30 Regent U. L. Rev. 203 (2017-2018)
A Nonparents Ability to Infringe on the Fundamental Right of Parenting: Reconciling Virginia's Nonparental Child Custody and Visitation Standards

handle is hein.journals/regulr30 and id is 221 raw text is: 









    A  NONPARENT'S ABILITY TO INFRINGE ON THE
          FUNDAMENTAL RIGHT OF PARENTING:
   RECONCILING VIRGINIA'S NONPARENTAL CHILD
         CUSTODY AND VISITATION STANDARDS

                          David  W. Lannetti*

     [S]o long as a parent adequately cares for his or her children (i.e.,
     is fit), there will normally be no reason for the State to inject itself
     into the private realm of the family to further question the ability
     of that parent to make the best decisions concerning the rearing
     of that parent's children.'

                        TABLE   OF CONTENTS

INTRODUCTION           ............................................ ...... 204

1. THE UNITED STATES  SUPREME  COURT'S  GUIDANCE-OR LACK
THEREOF-IN TROXEL v GRANVILLE         .....................   .........207
  A. Recognition of the Fundamental  Right of Parenting in Child
  Visitation Determinations      ...................................... 209
  B. The Failure to Establish the Requisite Standard of Proof for
  Nonparental  Child Visitation Determinations.............           ..... 211
  C. How  States Reacted to Troxel       ............................ 212
     1. Heightened Best-Interests-of-the-Child Standard ......       .....213
     2. Actual-Harm Standard..        ................................ 216

II. NONPARENTAL  CHILD  VISITATION AND  CUSTODY  IN VIRGINIA ............219
  A. Virginia's Statutory Framework for Nonparental  Child Visitation
  and  Custody          ...................................... ...... 219
  B. Child Visitation in Virginia   ..............................  221
     1. Child Visitation Before Troxel    ............................. 221
     2. Child Visitation After Troxel..................         ........... 224
  C. Child Custody  in Virginia         ..........................   ..... 230
     1. Child Custody Before Troxel..  ....................    ........230

        Judge, Fourth Judicial Circuit of Virginia, and Adjunct Professor, Regent University Law
School and William & Mary Law School. The views advanced in this Article represent commentary
concerning the law, the legal system, [and] the administration of justice as authorized by Virginia
Canon of Judicial Conduct 4(B) (permitting judges to speak, write, lecture, teach, and otherwise
participate in extrajudicial efforts to improve the legal system). These views should not be mistaken
for the official views of the Norfolk Circuit Court or my opinion as a circuit court judge in the context
of any specific case. The author thanks Norfolk Circuit Court judicial law clerk Jessica Samms,
Esquire, for her assistance in researching and editing this Article.
     '  Troxel v. Granville, 530 U.S. 57, 68-69 (2000) (plurality opinion).

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