Lois O'Leary v. Stephen T Moore ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia
LOIS O'LEARY
MEMORANDUM OPINION * BY
v. Record No. 3187-02-2 JUDGE RUDOLPH BUMGARDNER, III
JULY 8, 2003
STEPHEN T. MOORE
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Michael C. Allen, Judge
W. Barry Montgomery (Kalbaugh, Pfund &
Messersmith, on brief), for appellant.
Graham C. Daniels (Todd M. Ritter; Daniels &
Morgan, on brief), for appellee.
Lois O'Leary appeals the denial of her petition for
visitation with her granddaughter. The child's father and sole
surviving parent, Stephen T. Moore, objected to the petition.
The trial court found the father was a fit and loving parent and
no harm would arise from denying the petition. Finding no
error, we affirm.
The child was born January 17, 1996 to unwed parents. Her
mother died in November 1998, and her father has raised her
since then. In June 2001, the maternal grandmother filed a
petition for visitation. The father conceded the grandmother
had a valuable relationship with the child and supported its
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
continuation, but he opposed court-ordered visitation. The
trial court relied on Williams v. Williams, 256 Va. 19, 501
S.E.2d 417 (1998), and denied the petition.
Parents have a fundamental right to determine how to raise
their children, and we presume that fit parents act in their
children's best interest. Troxel v. Granville, 530 U.S. 57, 65
(2000); Williams, 256 Va. at 21-22, 501 S.E.2d at 418. Courts
may not interfere in the parent-child relationship by ordering
visitation to a non-parent over the parent's objection absent a
showing of "'actual harm to the child's health or welfare
without such visitation.'" Williams, 256 Va. at 22, 501 S.E.2d
at 418 (citation omitted).
The grandmother contends the trial court erred in applying
Williams because the child's family unit was not intact. She
maintains that Dotson v. Hylton, 29 Va. App. 635, 513 S.E.2d 901(1999), created an exception to Williams when the family is not
intact. She argues this family was not intact because her
daughter died. Griffin v. Griffin, __ Va. App. ___, ___ S.E.2d
___ (June 17, 2003), rejected such an interpretation. In
Dotson, one parent requested the non-parent visitation and the
other parent objected. The courts had been involved in the
child's life since the parents divorced three years earlier and
the parents disagreed about the grandmother's visitation. 29
Va. App. at 639, 513 S.E.2d at 903.
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In this case, one parent was deceased and the child's only
surviving parent objected to court-ordered visitation. The
family situation was the same as that in Troxel: the parents
never married, and one was dead. In order to interfere with
those parental rights, the trial court needed the compelling
justification mandated in Troxel, 530 U.S. at 68-69, and defined
in Williams. Having found the father a "fit, loving, and
responsible parent" who "has exercised parental authority in an
appropriate way," the trial court could only defer to the
"fundamental right of parents to make decisions concerning the
care, custody, and control of their children." 530 U.S. at 66.
Accordingly, we affirm the trial court.
Affirmed.
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