Present: All the Justices 

THOMAS O. WILLIAMS, III, 

ET AL. 

 OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 971616 June 5, 1998 

THOMAS O. WILLIAMS, IV, ET AL. 

FROM THE COURT OF APPEALS OF VIRGINIA 

 This is a dispute between the parents of a child in an 

intact family unit and the child's paternal grandparents over 

the grandparents' right of visitation with the child. 

 Appellees Thomas O. Williams, IV, and Sarah Hasty Williams, 

husband and wife who reside together, are the natural parents of 

a daughter born on March 9, 1991. Appellants Thomas O. 

Williams, III, and Frances S. Williams are the child's paternal 

grandparents, who reside near the parents in Blacksburg. 

 The child's family is intact. There is no evidence of 

parental abuse or neglect. The parents are respected members of 

the community in which they live. They are mentally, 

physically, and morally fit, and are capable of meeting their 

daughter's financial, educational, moral, and social needs. 

 The parents and grandparents maintained regular contact 

until February 1994 when the parents announced to the 

grandparents, after consulting with a North Carolina 

"counselor," that they were "detaching" or withdrawing from the 

relationship which previously existed with the grandparents. 
 Eventually, the grandparents filed a petition seeking 

visitation with their granddaughter. The Montgomery County 

Juvenile and Domestic Relations District Court and, on appeal, 

the Circuit Court of Montgomery County ordered visitation. 

 The circuit court decided that the child would "benefit 

from contact with her grandparents"; that such visitation would 

not interfere with the child's health or emotional development; 

that such visitation "is a minimal intrusion into the family 

unit"; that the grandparents "obviously love" the child and 

"have the ability to adequately care for her"; and that the 

child's best interests would be served by having visitation with 

her grandparents. 

 On appeal to the Court of Appeals, the parents asserted 

that Code § 20-124.2(B), as it pertains to nonparent visitation, 

interferes with their right to autonomy in child rearing and, 

hence, violates the Fourteenth Amendment to the United States 

Constitution. The statute permits grandparents, and others, to 

seek visitation. 

 As pertinent here, the statute provides: "The court shall 

give due regard to the primacy of the parent-child relationship 

but may upon a showing by clear and convincing evidence that the 

best interest of the child would be served thereby award custody 

or visitation to any other person with a legitimate interest." 

Code § 20-124.1 provides that the term "person with a legitimate 

2
interest" is to be "broadly construed and includes, but is not 

limited to grandparents, stepparents, former stepparents, blood 

relatives and family members." 

 The Court of Appeals held there is no constitutional 

problem in the applicable statutes. In so ruling, the appellate 

court concluded that the right of parents in raising their child 

is a fundamental right protected by the Fourteenth Amendment. 

Williams v. Williams, 24 Va. App. 778, 783, 485 S.E.2d 651, 654 

(1997). The Court of Appeals further decided that state 

interference with a fundamental right must be justified by a 

compelling state interest, and that to constitute a compelling 

interest, "state interference with a parent's right to raise his 

or her child must be for the purpose of protecting the child's 

health or welfare." Id.

 The Court of Appeals then interpreted Code § 20-124.2(B) to 

permit the state to interfere with the right of parents to raise 

their child by allowing a court to order nonparent visitation 

upon a showing by clear and convincing evidence that the best 

interests of the child would be served by such visitation. Id.

at 784, 485 S.E.2d at 654. However, the Court of Appeals said 

that the language in the foregoing statute that a court "shall 

give due regard to the primacy of the parent-child 

relationship," evinces the General Assembly's intent to require 

the court to find that a denial of nonparent visitation would be 

3
detrimental to the child's welfare before the court may 

interfere with the constitutionally protected parental rights. 

Id.

 In other words, the Court of Appeals said, "For 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." Id. at 784-85, 485 S.E.2d at 654. A 

court reaches consideration of the "best interests" standard in 

determining visitation only after it finds harm if visitation is 

not ordered. Id. at 785, 485 S.E.2d at 654. 

 The Court of Appeals held that the circuit court failed to 

make the required finding of harm if visitation were denied, 

reversed the circuit court, and remanded the case for 

reconsideration of visitation in accord with the standard it set 

forth. Id.

