Williams & Williams v. Williams & Williams, 24 Va. App. 778, 485 SE2d 651, 12 VLW 8 (6/9/97).
A ringing declaration of fundamental parental rights comes from the
Virginia Court of Appeals. In a case where both the mother
and the father wanted to deny visitation to the child’s grandparents,
it is their fundamental right of parental autonomy that requires that
the parents’ preference on this matter ought to be treated as the last
word and given the force of the law.
Lawyers had wondered whether the addition of “any person having a legitimate interest” to the statutory list of those allowed to seek visitation in recent amendments to the custody statutes (Code Section 20-124.1) might allow grandparents and others to go into an intact family (or a divorced family where the father and mother nevertheless united against the visitation) and seek visitation rights. The Court of Appeals answers that question in the negative. In doing so, it makes many eloquent statements of the basic and fundamental nature of the rights of parents to direct the upbringing of their children, free from interference by the state and others, which many had assumed to be the basic American law, but which the General Assembly chose to reject in the 1997 session — thus setting up another court-legislature dispute of which we probably have not heard the last. The Court calls the parental autonomy right a Fourteenth Amendment due process right. What that means, when combined with the “primacy” language of Code §20-124.2B, is that visitation over the objection of both parents can’t be ordered unless a court first finds that it would harm the child to deny it, and then finds it consistent with best interests. As a fundamental right, this one can’t be interfered with absent a compelling state interest.