COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Willis 

Argued at Salem, Virginia 

THOMAS O. WILLIAMS, IV 

AND 

SARAH HASTY WILLIAMS 

 OPINION BY 

v. Record No. 2260-96-3 CHIEF JUDGE NORMAN K. MOON 

 JUNE 3, 1997 

THOMAS O. WILLIAMS, III 

AND 

FRANCES S. WILLIAMS 

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY 

Ray W. Grubbs, Judge 

 Harriet D. Dorsey (Dorsey & Hartley, on 

brief), for appellants. 

 H. Gregory Campbell, Jr., for appellees. 

 Thomas O. Williams, IV and Sarah Hasty Williams appeal the 

trial court's order granting Thomas O. Williams, III and 

Frances S. Williams visitation with the appellants' daughter, 

Leslie Williams. Appellants assert that Code § 20-124.2(B), as 

it pertains to non-parent visitation, violates the Fourteenth 

Amendment to the United States Constitution. 

 We hold that the parents' right to 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. 

Accordingly, we further hold that the language of Code 

§ 20-124.2(B) that "[t]he court shall give due regard to the 

primacy of the parent-child relationship" requires proof that 
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harm or detriment to the welfare of the child would result 

without visitation, before visitation may be ordered over the 

united opposition of the child's parents. Finding that the trial 

court failed to determine if harm or detriment would result to 

Leslie's health or welfare if visitation was not ordered, we 

reverse and remand for reconsideration of visitation consistent 

with the holdings of this opinion. 

 Leslie Williams was born on March 9, 1991, and resides 

with her biological parents in Blacksburg, Virginia, one block 

from the home of appellees, her paternal grandparents. The trial 

court found that 

 Leslie's family is intact. No evidence of 

paternal abuse or neglect; [appellants] are 

respectable members of their community; 

[appellants] are mentally, physically and 

morally fit; and [appellants] are capable of 

meeting Leslie's financial, educational, 

moral and social needs. 

 The parties maintained regular familial contact until 

February, 1994, when appellants, after consultation with a 

counsellor in Waxall, North Carolina, announced that they were 

"detaching" from their relationship with appellees. Counseling 

efforts were unsuccessful, and the grandparents ultimately filed 

a petition seeking visitation with their granddaughter. 

Visitation of ten hours per week was ordered. The circuit court 

held that 

 [appellees] are mentally, physically, and 

morally fit; . . . [appellees] are 

responsible, mature, and respected members of 

their community; . . . Leslie will benefit 

from contact with her grandparents, living 

only one block apart; . . . grandparent 
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visitation will not interfere with her health 

or emotional development; . . . grandparent 

visitation is a minimal intrusion into the 

family unit; . . . [appellees] obviously love 

Leslie and have the ability to adequately 

care for her; and . . . it is in Leslie's 

best interest to have visitations with her 

grandparents. 

 I. The Statute

 There is no common law right of visitation for grandparents 

in Virginia. Kogon v. Ulerick, 12 Va. App. 595, 405 S.E.2d 441 

(1991). However, Code § 20-124.2(B) permits grandparents, and 

others, to seek visitation according to the following standard: 

 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 interests 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 "person with a legitimate interest" 

is to be "broadly construed, and includes, but is not limited to 

grandparents, stepparents, former stepparents, blood relatives 

and family members." 

 II. Fourteenth Amendment Challenge

 The Fourteenth Amendment of the United States Constitution 

provides that "[n]o state shall . . . deprive any person of life, 

liberty or property, without due process of law . . . ." U.S. 

Const. amend. XIV, § 1. In applying the protection of the 

Fourteenth Amendment, the United States Supreme Court has held 

that "[w]here certain fundamental rights are involved . . . 

regulation limiting these rights may be justified only by a 
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`compelling state interest' . . . and . . . legislative 

enactments must be narrowly drawn to express only the legitimate 

state interests at stake." Roe v. Wade, 410 U.S. 113, 155 (1973) 

(emphasis added). 

 A. The Protected Interest 

 While the Constitution does not specifically mention 

parental rights, the Constitution's guarantee of liberty has been 

repeatedly interpreted as encompassing such a right: 

 While this court has not attempted to define 

with exactness the liberty thus guaranteed 

[by the Fourteenth Amendment] . . . . 

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 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). Similarly, the 

Supreme Court in Santosky v. Kramer, 455 U.S. 745, 753 (1982), 

noted its "historical recognition that freedom of personal choice 

in matters of family life is a fundamental liberty interest 

protected by the Fourteenth Amendment." 