 We agree with the Court of Appeals' discussion holding 

there is no constitutional infirmity in the applicable statutes 

and with that court's interpretation, as we have summarized it, 

placed upon the statutes. We do not agree, however, that the 

case should be remanded to the circuit court; a remand is 

unnecessary. There is no allegation or proof that denial of 

grandparent visitation would be detrimental to this child's 

4
welfare, and no further consideration of that issue at this 

stage of the proceeding is warranted. 

 Consequently, we will modify the Court of Appeals' judgment 

to eliminate the requirement of a remand and will affirm the 

judgment as modified. In so doing, we will deny the 

grandparents' petition for visitation and will dismiss the 

proceeding. 

Modified, affirmed, and dismissed. 

JUSTICE HASSELL, with whom JUSTICE KINSER joins, dissenting in 

part and concurring in result. 

I. 

 I dissent, in part, because I believe that Code § 20-

124.2(B), as applied in this proceeding, violates the Fourteenth 

Amendment of the United States Constitution. I note that only 

three members of this Court agree with the judgment of the Court 

of Appeals as modified. 

II. 

 Code § 20-124.2(A) states in part: 

 "In any case in which custody or visitation of 

minor children is at issue, whether in a circuit or 

district court, the court shall provide prompt 

adjudication, upon due consideration of all the facts, 

of custody and visitation arrangements, including 

support and maintenance for the children, prior to 

other considerations arising in the matter. . . . The 

procedures for determining custody and visitation 

arrangements shall insofar as practical, and 

5
consistent with the ends of justice, preserve the 

dignity and resources of family members. . . ." 

Code § 20-124.2(B), which is the subject of this appeal, states: 

 "In determining custody, the court shall give 

primary consideration to the best interests of the 

child. The court shall assure minor children of 

frequent and continuing contact with both parents, 

when appropriate, and encourage parents to share in 

the responsibilities of rearing their children. As 

between the parents, there shall be no presumption or 

inference of law in favor of either. The court shall 

give due regard to the primacy of the parent-child 

relationship but may upon a showing by clear and 

convincing evidence that the best interest of the 

child would be served thereby award custody or 

visitation to any other person with a legitimate 

interest. The court may award joint custody or sole 

custody." 

III. 

A. 

 The grandparents initiated this proceeding by filing a 

petition, pursuant to Code § 16.1-241(A)(3), in the Montgomery 

County Juvenile and Domestic Relations District Court. The 

grandparents requested that the court enter an order permitting 

them to obtain visitation with their granddaughter. The parents 

opposed the visitation petition. 

 The juvenile and domestic relations district court 

conducted an ore tenus hearing and entered an order requiring 

that the parents and grandparents participate in counseling "to 

promote healing within the family and improved communication 

. . . for the benefit of [the granddaughter], among others" and 

6
directed the counselor to report to the court within 45 days. 

The court also ordered that the "grandparents shall have 

visitation every other Saturday from 10:00 a.m., until 6:00 p.m. 

. . . and every other Thursday from 3:00 p.m., until 6:00 p.m." 

Subsequently, the court conducted another ore tenus hearing and 

entered a final order which granted the grandparents visitation 

and required the parents and grandparents to participate in 

joint family counseling through the court service unit of the 

juvenile and domestic relations district court. 

B. 

 The parents appealed the juvenile and domestic relations 

district court's order to the circuit court. The parents filed 

a motion to dismiss the grandparents' petition asserting, among 

other things, that Code § 20-124.2(B) violates the parents' 

constitutional rights, conferred by the Fourteenth Amendment of 

the United States Constitution, to raise their child as they 

deem appropriate. 

 The circuit court conducted an ore tenus hearing and found 

that the granddaughter's "family is intact. [There is no] 

evidence of parental abuse or neglect; [the parents] are 

respectable members of their community; [the parents] are 

mentally, physically, and morally fit; and [the parents] are 

capable of meeting [the granddaughter's] financial, educational, 

moral, and social needs." 

7
 The circuit court also found that: "[t]he grandparents are 

mentally, physically, and morally fit; [the grandparents] are 

responsible, mature, and respected members of their community; 

. . . [the granddaughter] will benefit from contact with her 

grandparents, [who live] only one block apart [from her]; . . . 

grandparent visitation will not interfere with [the 

granddaughter's] health or emotional development; and . . . 

[t]he grandparents obviously love [their granddaughter] and have 

the ability to adequately care for her." The circuit court 

rejected the parents' constitutional claim, and entered a final 

judgment awarding the grandparents visitation with their 

granddaughter for 10 hours per week. 

