Can you get court-ordered visitation with your grandchild in Virginia?  Yes.  Is it more difficult for grandparents?  Yes, it is more difficult for grandparents than for parents.  It’s much more difficult.  Consider the following . . .

In Richter v. Manning, Record No. 1166-12-4 (Va. Ct. App. 2013), the paternal grandparents sought visitation with the 5 year old child of their deceased son, who had died in an automobile accident on July 1, 2009.  Their grandson’s mother had not allowed them access to the child since January 30, 2011, despite the fact that they had all lived together from June 12, 2010 to January 27, 2011, had done a good amount of the work in raising the young child during that time while the mother was at work or school, and had grown quite close to the child.  Their grandson’s mother had specifically refused them visitation with the child because the grandmother had tried to run the mother off the road so that she could continue their argument over the mother’s relationship with the deceased father’s relative, ownership of sentimental items related to the deceased father, and a key to the grandparents’ house.[1]  The police were called, but the court’s opinion implies that no legal action stemmed from it.  Instead, the mother used this incident as grounds to never again allow the paternal grandparents visitation with the young child of their deceased son.

The paternal grandparents accordingly petitioned for visitation and were denied by the trial court judge at the juvenile and domestic relations district court level and again at the circuit court level at their trial de novo.  The paternal grandparents appealed this decision to the Virginia Court of Appeals.

The paternal grandparents argued that the trial court judge killed their case before it even started by not granting their motion to have the child undergo a mental examination pursuant to Virginia Supreme Court Rule 4:10.  That type of evaluation, in their mind, was absolutely necessary if they were going to have any chance to prove that the child’s health or welfare would be actually harmed by not permitting visitation with the grandparents. They already had the deck stacked against them by their burdens of proof in these types of cases, [2]  and they surely would have the deck stacked further against them if they were not given sufficient access to the child to help prove their case, which was largely necessary because they apparently did not have strong independent evidence that the child was suffering (e.g., his getting in trouble at school).

The Virginia Court of Appeals disagreed.  It first held that the mental health evaluation was not necessary.  It supported this decision by, ironically, highlighting what a good job the mental health expert did in this case in the absence of the evaluation, which included him testifying, as an expert in attachment theory, that the child would probably be harmed by severing his ties to his paternal grandparents.[3] Given that the evaluation was not necessary, the appellate court then held that the trial court did not abuse its discretion in not permitting the evaluation.  The trial court judge apparently expressed reasonable concerns about evaluating the young child in this case and such concerns were sufficient to prohibit the appellate court from second guessing his decision (i.e., his decision wasn’t obviously incorrect).  Given these findings, the appellate court upheld the trial court’s decision to not permit the mental health evaluation and accordingly upheld the trial court’s ultimate decision that the grandparents had not proven actual harm to the child in not seeing them.

So what were the trial court judge’s concerns?  Surely they were reasonable ones like the appellate court said, right?  The trial court judge said at the outset that he needed to consider whether the benefits of the evaluation outweigh the burdens on the young child.  This is sensible, and the appellate court agreed that this is a proper approach to take in these cases.  The trial court judge then said that he was specifically concerned with the child undergoing a significant degree of “psychological poking and prodding” pursuant to an examination he believed to “by [its] very nature to be intrusive.”  He further said that allowing the child to resume contact with the grandparents for the purposes of the evaluation was “fraught with peril” given that said contact might have to be later cut off if the grandparents failed to meet their burden of proof at trial.  Lastly, he believed that “there’s got to be some other way to develop that evidence to assist the Court in determining attachment and its [e]ffects without subjecting this boy to an experiment.”

As you might tell, these are not particularly good reasons to not permit an evaluation given the stakes in this case.  Indeed, the trial court judge drastically undersold the benefits of the evaluation to this case and drastically overstated the burdens to the child.  Firstly, the trial court judge seemed convinced that the grandparents would have access to sufficient alternative evidence of actual harm to the child in the absence of an evaluation.  Why would he think that?  How would the paternal grandparents have that kind of evidence given that they hadn’t seen this young child in about 2 years?  Even if they had evidence that child was acting out or engaging in other behavior indicative of attachment problems, how would they be able to link up that behavior to the child’s continued attachment to his grandparents in the absence of someone on their side having interacted with the child?  Secondly, the trial court judge found an undue burden in performing an evaluation that would entail invasive “poking and prodding.”  The trial court judge did not bother specifying what the “poking and prodding” would entail, or how it was an actual burden to the child, or how that burden was significant enough to override the obvious benefit of having the best information possible to make a decision in this case.  The trial court judge, nevertheless, did manage to articulate one possible burden to the child: the peril in allowing resumption of contact with his grandparents only to cut off that that contact in the end should they fail to meet their burden of proof.  But where’s the peril?  If the child does not have a significant attachment to his grandparents, then there will be no harm to the child in cutting off contact again.  If a significant attachment is present, then the court will likely be compelled to grant some visitation with the paternal grandparents so as to ward off further actual harm to the child.  In other words, resuming contact in furtherance of an evaluation appears to be an entirely no lose situation.  Nevertheless, the trial court somehow managed to cast this process as an always lose situation.

As such, we are probably left with a correct appellate court decision upholding an irritating trial court decision that allowed short-term effects, speculative ones to be sure, to outweigh obvious long-term benefits, ones that were at least supported by the testimony of an esteemed expert in the field.  And, in the end, we have an excellent illustration of the very difficult hurdles facing grandparents seeking to regain contact with their grandchildren.  Actual harm is hard to prove, even with an excellent expert in tow, and it’s even harder to prove when the trial court judge hamstrings your efforts at the very start of your case.