a deceased parent to introduce evidence of that parent’s consent to visitation.
In that case, a father committed suicide, leaving behind his wife and three children. Before their father’s death, the children had an extensive relationship with their paternal grandparents. After their father’s death, the children’s mother initially allowed visitation with the paternal grandparents but then stopped contact due to concerns over the appropriateness of text messages and the lack of respect for her parental role.
The grandparents filed for visitation rights, which the Juvenile and Domestic Relations Court rejected, so they appealed to the circuit court. The circuit court ruled that the “actual harm” standard—proof that the children would be harmed without visitation—applied to the grandparents’ petition and they had not shown any harm. While their appeal was pending in the circuit court, however, Code § 20-124.2(B2) was enacted, which permits a court to determine whether grandparent visitation “is in the best interest of the minor grandchild” if the grandparent can prove a deceased or incapacitated parent’s consent to the visitation. The mother challenged the statute because it “violated her fundamental constitutional right to direct the care and custody of her children.” The circuit court agreed that the statute was unconstitutional as applied to the mother’s case.
The Court of Appeals affirmed that ruling. Parents have a fundamental right to make decisions about their children’s care and upbringing. The statute failed to protect the mother’s fundamental constitutional liberty interest in raising her children by not giving appropriate weight to her parental decisions. The Court rejected the idea that a deceased parent’s interest could survive death or be transferred to grandparents. Notably, the Court did not declare the statute per se unconstitutional, preserving the possibility that the statute might be constitutional in other situations, perhaps those involving incapacitated rather than deceased parents.