C. 

 The parents appealed the judgment of the circuit court to 

the Court of Appeals of Virginia and reasserted their 

constitutional challenge. The Court of Appeals held that the 

parents' autonomy in child rearing is a fundamental right 

protected by the Fourteenth Amendment of the United States 

Constitution and that state interference with that right must be 

justified by a compelling state interest. The Court of Appeals 

concluded that Code § 20-124.2(B) is constitutionally 

permissible because the statute implicitly requires a finding 

that a denial of visitation would be harmful or detrimental to 

the grandchild. The Court of Appeals remanded the proceeding to 

8
the circuit court so that it could make such findings. Williams

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

(1997). The grandparents appeal, and the parents assign crosserror to the Court of Appeals' judgment. 

IV. 

 This Court directed the litigants to brief the issue 

whether the circuit court had subject matter jurisdiction to 

award visitation to the grandparents even though custody of the 

child is not at issue between the parents. The grandparents, 

relying upon Code § 16.1-241, argue that the circuit court did 

have subject matter jurisdiction to adjudicate this proceeding. 

The parents respond that a court may consider visitation by nonparents only in the context of a custody dispute which is 

otherwise before the court. I disagree with the parents. 

 As the grandparents properly observe, they filed their 

petition in the juvenile and domestic relations district court, 

invoking that court's jurisdiction under Code § 16.1-241. This 

statute states in relevant part: 

"[E]ach juvenile and domestic relations district court 

shall have . . . jurisdiction . . . over all cases, 

matters and proceedings involving: 

 "A. The custody, visitation, support, control or 

disposition of a child: 

. . . . 

 "3. Whose custody, visitation or support is a 

subject of controversy or requires determination. In 

9
such cases jurisdiction shall be concurrent with and 

not exclusive of courts having equity jurisdiction, 

except as provided in § 16.1-244; 

. . . . 

 "The authority of the juvenile court to 

adjudicate matters involving the custody, visitation, 

support, control or disposition of a child shall not 

be limited to the consideration of petitions filed by 

a mother, father or legal guardian but shall include 

petitions filed at any time by any party with a 

legitimate interest therein. A party with a 

legitimate interest shall be broadly construed and 

shall include, but not be limited to, grandparents, 

stepparents, former stepparents, blood relatives and 

family members. . . ." Code § 16.1-241. 

 Code § 16.1-296,1 in effect on the date that the parents 

perfected their appeal from the juvenile and domestic relations 

district court to the circuit court, stated in relevant part: 

 "A. From any final order or judgment of the 

juvenile court affecting the rights or interests of 

any person coming within its jurisdiction, an appeal 

may be taken within ten days from the entry of a final 

judgment, order or conviction. . . . 

. . . . 

 "I. In all cases on appeal, the circuit court in 

the disposition of such cases shall have all the 

powers and authority granted by the chapter to the 

juvenile and domestic relations district court." 

 Applying these statutes, I would hold that the juvenile and 

domestic relations district court and the circuit court had 

subject matter jurisdiction to adjudicate the issues raised in 

this proceeding and that the grandparents have a statutory right 

10
to file a petition seeking visitation privileges. Code § 16.1-

241(A) confers broad jurisdiction upon the juvenile and domestic 

relations district courts to adjudicate visitation issues. Code 

§ 16.1-241(B) grants the juvenile and domestic relations 

district courts jurisdiction of petitions which require 

visitation determinations. Indeed, the General Assembly 

specifically mandated in Section (B) of this statute that the 

authority of the juvenile court to adjudicate matters involving 

visitation shall not be limited to consideration of petitions 

filed by parents, but that any party with a legitimate interest, 

including grandparents, may file such petitions. Code § 16.1-

296(A) permits a party to appeal any final order or judgment of 

the juvenile court affecting the rights or interests of "any 

person coming within" the juvenile court's jurisdiction to the 

circuit court. And, Code § 16.1-296(I) grants the circuit court 

the power and authority granted by Chapter 4.1 of Title 16.1 of 

the Code to the juvenile and domestic relations district courts. 

 Furthermore, in West v. King, 220 Va. 754, 756-57, 263 

S.E.2d 386, 387 (1980), we held that Code § 16.1-241, as it 

existed in 1977, did not vest a juvenile court, and, hence, a 

circuit court on appeal, with jurisdiction to order grandparent 

visitation over the objection of a child's custodial parent. 

