COURT OF APPEALS OF VIRGINIA

Present: Judges Felton, Kels ey and Senior Judge Willis Argued at Rich mond, 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 COUR T OF ALBEMARLE COUNTY Paul M. Peatro ss, Jr., Judge Steven L. Raynor (Christo pher A. Jones; Martin & Raynor, P.C., on briefs), for appellant. Christopher J. Smith (Jon es & Green, LLP, on brief), for appellee.

Andrea Griffin appeal s a decision of the trial court granting her estranged husb and weekly visitation wi th her son —— a child fathered by anot her man while the Griffins were se parated. On appeal, she argues that (i) the trial co urt incorrectly applied the legal standard governing visi tation with a non-parent, and (ii) under a correct application of the st andard, the evidence does not justify aw arding visitation over her parental objection. Agreeing with both contentions, we reverse the trial court's visitation order.

I. Andrea Griffin (wife) and Elbe rt Griffin (husba nd) married in 1996 and separated in September 1997. During the separa tion, wife became sexually involv ed with Michael Groh . Wife continued,however, to have sexual relations with husban d during this period of separation. In October 1997, wife learned that she was pregnant and informed hu sband that he was the father. In December 1997, husband was injured in an au tomobile accident and spent six to seven weeks in the hospital. Upon husband's disc harge from the hospital, wife returned to the marita l home to care for him. Husband suffer ed extensive inju ries, leaving him with significant physical and mental impairments. During this period of recuperation, however, the couple did no t 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, husb and treated the ch ild as his own and participat ed in his early development. In September 1999, wife and her son moved in with her mother. Wife agreed to allow husband weekly visitati on with the child. In December 1999, however, a court-ordere d paternity test established that Michael Groh was the child's fa ther. Upon learning the results of the paternity test, wi fe denied husband any fu rther weekly visitation with her son. In August 2000, over wife's objection, the juvenile and domestic relations di strict court awarde d husband temporary visitation rights with the ch ild despite the results of the paternity test. In June 2001, the JD R court expa nded the visitation schedule an d made its order fina l. The fi nal order

- 2 -stated that the JDR co urt applied the best-interests test codified in Code § 20-124.3. Wife appealed to the circuit cour t on the ground that, as a non- parent, husband could not obtain visitation rights over her son on a mere showing of be st interests. In February 2002, the ci rcuit court held a hearing co ncerning the visitation issue. Th e child's biolog ical father, Michael Groh, appeared and testified that he paid child support, but did not intend to foster a relati onship with the child. Wife called Dr. Patr icia Martin, a clinic al psychologist, as an expert witness. Dr. Martin testified th at the best interests of the child would be served by ending hubs and's visita tion. Dr. Martin concluded th at, given the an imosity betwee n them, wife and husband were not "able to co-parent ef fectively." Dr. Martin noted wife's legitimate concerns over her so n's "safety" when he was with husband as well as husband's "history of dr inking." In addition, Dr. Ma rtin testified, husban d's psychological tests revealed "dysfunction al personality characteristic s." Husband engaged in chronic disp aragement of wi fe 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 hostilit y between husband and wife, Dr. Martin observed. Sh e explained that this level of antagonism, ev en between parents, was cause fo r alarm: One of the most sign ificant find ings in family research concer ns the seri ous hazard posed to the psycho logical health and

