COURT OF APPEALS OF VIRGINIA 

Present: Judges Felton, Kelsey and Senior Judge Willis 

Argued at Richmond, Virginia 

ANDREA K. GRIFFIN 

 OPINION BY 

v. Record No. 1214-02-2 JUDGE D. ARTHUR KELSEY 

 JUNE 17, 2003 

ELBERT EDDIE GRIFFIN 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

Steven L. Raynor (Christopher A. Jones; Martin & 

Raynor, P.C., on briefs), for appellant. 

Christopher J. Smith (Jones & Green, LLP, on 

brief), for appellee. 

 Andrea Griffin appeals a decision of the trial court granting 

her estranged husband weekly visitation with her son —— a child 

fathered by another man while the Griffins were separated. On 

appeal, she argues that (i) the trial court incorrectly applied 

the legal standard governing visitation with a non-parent, and 

(ii) under a correct application of the standard, the evidence 

does not justify awarding visitation over her parental objection. 

Agreeing with both contentions, we reverse the trial court's 

visitation order. 

I. 

 Andrea Griffin (wife) and Elbert Griffin (husband) married in 

1996 and separated in September 1997. During the separation, wife 

became sexually involved with Michael Groh. Wife continued, 
however, to have sexual relations with husband during this period 

of separation. In October 1997, wife learned that she was 

pregnant and informed husband that he was the father. In December 

1997, husband was injured in an automobile accident and spent six 

to seven weeks in the hospital. Upon husband's discharge from the 

hospital, wife returned to the marital home to care for him. 

Husband suffered extensive injuries, leaving him with significant 

physical and mental impairments. During this period of 

recuperation, however, the couple did not reconcile or express any 

joint interest in saving the marriage. 

 Wife gave birth to a boy on June 25, 1998. Husband believed 

at that time, based on what wife had told him, that he was the 

child's father. As a result, husband treated the child as his own 

and participated in his early development. In September 1999, 

wife and her son moved in with her mother. Wife agreed to allow 

husband weekly visitation with the child. In December 1999, 

however, a court-ordered paternity test established that Michael 

Groh was the child's father. Upon learning the results of the 

paternity test, wife denied husband any further weekly visitation 

with her son. 

 In August 2000, over wife's objection, the juvenile and 

domestic relations district court awarded husband temporary 

visitation rights with the child despite the results of the 

paternity test. In June 2001, the JDR court expanded the 

visitation schedule and made its order final. The final order 

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stated that the JDR court applied the best-interests test codified 

in Code § 20-124.3. Wife appealed to the circuit court on the 

ground that, as a non-parent, husband could not obtain visitation 

rights over her son on a mere showing of best interests. In 

February 2002, the circuit court held a hearing concerning the 

visitation issue. The child's biological father, Michael Groh, 

appeared and testified that he paid child support, but did not 

intend to foster a relationship with the child. 

 Wife called Dr. Patricia Martin, a clinical psychologist, as 

an expert witness. Dr. Martin testified that the best interests 

of the child would be served by ending hubsand's visitation. 

Dr. Martin concluded that, given the animosity between them, wife 

and husband were not "able to co-parent effectively." Dr. Martin 

noted wife's legitimate concerns over her son's "safety" when he 

was with husband as well as husband's "history of drinking." In 

addition, Dr. Martin testified, husband's psychological tests 

revealed "dysfunctional personality characteristics." Husband 

engaged in chronic disparagement of wife in her son's presence and 

displayed an attitude of "revenge" stemming from a sense of 

betrayal by wife. 

 The child was "obviously aware" of the hostility between 

husband and wife, Dr. Martin observed. She explained that this 

level of antagonism, even between parents, was cause for alarm: 

One of the most significant findings in 

family research concerns the serious hazard 

posed to the psychological health and 

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develop[ment] of children by continued 

exposure to high conflict between the 

parents, whether in the contexts of an intact 

marriage or as part of ongoing post-divorce 

antagonism. 

It only compounded things, Dr. Martin concluded, for such 

hostility to exist between a mother and a non-parent seeking to 

play the role of a de facto father. 

 Husband called Wendy Carroll, a family counselor, as an 

expert witness. Carroll testified that she thought it would be 

"very hard" on the child if visitation with husband did not 

continue. The child referred to husband as "Daddy," Carroll 

pointed out, and had obvious affection for him. Carroll also 

found it significant that "Mr. Griffin vehemently and consistently 

state[s] that he views himself as [the child's] father." 

 Although she did not apply any "formal criteria," Carroll 

concluded that under "attachment theory" the child had developed 

an emotional tie to husband. Severing that tie, Carroll believed, 

would likely cause the child to consider himself "bad" and 

"unlovable" and to grieve over the loss. As a result, Carroll 

opined, it "could be" emotionally hurtful for the child if 

visitation ended. All in all, Carroll concluded, it would be in 

the child's best interests for husband to have visitation rights.1

 1

 Wife also contends that the trial court erred by admitting 

the testimony of Wendy Carroll because she was unqualified to 

address the psychological aspects of "attachment theory" and that, 

in any event, the topic was an improper subject for expert opinion 

in the first place. Our reasoning assumes, without deciding, that 

Carroll's testimony was admissible. 