 1

 Code § 16.1-296 was subsequently amended, but those 

amendments do not affect the disposition of this appeal. 

11
The General Assembly subsequently amended Code § 16.2-241, 

specifically granting jurisdiction to the juvenile and domestic 

relations district court to consider visitation petitions filed 

by grandparents. 

 I observe that today, all seven members of this Court agree 

that the juvenile and domestic relations district court and the 

circuit court had jurisdiction to adjudicate the grandparents' 

petition, and five justices agree that the grandparents have a 

statutory right to file a petition seeking visitation 

privileges. Only Justices Keenan and Koontz believe that the 

grandparents have no statutory right to file a visitation 

petition on the particular facts in this proceeding. 

V. 

A. 

 The grandparents argue that Code § 20-124.2(B) does not 

contravene the Fourteenth Amendment of the United States 

Constitution. The grandparents contend that, "although the 

practical disagreement here is between parents and grandparents, 

the real legal conflict is between the parents and the state. 

The specific challenge is to balance . . . the state's interest 

in protecting the granddaughter's constitutional rights under 

the First Amendment of the United States Constitution to visit 

her grandparents . . . and . . . the parents' constitutional 

rights under the Fourteenth Amendment of the United States 

12
Constitution to control [the granddaughter's] life." 

Continuing, the grandparents assert that Code §§ 20-124.2 and 

16.1-241 require that a court balance the interests of the state 

and the interests of the parents; that the circuit court has 

appropriately balanced the rights of all parties and found by 

clear and convincing evidence that their granddaughter's best 

interests would be served by requiring her to have limited 

visitation with her grandparents; and that the challenged 

statute is constitutional. Responding, the parents contend that 

Code § 20-124.2(B), as applied to them, is unconstitutional 

because the statute infringes upon their Fourteenth Amendment 

rights to conduct their family affairs free from governmental 

intrusion. 

B. 

 The Fourteenth Amendment of the United States Constitution 

provides in relevant part that "[n]o state shall . . . deprive 

any person of life, liberty, or property, without due process of 

law . . . ." U.S. Const. amend. XIV, § 1. The United States 

Supreme Court, explaining the protections accorded by the 

Fourteenth Amendment, has stated: 

 "While this Court has not attempted to define 

with exactness the liberty thus guaranteed, the term 

has received much consideration and some of the 

included things have been definitely stated. Without 

doubt, it denotes not merely freedom from bodily 

restraint but also the right of the individual to 

contract, to engage in any of the common occupations 

13
of life, to acquire useful knowledge, to marry, 

establish a home and bring up children, to worship God 

according to the dictates of his own conscience, and 

generally to enjoy those privileges long recognized at 

common law as essential to the orderly pursuit of 

happiness by free men." Meyer v. Nebraska, 262 U.S. 

390, 399 (1923). 

 The Supreme Court observed in Moore v. East Cleveland, 431 

U.S. 494, 499 (1977), that it "has long recognized that freedom 

of personal choice in matters of marriage and family life is one 

of the liberties protected by the Due Process Clause of the 

Fourteenth Amendment" (quoting Cleveland Bd. of Educ. v. 

LaFleur, 414 U.S. 632, 639-40 (1974)). Additionally, the United 

States Supreme Court has stated its "historical recognition that 

freedom of personal choice in matters of family life is a 

fundamental liberty interest protected by the Fourteenth 

Amendment," Santosky v. Kramer, 455 U.S. 745, 753 (1982), and 

that there is "a 'private realm of family life which the state 

cannot enter.'" Moore, 431 U.S. at 499 (quoting Prince v. 

Massachusetts, 321 U.S. 158, 166 (1944)). Accord Lassiter v. 

Department of Soc. Servs., 452 U.S. 18, 27 (1981). 

 The Supreme Court of the United States has made clear that 

a state may interfere with a parent's right to raise children 

only when the state acts in its police power to protect the 

health or safety of the child. See Wisconsin v. Yoder, 406 U.S. 

205, 230 (1972) (Amish children would not be harmed by receiving 

an Amish education instead of attending public high school); 

14
Prince, 321 U.S. at 170 (Supreme Court approved conviction of a 

guardian who allowed a child to sell religious magazines, 

finding a legitimate state interest in preventing psychological 

or physical injury to the child); Pierce v. Society of Sisters, 

268 U.S. 510, 534 (1925) (parents' decisions to send their 

children to private schools was not inherently harmful to 

children). 

