Grandparent Visitation in WV
West Virginia law protects a grandparent's right to visit with a grandchild in some situations. At the same time West Virginia law also protects the parent-child relationship from interference by grandparents. This article will help you understand the considerations.
Submitted by: Lyne Ranson, Esq., Charleston, WV
First, talk to the child’s parents. Tell them you want to see your grandchild. Try to reach an agreement. It is always best to try to resolve the issue with the parents instead of asking for court-ordered visitation.
Yes. Under West Virginia law a court should grant “reasonable” visitation to a grandparent when two general conditions are met:
• Visitation would be in the best interests of the child, and
• Visitation would not substantially interfere with the parent-child relationship.
For example, Grandparent Visitation may be awarded when the parent through whom the grandparent is related has died.
You will have a easier claim in this situation. For example, perhaps your own child has died or moved away and no one knows where she is. It is the “other” parent who doesn’t want you to see the grandchildren. In this situation you must persuade the judge that grandparent visitation is “probably” in the grandchild’s best interest even though the parent objects.
You will have a much harder claim in this situation. If your own child has custody or visitation, the law “presumes” that no order of grandparent visitation should be issued. The assumption is that you can see the grandchildren when they are with your son or daughter.
To overcome the objection of your own child, the law requires you to present a very strong case. You must make a “clear and convincing” showing that visitation is in the child’s best interest.
Here is how the two situations compare:
► If your own child is absent or unavailable to express her wishes about your visits, you must show that visitation is “probably” in the best interest of the child.
► If your own child objects to your visits, you must show”clear and convincing” evidence that visitation is in the best interest of the child. Not just “probably,” but “clear and convincing.” In the legal system this is a big difference.
Always remember that the court will look at the Best Interests of the child. These disputes are not decided according to what’s best for the grandparent. They aren’t decided according to what’s best for the parent. They are decided based on the Best Interests of the child.
The judge will consider a long list of factors to assess the Best Interests of the Child. These include:
1) The child’s age,
2) The relationship between the child and the grandparent,
3) The relationship between the child’s parents and the grandparent,
4) The time since the child last had contact with the grandparent,
5) The effect grandparent visitation would have on the relationship between the child and the child’s parents,
6) Any custody and visitation arrangement that already exists between the parents with regard to the child,
7) The time available to the child and his or her parents. For example, the child’s school schedule, each parent’s work schedule, or the holiday and vacation schedules.
8) The good faith of the grandparent in filing the motion or petitioner,
9) Any history of physical, emotional, or sexual abuse or neglect performed,
assisted or allowed by the grandparent,
10) Whether the child has lived with the grandparent for a significant period, with or
without the child’s parent or parents,
11) Whether the grandparent has been a significant caretaker for the child,
12) The preference of the parents with regard to the requested visitation,
13) Any other factor which the Court might think is relevant to the best interests of the child.
After you file a court case asking for visitation, the court may appoint a “guardian ad litem” for the child. This is a person appointed by the judge to help sort out what would be in the best interests of the child. A guardian ad litem is an unrelated adult, usually an attorney, who works to protect the child’s interests. The parents and the grandparents speak for themselves; the Guardian ad Litem speaks for the grandchildren.
A “grandparent” is defined as any of the following:
► any biological grandparent, or
► a person married to a biological grandparent, or
► any person granted custody of the grandchild’s biological parent.
If the grandchild is living in West Virginia, any grandparent of that child a can ask for court-ordered visitation. The grandparent does not have to live in West Virginia.
You must file your petition in the county where the child lives. (This may not necessarily be where the grandparent lives.)
Normally you should file your case in the Family Court. You must ask the court to issue an order granting grandparent visitation.
Although the law also permits you to file in the circuit court, the circuit court may prefer to send your case over to the Family Court. In general, Family Courts are more comfortable and familiar with this type of case. It's probably best to start there.
If the child’s parents already are going through a custody or divorce case in Family Court, you must file in that pending Family Court case for a grandparent visitation order.
An order granting visitation may require “supervised visitation” or other limitations.
Supervised visitation is when another person is required to be present during a
grandparent’s time with his/her children.
Other limitations may be placed on a grandparent’s visitation so as not to interfere with the child-rearing decisions of the child’s parents. For example, a court can order:
► That a grandparent cannot influence the child’s religion if different than the parents;
► That the grandparents cannot expose the child to conditions or circumstances against the preferences of the child’s parents.
Generally, a biological parent has a right to raise her child any way he/she deems suitable, as long as the child is not abused or neglected. Courts are not the place for disputes between parent and grandparent about how to raise the grandchild.
Yes, if it is proven that the grandparent violated the rules and conditions of the court-ordered visitation.
You must ask that Court to “modify” the order. You must continue to follow the existing order as long as it is in effect. You cannot make changes in the arrangements until the Court changes the order.
The court will grant a modification only when there has been a “material change” in the circumstances. For example, you could seek visitation when the child’s parent(s) move out of the state. If there hasn’t been a change in circumstances the court is not likely to change the order.
The remarriage of the custodial parent does not affect the court’s ability to grant visitation to a grandparent. The situation will still be judged by the same two basic possibilities:
► If the parent through whom you are related to the grandchild is absent or unavailable, then you must show that grandparent visitation is probably in the child’s best interest;
► If the parent through whom you are related to the grandchild is present and objects to your visits, you must show that grandparent visitation is “clearly and convincingly” in the child’s best interests.
Most of the time, an adoption automatically eliminates the court-ordered grandparent visitation. The only exception is when the adopting parent is also a stepparent, grandparent, or other relative of the child. In that case the grandparent visitation order can remain in effect.
This article was contributed by Lyne Ranson, an attorney practicing in Charleston, WV. For more information about Ms. Ranson, see her web site at http://www.lyneranson.net/
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