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COURT OF APPEALS OF VIRGINIA

Present: Judges Felton, Kelsey and Senior Judge Willis Argued at Richmond, Virginia

ANDREA K. GRIFFIN v. Record No. 1214-02-2 OPINION BY JUDGE D. ARTHUR KELSEY JUNE 17, 2003

ELBERT EDDIE GRIFFIN

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Paul M. Peatross, Jr., Judge Steven L. Raynor (Christopher A. Jones; Martin & Raynor, P.C., on briefs), for appellant. Christopher J. Smith (Jones & Green, LLP, on brief), for appellee.

Andrea Griffin appeals a decision of the trial court granting her estranged husband weekly visitation with her son ---- a child fathered by another man while the Griffins were separated. On

appeal, she argues that (i) the trial court incorrectly applied the legal standard governing visitation with a non-parent, and (ii) under a correct application of the standard, the evidence does not justify awarding visitation over her parental objection. Agreeing with both contentions, we reverse the trial court's visitation order. I. Andrea Griffin (wife) and Elbert Griffin (husband) married in 1996 and separated in September 1997. During the separation, wife Wife continued,

became sexually involved with Michael Groh.

however, to have sexual relations with husband during this period of separation. In October 1997, wife learned that she was In December

pregnant and informed husband that he was the father.

1997, husband was injured in an automobile accident and spent six to seven weeks in the hospital. Upon husband's discharge from the

hospital, wife returned to the marital home to care for him. Husband suffered extensive injuries, leaving him with significant physical and mental impairments. During this period of

recuperation, however, the couple did not reconcile or express any joint interest in saving the marriage. Wife gave birth to a boy on June 25, 1998. Husband believed

at that time, based on what wife had told him, that he was the child's father. As a result, husband treated the child as his own In September 1999, Wife agreed to allow In December 1999,

and participated in his early development. wife and her son moved in with her mother. husband weekly visitation with the child.

however, a court-ordered paternity test established that Michael Groh was the child's father. Upon learning the results of the

paternity test, wife denied husband any further weekly visitation with her son. In August 2000, over wife's objection, the juvenile and domestic relations district court awarded husband temporary visitation rights with the child despite the results of the paternity test. In June 2001, the JDR court expanded the The final order

visitation schedule and made its order final. - 2 -

stated that the JDR court applied the best-interests test codified in Code

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