 Here, I am concerned with the parents' fundamental rights 

to raise their child as they deem appropriate. Therefore, any 

statute which seeks to limit those rights can only be justified 

by a compelling state interest, and such statute must be 

narrowly drawn to express only the legitimate state interest at 

stake. Washington v. Glucksberg, ___ U.S. ___, ___, 117 S.Ct. 

2258, 2268 (1997); Reno v. Flores, 507 U.S. 292, 301-02 (1993). 

Thus, this Court must consider whether Code § 20-124.2(B), as 

applied in this case, requires a finding of a compelling state 

interest before a court can interfere with the parents' 

fundamental rights to raise their child by awarding visitation 

to the grandparents over the parents' objections. 

VI. 

A. 

 The language contained in Code § 20-124.2(B) is clear and 

unambiguous and, therefore, I would look no further than the 

plain meaning of the language contained in the statute to 

15
ascertain its meaning. Supinger, 255 Va. at 205-206, 495 S.E.2d 

at 817; City of Winchester v. American Woodmark Corp., 250 Va. 

451, 457, 464 S.E.2d 148, 152 (1995). This Court has stated: 

 "'While in the construction of statutes the 

constant endeavor of the courts is to ascertain and 

give effect to the intention of the legislature, that 

intention must be gathered from the words used, unless 

a literal construction would involve a manifest 

absurdity. Where the legislature has used words of a 

plain and definite import the courts cannot put upon 

them a construction which amounts to holding the 

legislature did not mean what it has actually 

expressed.'" Barr v. Town & Country Properties, Inc., 

240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting 

Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 

(1934)); accord Supinger, 255 Va. at 206-07, 495 

S.E.2d at 817-18; Haislip v. Southern Heritage Ins. 

Co., 254 Va. 265, 268-69, 492 S.E.2d 135, 137 (1997); 

Abbott v. Willey, 253 Va. 88, 91, 479 S.E.2d 528, 530 

(1997); Weinberg v. Given, 252 Va. 221, 225-26, 476 

S.E.2d 502, 504 (1996). 

B. 

 In making visitation determinations, a juvenile and 

domestic relations district court must comply with the statutes 

contained in Title 20, Chapter 6.1 of the Code, which is 

entitled, "Custody and Visitation Arrangements for Minor 

Children."2 This chapter contains numerous statutes which relate 

to custody and visitation. Code § 20-124.1, which is contained 

in Chapter 6.1, makes clear that grandparents and certain other 

 2

 If the judgment of the juvenile and domestic relations 

district court is subsequently appealed to a circuit court, 

which considers the request for visitation de novo, the circuit 

court must also apply the statutes contained in this Chapter. 

16
non-parents, are deemed to have a statutory interest in child 

visitation.3

 Code § 20-124.2 is entitled "Court-Ordered Custody and 

Visitation Arrangements." Code § 20-124.2(B) authorizes a court 

to award visitation to a non-parent with a legitimate interest. 

Code § 20-124.2(B) also establishes the standard that a court 

must apply when making a visitation determination. The court's 

determination must be based upon a showing by clear and 

convincing evidence that the best interests of the child would 

be served by an award of visitation. 

 Code § 20-124.3, which establishes the factors that the 

court shall consider when applying the best interests of the 

child standard, states in part: 

"§ 20-124.3. Best interests of the child. -- In 

determining best interests of a child for purposes of 

determining . . . visitation arrangements . . . the 

court shall consider the following: 

 "1. The age and physical and mental condition of 

the child, giving due consideration to the child's 

changing developmental needs; 

 "2. The age and physical and mental condition of 

each parent; 

 "3. The relationship existing between each 

parent and each child, giving due consideration to the 

positive involvement with the child's life, the 

 3

 Code § 20-124.1 states in relevant part: "'[p]erson with 

a legitimate interest' shall be broadly construed and includes, 

but is not limited to grandparents, stepparents, former 

stepparents, blood relatives and family members provided any 

such party has intervened in the suit or is otherwise properly 

before the court. The term shall be broadly construed to 

accommodate the best interest of the child." 

