West Virginia Grandparents Rights Guidelines

West Virginia Grandparents Rights Guidelines

West Virginia Code addresses visitation in two different situations. The first situation is when the grandparent’s own child is deceased or has no access to the child. In that case, a grandparent must prove by a “preponderance of evidence” that visitation is in the child’s best interest.  The second situation occurs when a grandparent’s own child denies access to the child. In that case, a grandparent must prove by “clear and convincing evidence” that visitation would serve the best interest of the child, a much more difficult task.  In both situations, a grandparent must also show that visitation would not “substantially interfere with the parent-child relationship.”

West Virginia law specifies 13 factors to be considered in awarding grandparent visitation:

  • The child’s age
  • The grandchild-grandparent relationship
  • The relationship between each of the child’s parents or the person with whom the child is residing and the grandparent
  • The time which has elapsed since the child last had contact with the grandparent
  • The possible effect of visitation on the relationship between the child and the child’s parents or the person with whom the child is residing
  • In the case of parents who are divorced or separated, the custody and visitation arrangement which exists between the parents
  • The time available to the child and his or her parents, considering each parent’s employment schedule, the child’s schedule for home, school and community activities, and the child’s and parents’ holiday and vacation schedule
  • The good faith of the grandparent in filing the motion or petition
  • Any history of physical, emotional or sexual abuse or neglect being performed, procured, assisted or condoned by the grandparent
  • Whether the child has resided with the grandparent for a significant period of time, with or without the child’s parent or parents
  • Whether the grandparent has, in the past, been a significant caretaker for the child
  • The preference of the parents
  • Any other factor relevant to the best interests of the child.

The child may be interviewed in chambers about his or her preference about grandparent visitation. The child is not to be called as a witness or asked to give a written or recorded statement about his or her preference about grandparent visitation.

At the court’s discretion, grandparent visitation can be required to be supervised. Other conditions can be placed on visitation, such as the grandparent being required not to influence the grandchild’s religious beliefs, encourage any activities contrary to the parents’ preferences or act contrary to any child-rearing decisions made by the parents. A grandparent can be found guilty of a misdemeanor if he or she allows contact between the grandchild and any person who has been denied visitation.

Adoption terminates grandparent visitation rights unless the adopting party is a stepparent, grandparent or other relative.

West Virginia Code References on Grandparent Visitation

Grandparent defined.
“Grandparent” means a biological grandparent, a person married or previously married to a biological grandparent, or a person who has previously been granted custody of the parent of a minor child with whom visitation is sought.

Persons who may apply for grandparent visitation.
A grandparent of a child residing in this state may, by motion or petition, make application to the circuit court or family court of the county in which that child resides for an order granting visitation with his or her grandchild.

Motion for grandparent visitation when action for divorce, custody, legal separation, annulment or establishment of paternity is pending.

(a) The provisions of this section apply to any pending actions for divorce, custody, legal separation, annulment or establishment of paternity.

(b) After the commencement of the action, a grandparent seeking visitation with his or her grandchild may, by motion, apply to the family court for an order granting visitation. A grandparent moving for an order of visitation will not be afforded party status, but may be called as a witness by the court, and will be subject to cross-examination by the parties.

(c) Motions or petitions for grandparent visitation shall be filed and heard in the family court except when an abuse or neglect proceeding involving the child or children is pending before the circuit court, in which case the motion or petition shall be filed and heard in the circuit court.

Petition for grandparent visitation
. . . .

(b) A grandparent may petition the family court for an order granting visitation with his or her grandchild, regardless of whether the parents of the child are married. If the grandparent filed a motion for visitation in a previous proceeding for divorce, custody, legal separation, annulment or establishment of paternity, and a decree or final order has issued in that earlier action, the grandparent may petition for visitation if the circumstances have materially changed since the entry of the earlier order or decree.

. . . .

(d) Motions or petitions for grandparent visitation shall be filed and heard in the family court except when an abuse or neglect proceeding involving the child or children is pending before the circuit court, in which case the motion or petition shall be filed and heard in the circuit court.

Appointment of guardian ad litem for the child.
When a motion or petition is filed seeking grandparent visitation, the court, on its own motion or upon the motion of a party or grandparent, may appoint a guardian ad litem for the child to assist the court in determining the best interests of the child regarding grandparent visitation.

Necessary findings for grant of reasonable visitation to a grandparent.
The circuit court or family court shall grant reasonable visitation to a grandparent upon a finding that visitation would be in the best interests of the child and would not substantially interfere with the parent-child relationship.

 PROOF REQUIRED FOR GRANT OF GRANDPARENT VISITATION.

If a motion for grandparent visitation is filed in a pending action for divorce, custody, legal separation, annulment or establishment of paternity…, the grandparent shall be granted visitation if a preponderance of the evidence shows that visitation is in the best interest of the child and that:

(1) The party to the divorce through which the grandparent is related to the minor child has failed to answer or otherwise appear and defend the cause of action; or

(2) The whereabouts of the party through which the grandparent is related to the minor child are unknown to the party bringing the action and to the grandparent who filed the motion for visitation.

 (a) If a petition is filed…when the parent through whom the grandparent is related to the grandchild does not: (1) Have custody of the child; (2) share custody of the child; or (3) exercise visitation privileges with the child that would allow participation in the visitation by the grandparent if the parent so chose, the grandparent shall be granted visitation if a preponderance of the evidence shows that visitation is in the best interest of the child.

(b) If a petition is filed…, there is a presumption that visitation privileges need not be extended to the grandparent if the parent through whom the grandparent is related to the grandchild has custody of the child, shares custody of the child, or exercises visitation privileges with the child that would allow participation in the visitation by the grandparent if the parent so chose. This presumption may be rebutted by clear and convincing evidence that an award of grandparent visitation is in the best interest of the child.

 ORDERS GRANTING OR REFUSING GRANDPARENT VISITATION

 An order granting or refusing the grandparent’s motion or petition for visitation must state in writing the court’s findings of fact and conclusions of law.

Supervised visitation; conditions on visitation.

An order granting visitation privileges to a grandparent may require supervised visitation or may place such conditions on visitation that it finds are in the best interests of the child, including, but not limited to, the following:

(1) That the grandparent not attempt to influence any religious beliefs or practices of the children in a manner contrary to the preferences of the child’s parents;

(2) That the grandparent not engage in, permit or encourage activities, or expose the grandchild to conditions or circumstances, that are contrary to the preferences of the child’s parents; or

(3) That the grandparent not otherwise act in a manner to contradict or interfere with child-rearing decisions made by the child’s parents.

Resources:

West Virginia Customer Service
1-800-249-3778

Note:  The foregoing information is provided as general family law guidelines in West Virginia and should not be considered as legal advice specific to your case.  After reviewing the above material, you will be presented with the opportunity to submit more details specific to your case directly to About The Children.

Submitted by Linda O’Marie, Paralegal

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Posted in West Virginia Guidelines

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