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 The trial court ruled for husband, stating that the "best 

interests" of the child would be served by ordering visitation 

over the mother's objection and that not doing so would be 

"detrimental" to the child. The court advised husband to read 

Wednesdays And Every Other Weekend, a book "which talks about 

non-custodial parents and what's best for the child." The court's 

final order required wife to make the child available for 

visitation by husband on Wednesday afternoons and every other 

weekend (from Friday night until Sunday evening). The order also 

provided that husband "shall not consume alcoholic beverages while 

the child is in his care." 

 Wife filed this appeal, seeking a reversal of the visitation 

order. Before oral argument, wife filed a motion to remand the 

case to the trial court alleging that on March 30, 2003, husband 

had been in another automobile accident —— this time with her son 

as a passenger. Police officers arrested husband for driving 

under the influence and endangering the child's life. By order 

entered April 15, 2003, we denied wife's request for a plenary 

remand of the case, but nonetheless granted leave for her to seek 

from the trial court either a reconsideration or stay of the 

visitation order based upon changed circumstances. In the 

meantime, we ordered this appeal to go forward. 

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II. 

 As the United States Supreme Court has observed, the "liberty 

interest at issue in this case —— the interest of parents in the 

care, custody, and control of their children —— is perhaps the 

oldest of the fundamental liberty interests recognized by this 

Court." Troxel v. Granville, 530 U.S. 57, 65 (2000). The Due 

Process Clause protects the "fundamental right of parents to 

make decisions concerning the care, custody, and control of 

their children." Id. at 66. As a result, the statutory 

best-interests test "unconstitutionally infringes on that 

fundamental parental right" if it authorizes a court to 

"disregard and overturn any decision by a fit custodial parent 

concerning visitation whenever a third party affected by the 

decision files a visitation petition, based solely on the 

judge's determination of the child's best interests." Id. at 

67. 

Troxel expressly declined to rule that all "nonparental 

visitation statutes violate the Due Process Clause as a per se

matter." Id. at 73. Citing Williams v. Williams, 256 Va. 19, 

501 S.E.2d 417 (1998), as an example, Troxel pointed out that 

some state statutes have been interpreted to require a showing 

of actual harm as a precondition to awarding visitation to a 

non-parent over the objection of fit parents. Id. at 74. In 

Williams, the Virginia Supreme Court agreed that 

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[f]or the constitutional requirement to be 

satisfied, before visitation can be ordered 

over the objection of the child's parents, a 

court must find an actual harm to the 

child's health or welfare without such 

visitation. 

Williams, 256 Va. at 22, 501 S.E.2d at 418 (quoting Williams v. 

Williams, 24 Va. App. 778, 784-85, 485 S.E.2d 651, 654 (1997)) 

(emphasis added). Thus, when fit parents object to non-parental 

visitation, a trial court should apply "the 'best interests' 

standard in determining visitation only after it finds harm if 

visitation is not ordered." Id. (emphasis added). 

 Custody and visitation disputes between two fit parents 

involve one parent's fundamental right pitted against the other 

parent's fundamental right. The discretion afforded trial courts 

under the best-interests test, Code § 20-124.3, reflects a finely 

balanced judicial response to this parental deadlock. A very 

different kind of legal contest, however, exists in a dispute 

between a fit parent and a non-parent. In this latter situation, 

the best-interests test should be applied only if the trial court 

first finds "an actual harm to the child's health or welfare 

without such visitation." Id. (quoting Williams, 24 Va. App. at 

784-85, 485 S.E.2d at 654). 

 We disagree with husband that our reasoning conflicts with 

Dotson v. Hylton, 29 Va. App. 635, 639, 513 S.E.2d 901, 903 

(1999), which held: "When only one parent objects to a 

[non-parent's] visitation and the other parent requests it, the 

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trial court is not required to follow the standard enumerated in 

Williams." Unlike Dotson, the "other parent" in our case 

(Michael Groh) did not request that visitation be awarded to 

husband. Thus, the trial court was not asked to referee between 

one parent's request that visitation be granted to a non-parent 

and the other parent's objection to it. The only contest here is 

between a parent and a non-parent. 

 We are equally unpersuaded by husband's suggestion that wife 

has no constitutionally protected rights as a parent because she 

and the child's father cannot be considered an "intact family."2 

Troxel involved an unmarried, single mother. Nothing in Troxel

implies that the legal superiority of a fit parent's rights over 

those of a non-parent turns on whether the parent is married, 

separated, divorced, or widowed. A single mother has no less 

constitutional right to parent her son than a married mother. 