17
ability to accurately assess and meet the emotional, 

intellectual and physical needs of the child; 

 "4. The needs of the child, giving due 

consideration to other important relationships of the 

child, including but not limited to siblings, peers 

and extended family members; 

 "5. The role which each parent has played and 

will play in the future, in the upbringing and care of 

the child; 

 "6. The propensity of each parent to actively 

support the child's contact and relationship with the 

other parent, the relative willingness and 

demonstrated ability of each parent to maintain a 

close and continuing relationship with the child, and 

the ability of each parent to cooperate in matters 

affecting the child; 

 "7. The reasonable preference of the child, if 

the court deems the child to be of reasonable 

intelligence, understanding, age and experience to 

express such a preference; 

 "8. Any history of family abuse as that term is 

defined in § 16.1-228; and 

 "9. Such other factors as the court deems 

necessary and proper to the determination." 

 None of the factors which a court must consider in Code 

§§ 20-124.2 and -124.3 when determining visitation requires that 

a court make a finding of any type of harm to a child's health 

or safety. The standard, "best interests of the child," does 

not require the state to exercise its police power to protect 

the health or safety of a child. Rather, this comparative 

standard requires a court to make determinations about what may 

be most beneficial to a child. Undoubtedly, most children would 

benefit by experiencing a close and loving relationship with 

caring grandparents. And, such relationship may certainly be in 

a child's best interests. However, I cannot conclude that the 

18
absence of such relationship in this case would affect the 

granddaughter's health or safety. 

 As the record demonstrates, Code § 20-124.2 permits a court 

to intrude upon the parents' fundamental rights to raise their 

child even though the circuit court made a factual finding that 

the parents are mentally, physically and morally fit, that they 

are capable of meeting the child's financial, educational, moral 

and social needs, and there is no evidence of parental abuse or 

neglect. The plain language of this statute permits the state 

to infringe upon the parents' rights to raise their child by 

authorizing a court to mandate, against the parents' wishes, 

those persons with whom the child shall associate. 

 In essence, Code § 20-124.2, as applied in this proceeding, 

permits the government to impose its views regarding how a child 

should be raised upon a child's parents, even though such 

decisions are parental choices protected by the parents' 

fundamental rights emanating from the Fourteenth Amendment. 

Code § 20-124.2, as applied here, is constitutionally deficient 

because it does not require that a court, in awarding visitation 

to the grandparents, make a determination that such visitation 

is necessary to protect the safety or health of the child.4

 4

 I am of the opinion that Code § 20-124.2(B) is 

unconstitutional as applied as opposed to unconstitutional 

facially because there may be factual circumstances when 

application of the statute as written would be constitutionally 

19
C. 

 The Court of Appeals, and the plurality's opinion, 

concluded that Code § 20-124.2(B) is constitutional because the 

General Assembly purportedly intended that a circuit court make 

a finding that "a denial of visitation would be harmful or 

detrimental to the welfare of the child, before interfering with 

the constitutionally protected parental rights of the child 

involved." In reaching this conclusion, the Court of Appeals 

and the plurality rely upon the following language in Code § 20-

124.2(B) which requires that a court "shall give due regard to 

the primacy of the parent-child relationship" when making 

visitation determinations. I disagree with the plurality 

opinion and the Court of Appeals. 

 The plain language contained in Code § 20-124.2(B) is 

devoid of any words which require a court to make a finding of 

harm to a child before granting visitation rights to a 

grandparent over a parent's objection. The statutory language 

that a court "shall give due regard to the primacy of the 

parent-child relationship" simply is not equivalent to the 

constitutional requirement that a court make a finding of a 

compelling state interest before interfering with a parent's 

fundamental right to raise a child. Thus, the plurality opinion 

 

permissible. For example, a court should apply the best 

interest of the child standard in a visitation dispute between 

20
amends Code § 20-124(B) by adding additional language to the 

statute. I cannot infer a legislative intent that is not 

evident in the clear and unambiguous language of Code § 20-

124.2(B) because to do so would permit the judicial branch of 

government to usurp the prerogatives of the legislative branch 

of government by rewriting a statute and, thus, giving that 

statute a construction that was not manifested by the plain 

language that the General Assembly chose to use. 

VII. 

 For these reasons, I would hold that Code § 20-124.2(B) is 

unconstitutional as applied because the statute permits the 

Commonwealth to interfere with the parents' fundamental rights 

to raise their child even though the statute does not require 

the court to make a finding that the failure to award visitation 

over the parents' objections would be detrimental to the health 

or safety of the child. Accordingly, I would enter an order in 

favor of the parents, declaring that Code § 20-124.2(B) is 

unconstitutional as applied in this proceeding. 