 In addition to recognizing as a fundamental liberty interest 

the right of parents to raise their children, the Supreme Court 

has also established that the Constitution's guarantee of 

fundamental privacy rights also embodies a fundamental right to 

parental autonomy in child rearing. In Prince v. Massachusetts, 
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321 U.S. 158, 166 (1944), the Court acknowledged a "private realm 

of family life which the state cannot enter." See also Moore v. 

City of East Cleveland, 431 U.S. 494 (1977). 

 Other jurisdictions, considering the constitutionality of 

grandparent visitation statutes, have concluded that the right to 

parental autonomy in child rearing constitutes a fundamental 

liberty interest. See Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993); 

Brooks v. Parkerson, 454 S.E.2d 769 (Ga. 1995). The Tennessee 

Supreme Court, holding its grandparent visitation statute 

unconstitutional under the Tennessee Constitution,1

 held that 

"parental rights constitute a fundamental liberty interest." 

Hawk, 855 S.W.2d at 579. Similarly, the Georgia Supreme Court, 

noting that "[t]he United States Supreme Court has long 

recognized a constitutionally protected interest of parents to 

raise their children without undue state interference," 

determined that the rights of parents to raise their children 

constituted a fundamental right. Brooks, 454 S.E.2d at 771. 

 In light of these considerations, we hold that the right of 

the parents in raising their child is a fundamental right 

protected by the Fourteenth Amendment. 

 

 1 Tennessee's grandparent visitation statute is markedly 

similar to Virginia's visitation statute. The Tennessee statute 

"allows a court to order `reasonable visitation' with grandparents 

if it is `in the best interests of the minor child.'" Hawk, 855 

S.W.2d at 577 (citation omitted). The Tennessee Supreme Court 

found the statute unconstitutional under Article I, Section 8 of 

the Tennessee Constitution, which is substantively identical to 

the Fourteenth Amendment, as it provides that "no man shall be . . 

. deprived of his life, liberty or property, but by the judgement 

of his peers or the law of the land." 
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 B. Compelling State Interest

 State interference with a fundamental right must be 

justified by a "compelling state interest." Roe, 410 U.S. at 

155. The Supreme Court has clearly established 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. See Wisconsin v. 

Yoder, 406 U.S. 205, 230 (1972) (holding that Amish children 

would not be harmed by receiving an Amish education instead of 

attending public high school); Prince, 321 U.S. at 170 

(permitting state prosecution of a parent who allowed her child 

to sell religious magazines on the ground that the state's 

interference was designed to prevent "psychological or physical 

injury" to the child); Pierce v. Society of Sisters, 268 U.S. 

510, 534 (1925) (holding the parents' decisions to send their 

children to private schools was not inherently harmful to the 

children); Meyer, 262 U.S. at 402-03 (providing that "proficiency 

in a foreign language . . . is not injurious to the health, 

morals or understanding of the ordinary child"). 

 C. Constitutionality of Grandparent

Visitation Statute

 Code § 20-124.2(B) permits the state to interfere with the 

right of parents to raise their children by allowing a court, 

"upon a showing by clear and convincing evidence that the best 

interests of the child would be served," to order non-parent 

visitation. However, Code § 20-124.2(B) specifically indicates 
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that "[t]he court shall give due regard to the primacy of the 

parent-child relationship." We interpret this language to 

evidence the legislature's intent that the court make the 

necessary 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. 

 We further hold that the requirement of Code § 20-124.2(B) 

that "[t]he court shall give due regard to the primacy of the 

parent-child relationship" renders insufficient a finding by a 

court that it would be "better," "desirable," or "beneficial" for 

a child to have visitation with his or her grandparents. "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." Hawk, 855 S.W.2d at 580. 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. 

 The "best interests" standard is considered in determining 

visitation only after a finding of harm if visitation is not 

ordered. Without a finding of harm to the child, a court may not 

impose its subjective notions of "best interests of the child" 

over the united objection of the child's parents without 

violating the constitutional rights of those parents. In this 
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regard, the parents' constitutional rights take precedence over 

the "best interests" of the child. 

 Holding that Code § 20-124.2(B) requires a finding that harm 

or detriment to a child's health or welfare would result without 

visitation, before visitation can be ordered over the united 

objection of the child's parents, and that the trial court failed 

to make such a finding, we reverse and remand for reconsideration 

of visitation in accord with this opinion. 

 Reversed.