- 3 -develop[ment] of children by continued exposure to high co nflict between the parents, whether in the contexts of an intact marriage or as part of ongoing po st-divorce antagonism. It only compounded things, Dr . Martin conclu ded, for such hostility to exist betw een a mother and a no n-parent seeking to play the role of a de facto father. Husband called Wendy Carroll, a family counselor, as an expert witness. Carr oll testified th at she thought it would be "very hard" on the ch ild if visitation wi th husband did not continue. The child referred to hu sband as "Dad dy," Carroll pointed out, and had obvious affectio n for him. Carroll also found it significant th at "Mr. Griffi n vehemently and consistently state[s] that he vi ews himself as [the child's] father." Although she did not apply an y "formal criter ia," Carroll concluded that under "attachment theo ry" the child had developed an emotional tie to husband. Seve ring that tie, Carroll be lieved, would likely cause the child to consider hims elf "bad" and "unlovable" and to grieve over th e loss. As a result, Carroll opined, it "could be " emotionally hurtful for the child if visitation ended. All in all, Carrol l concluded, it would be in the child's best intere sts 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 th eory" and that, in any event, the topi c was an improper subj ect for expert opinion in the first plac e. Our reasonin g assumes, withou t deciding, that Carroll's testimony was admissible. - 4 -The trial cour t ruled for husb and, stating that the "best interests" of th e child would be served by ordering visitation over the mother's ob jection and th at not doing so would be "detrimental" to the child. The court advised husband to read Wednesdays And Ev ery Other Weekend , a book "which talks about non-custodial parents and wh at's best for the ch ild." The court's final order requ ired wife to make th e child avai lable for visitation by hu sband on Wednesday afte rnoons and every other weekend (from Frid ay night until Su nday evening). The order also provided that hu sband "shall not consume alcoholic beve rages while the child is in his care." Wife filed this appe al, seeking a re versal of th e visitation order. Before oral argument, wife filed a motion to remand the case to the tria l court alleging that on March 30 , 2003, husband had been in anothe r automobile accident —— this time with her son

as a passenger. Police officers arrest ed husband for driving under the influenc e and endangerin g the child's li fe. By order entered April 15, 2003, we denied wife's request fo r a plenary remand of the ca se, but nonetheles s granted leave fo r her to seek from the trial court either a reconsiderat ion or stay of the visitation order base d upon changed circum stances. In the meantime, we ordered this appeal to go forward.

- 5 -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

- 6 -[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 disp utes between tw o fit parents involve one parent 's fundamental right pitted against the other parent's fundamental ri ght. The disc retion afforded trial courts under the best-int erests test, Code § 20-1 24.3, reflects a finely balanced judicial resp onse to this parental deadlock. A very different kind of legal contest, however, exists in a dispute between a fit pare nt and a non-pare nt. In this la tter situation, the best-interes ts 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

- 7 -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 th at visitation be gran ted to a non-parent and the other pare nt's objection to it. Th e only contest here is between a parent and a non-parent. We are equally unpers uaded by husband's su ggestion that wife has no constitutionally protected righ ts as a parent because she and the child's fa ther cannot be consider ed an "int act family." 2 Troxel involved an unma rried, single moth er. Nothing in Troxel implies that the legal superiority of a fit pa rent'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.

- 8 -Because it exists as a means of expressing the compelling state interests ne cessary to overcome the constitutional parental rights recognized in Troxel , the actual-h arm standard must be understood as conceptually different from, and si gnificantly weightier than, th e best-interes ts test. As we made clear in Williams , the actual-har m test cannot be sa tisfied 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, - 9 -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 show ing 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 th e two legal standards togeth er —— not only in the decisionmaki ng sequence, but in the substance of the decision as well. In ef fect, the trial

court's reason ing treated the ac tual-harm re quirement as simply a restatement of the best -interests test. To justify a fi nding of actual harm unde r the clear and co nvincing burden of proof, the evidence must es tablish more than the obvious obse rvation that the child would benefi t from the continuing em otional attach ment with the non-parent. No doubt losing such a relationship would cause some measure of sadnes s and a sense of loss which, in theory, "could be" emotionally ha rmful. But that is not what we meant by - 10 -" actual harm to the child's health or welfare." Williams , 24 Va. App. at 784- 85, 485 S.E.2d at 654 (emphasis ad ded). If it

were, any non-pare nt who has developed an emotionall y enduring relationship with an other's child wo uld satisfy th e actual-harm requirement. Th e constitution al rights of pare nts cannot be so easily undermined. The evidence in this case, at its best , goes no fu rther than supporting the inferenc e that the child would grieve the loss of the emotional atta chment he has fo r his mother's es tranged husband and "could be" emotiona lly hurt if vi sitation with him ended. While that might sati sfy a trial cour t's "subjectiv e 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 th e actual-harm te st. Wife's decision to discourage her young so n's relationship with husband, therefore, must be judici ally respected. 3

III. In sum, we hold that the trial court applied an incorrect legal standard to the non-parent visitati on award and that, under the correct standa rd, the evidence does not suppor t a finding by clear and convin cing evidence of actual harm to th e 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"). - 11 -or welfare. Fo r this reason, we revers e and vacate the trial court's visita tion order. 4 Reversed and vacated.

4 We also deny hu sband's motion for attorney's fees.

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