JUSTICE KOONTZ, with whom JUSTICE KEENAN joins, dissenting, and 

concurring in result. 

 In my view, the dispositive issue in this case is whether 

the juvenile and domestic relations district court, and 

 

natural parents of a child. 

21
thereafter the circuit court on appeal, had the statutory 

authority to consider a petition by grandparents seeking courtordered visitation with their grandchild over the united 

objections of the child’s parents. The record reflects that the 

parents have an intact marriage, are capable of meeting the 

child’s financial, educational, moral, and social needs, and 

there is no allegation of parental abuse, neglect, or 

abandonment. In my view, in this specific factual context the 

pertinent statutory scheme for resolving child visitation 

disputes does not provide a right to the grandparents to seek 

visitation, and, accordingly, does not provide authority to the 

courts to consider their petition. Thus, I would not reach the 

constitutional issue presented in this appeal. 

 Initially, I would note that the statutory scheme for 

resolving visitation suits invoked by this case applies with 

equal force in the circuit court on appeal and in the juvenile 

and domestic relations district court from which the appeal 

arises. See Code § 20-124.2 (expressly applicable to visitation 

suits whether in the circuit court or the district court); Code 

§ 16.1-296(I)(on appeal, circuit court has all powers and 

authority granted to juvenile and domestic relations district 

court). Because the petition in this case was originally filed 

in the juvenile and domestic relations district court, I begin 

my analysis with consideration of Code § 16.1-241, which 

22
provides the general jurisdiction for that court. In pertinent 

part, this statute provides that: 

[E]ach juvenile and domestic relations district court 

shall have . . . exclusive original jurisdiction . . . 

over all cases, matters and proceedings involving: 

 A. The custody, visitation, support, control or 

disposition of a child: 

 1. Who is alleged to be abused [or] neglected 

. . .; 

 2. Who is abandoned by his parent or other 

custodian or who . . . is without parental care and 

guardianship; 

 2a. Who is at risk of being abused or neglected 

by a parent or custodian . . .; 

 3. Whose custody, visitation or support is a 

subject of controversy or requires determination; 

. . . . 

 The authority of the juvenile court to adjudicate 

matters involving the custody, visitation, support, 

control or disposition of a child shall not be limited 

to the consideration of petitions filed by the mother, 

father or legal guardian but shall include petitions 

filed at any time by any party with a legitimate 

interest therein. A party with a legitimate interest 

shall be broadly construed and shall include, but not 

be limited to, grandparents, stepparents, former 

stepparents, blood relatives and family members. 

(Emphasis added.) 

 Code § 16.1-278.15 provides the dispositional authority of 

the juvenile and domestic relations district court in visitation 

suits in which that court has jurisdiction under Code § 16.1-

241. In pertinent part, Code § 16.1-278.15 provides in 

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subsection (A) that in cases involving the visitation of a child 

pursuant to Code § 16.1-241(A)(3), “the court may make any order 

of disposition to protect the welfare of the child and family as 

may be made by the circuit court.” Subsection (B) further 

provides that in “any case involving the custody or visitation 

of a child, the court may award custody upon petition to any 

party with a legitimate interest therein, including . . . 

grandparents.” 

 In express terms, Code § 16.1-241 provides a broad 

legislative grant of jurisdiction for the juvenile and domestic 

relations district court to consider visitation matters, and 

Code § 16.1-278.15 provides the dispositional authority for that 

court to award visitation to any party with a legitimate 

interest, including a grandparent. However, these code sections 

do not create any right in the grandparents, or in any other 

“party with a legitimate interest” to visitation. Such rights 

did not exist at common law, West v. King, 220 Va. 754, 756, 263 

S.E.2d 386, 387 (1980), nor can they be acquired inferentially. 

Cf. Johnson v. Johnson, 224 Va. 641, 645, 299 S.E.2d 351, 353 

(1983). Rather, being in derogation of the common law, the 

right of the grandparents, or any other party with a legitimate 

interest, to visitation of a child over the united objections of 

two fit parents must be conferred expressly by statute. Cf.

Wackwitz v. Roy, 244 Va. 60, 65, 418 S.E.2d 861, 864 (1992). 