"We, therefore, reject any argument that single parents are 

entitled to less constitutional liberty in decisions concerning 

the care, custody, and control of their children." Wickham v. 

Byrne, 769 N.E.2d 1, 6 (Ill. 2002). 

 

2

 In Dotson, 29 Va. App. at 638, 513 S.E.2d at 903, we 

distinguished the situation in that case (a divorced couple with 

one parent requesting visitation, the other objecting to it) 

from Williams, which involved a "unified family" with both 

parents objecting to non-parent visitation. Dotson did not 

hold, as husband appears to contend, that the actual-harm 

standard applies only to married parents in an intact family. 

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 Because it exists as a means of expressing the compelling 

state interests necessary to overcome the constitutional parental 

rights recognized in Troxel, the actual-harm standard must be 

understood as conceptually different from, and significantly 

weightier than, the best-interests test. As we made clear in 

Williams, the actual-harm test cannot be satisfied by a showing 

that "it would be 'better,' 'desirable,' or 'beneficial' for a 

child" to have visitation with a non-parent. Williams, 24 

Va. App. at 784, 501 S.E.2d at 654. "It is irrelevant, to this 

constitutional analysis, that it might, in many instances be 

'better' or 'desirable' for a child" to have visitation with a 

non-parent. Brooks v. Parkerson, 454 S.E.2d 769, 773-74 (Ga. 

1995). "For the state to delegate to the parents the authority 

to raise the[ir] child as the parents see fit, except when the 

state thinks another choice would be better, is to give the 

parents no authority at all." Williams, 24 Va. App. at 784, 501 

S.E.2d at 654 (citation omitted). 

 Absent a showing of actual harm to the child, the 

constitutional liberty interests of fit parents "take precedence 

over the 'best interests' of the child." Id. As a result, "a 

court may not impose its subjective notions of 'best interests 

of the child'" in derogation of parental rights protected by the 

Constitution. Id. A "vague generalization about the positive 

influence" of non-parent visitation cannot satisfy the 

actual-harm requirement. In re Herbst, 971 P.2d 395, 396, 

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398-99 (Okla. 1998). To be sure, in this context, forced 

visitation "cannot be ordered absent compelling circumstances 

which suggest something near unfitness of custodial parents." 

Stacy v. Ross, 798 So. 2d 1275, 1280 (Miss. 2001). 

 In addition, Code § 20-124.2(B) requires a showing of "clear 

and convincing evidence" before visitation may be awarded to a 

non-parent. This erects a "more stringent standard" than a mere 

"preponderance of the evidence." Congdon v. Congdon, 40 

Va. App. 255, 263, 578 S.E.2d 833, 837 (2003). Clear and 

convincing evidence involves "that measure or degree of proof 

which will produce in the mind of the trier of facts a firm 

belief or conviction as to the allegations sought to be 

established." Id. (quoting Lanning v. Va. Dept. of Transp., 37 

Va. App. 701, 707, 561 S.E.2d 33, 36 (2002) (citation omitted)). 

 In this case, the trial court collapsed the two legal 

standards together —— not only in the decisionmaking sequence, but 

in the substance of the decision as well. In effect, the trial 

court's reasoning treated the actual-harm requirement as simply a 

restatement of the best-interests test. 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. No doubt losing such a relationship would cause 

some measure of sadness and a sense of loss which, in theory, 

"could be" emotionally harmful. But that is not what we meant by 

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"actual harm to the child's health or welfare." Williams, 24 

Va. App. at 784-85, 485 S.E.2d at 654 (emphasis added). If it 

were, any non-parent who has developed an emotionally enduring 

relationship with another's child would satisfy the actual-harm 

requirement. The constitutional rights of parents cannot be so 

easily undermined. 

 The evidence in this case, at its best, goes no further than 

supporting the inference that the child would grieve the loss of 

the emotional attachment he has for his mother's estranged husband 

and "could be" emotionally hurt if visitation with him ended. 

While that might satisfy a trial court's "subjective notions of 

'best interest of the child,'" Williams, 24 Va. App. at 785, 501 

S.E.2d at 654, it falls far short of satisfying by clear and 

convincing evidence the actual-harm test. Wife's decision to 

discourage her young son's relationship with husband, therefore, 

must be judicially respected.3 

III. 

 In sum, we hold that the trial court applied an incorrect 

legal standard to the non-parent visitation award and that, under 

the correct standard, the evidence does not support a finding by 

clear and convincing evidence of actual harm to the child's health 

 3

 Given our holding, we need not address whether husband 

qualifies as a "[p]erson with a legitimate interest" under Code 

§ 20-124.1. Cf. Kogon v. Ulerick, 12 Va. App. 595, 405 S.E.2d 

441 (1991) (defining "stepparent" for purposes of being deemed a 

"party with a legitimate interest"). 

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or welfare. For this reason, we reverse and vacate the trial 

court's visitation order.4

 Reversed and vacated.

 

4

 We also deny husband's motion for attorney's fees. 

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