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 To the extent that the grandparents, as parties with a 

legitimate interest, have a right to visitation, such right is 

granted by Code § 20-124.2 which expressly addresses “[c]ourtordered custody and visitation arrangements.” Code § 20-

124.2(A) provides in pertinent part that: 

In any case in which custody or visitation of 

minor children is at issue, whether in a circuit or 

district court, the court shall provide prompt 

adjudication, upon due consideration of all the facts, 

of custody and visitation arrangements, including 

support and maintenance for the children, prior to 

other considerations arising in the matter. The court 

may enter an order pending the suit . . . . 

Code § 20-124.2(B) provides in pertinent part that: 

In determining custody, the court shall give 

primary consideration to the best interests of the 

child. The court shall assure minor children of 

frequent and continuing contact with both parents, 

when appropriate, and encourage parents to share in 

the responsibilities of rearing their children. As 

between the parents, there shall be no presumption or 

inference of law in favor of either. The court shall 

give due regard to the primacy of the parent-child 

relationship but may upon a showing by clear and 

convincing evidence that the best interest of the 

child would be served thereby award custody or 

visitation to any other person with a legitimate 

interest. 

 Code § 20-124.1 provides that the term “‘Person with a 

legitimate interest’ shall be broadly construed and includes, 

but is not limited to grandparents . . . provided any such party 

has intervened in the suit or is otherwise properly before the 

court.” (Second emphasis added.) 

25
 The limiting phrase “provided any such party has intervened 

in the suit or is otherwise properly before the court” in Code 

§ 20-124.1 impacts the scope of both the provisions of Code 

§ 20-124.2(B) and the provisions of Code § 16.1-241. This 

phrase expressly limits the circumstances under which Code § 20-

124.2(B) grants the grandparents the right to visitation and, 

thus, the circumstances under which Code § 16.1-241 provides 

jurisdiction for the court to consider their petition for 

visitation. Moreover, because the common law did not recognize 

the right of a grandparent to visitation with a grandchild, this 

statutory scheme must be strictly applied and not “enlarged in 

[its] operation by construction beyond [its] express terms.” 

C. & O. Railway v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 

(1965); see also Bradick v. Grumman Data Systems Corporation, 

254 Va. 156, 160, 486 S.W.2d 545, 547 (1997); Hyman v. Glover, 

232 Va. 140, 143, 348 S.E.2d 269, 271 (1986) (General Assembly’s 

intent to abrogate common law will be “plainly manifested” in 

the language of a statute). 

 Here, the grandparents, as persons with a legitimate 

interest, are not intervenors in an existing custody or 

visitation suit between the parents, nor do they assert parental 

unfitness, evidenced by abuse, neglect, or abandonment, so as to 

qualify as parties otherwise properly before the court under 

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Code § 16.1-241(A)(1), (2), and (2a).* Thus, only if Code § 20-

124.2(B) is construed without giving any effect to the limiting 

language of Code § 20-124.1, would the court have had statutory 

authority to award visitation to the grandparents under the 

specific circumstances of this case, where two fit parents are 

united in their objections to that visitation. However, the 

limiting language of Code § 20-124.1 suggests that the 

legislature intended to limit the right of grandparents, and 

other parties with a legitimate interest, to seek visitation 

only when that issue would otherwise be properly before the 

court and not when the grandchild is in the custody of two fit, 

natural parents in an intact marriage who are united in their 

objections to visitation by the grandparents. 

 This conclusion is further bolstered by the language in 

Code § 16.1-241(A)(3) that provides statutory authority to the 

court over suits involving a child whose visitation “is a 

subject of controversy or requires determination,” suggesting a 

consistency with the language of Code § 20-124.1. I am aware of 

no prior case in which we have recognized the broad and 

unlimited right of visitation over parental objection asserted 

 *

It cannot be disputed that under the common law of this 

Commonwealth grandparents can file a petition for custody of a 

child upon an allegation of parental unfitness. See Bottoms v. 

Bottoms, 249 Va. 410, 413-414, 457 S.E.2d 102, 104 (1995). 

27
by the grandparents in this case, and I would decline to do so 

now. 

Accordingly, I would hold that the juvenile and domestic 

relations district court had no statutory authority to grant 

visitation to the grandparents under their petition because Code 

§ 20-124.2(B) does not provide a right of visitation to the 

grandparents under the circumstances in this case. For these 

reasons, I would reverse the trial court’s judgment and dismiss 

the grandparents’ petition. 

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