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Grandparents' Visitation Rights

Last Updated On: 1/6/2017 1:37:58 PM

Do grandparents have legal rights to visit with their grandchildren in West Virginia?

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.

The Legislature passed a specific West Virginia statute about Grandparent Visitation. This law defines when and how grandparents may seek a court order forcing a parent to permit the grandparent to spend time with the grandchild. The West Virginia Supreme Court has been emphatic that this law is the “exclusive means through which a grandparent may seek visitation with a grandchild.”

What should I do if I want to have visitation with my grandchild?

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.

In West Virginia, is a grandparent permitted to seek court-ordered visitation with a grandchild?

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.

In making decisions about Grandparent Visitation, however, courts must give “significant weight” to the wishes of the fit parent. The decision is not based ONLY on the “best interests of the child.” The courts must also recognize that the US Constitution protects the right of a fit parent to make decisions regarding the care, custody and control of his or her children.

What if my son or daughter is not available to participate in the case, or does not have custody or visits with the grandchild?

You will have an 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. But the court must also give special weight to the wishes of the fit parent.

What if my own son or daughter will not let me visit with my grandchild? Or if I want to visit with the grandchild more than my own son or daughter lets me?

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. This will be particularly hard when the parent (your child) is a fit and proper parent, but does not want you to see the grandchildren.

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, even after the court gives special weight to the wishes of the parent.
  • 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, even after the court gives special weight to the wishes of the parent. Not just “probably,” but “clear and convincing.” In the legal system this is a big difference.

How does the court figure out whether Grandparent Visitation is in the “Best Interests” of the child?

Always remember that the court will look at the Best Interests of the child, and give special weight to the preferences of a fit and proper parent. These disputes are not decided according to what’s best for the grandparent. 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. The court must give “special weight” to this factor, assuming the parent is fit and capable, and
  13. Any other factor which the Court might think is relevant to the best interests of the child.

Who speaks for the children?

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.

Under the law, who qualifies as a “grandparent” who can file for visitation?

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.

Who can seek grandparent visitation?

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.

If the grandchild does not live in West Virginia, no Grandparent Visitation case can be filed in West Virginia.

Where do I file for visitation?

You must file your petition in the county where the child lives. (This may not necessarily be where the grandparent lives.)

You must file your case in Family Court.  The only exception is if there is already an abuse and neglect case in circuit court involving the child. In that situation you must file your request for visitation in circuit court.

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.

Should I get a note from my grandchild saying she wants to visit me?

No, absolutely not!  The courts do not want to force children to have to choose which family member they love the most.  In fact, the law says that "no person shall obtain or attempt to obtain from a child" a recorded or written statement.  Also, if someone does get a statement, the law says that the Family Court "shall not accept or consider such a written or recorded statement."  Finally, the law is clear that "a child shall not be called as a witness" in a grandparent visitation proceeding.

The judge can decide to interview children in private.  No one can be present during those private interviews except the judge, the children, and any guardian ad litem who was appointed by the court to help the children.  None of the parents, none of the grandparents, and none of their lawyers can be in the room during the private interview with the children.  

What is Supervised Visitation?

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.

Can a court take away a grandparent’s rights?

Yes, if it is proven that the grandparent violated the rules and conditions of the court-ordered visitation.

What if I filed for visitation in a previous court proceeding and a final order was issued already? What can I do now?

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.

What if my son/daughter’s ex-wife/husband remarries?

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, even after giving “special weight” to the preferences of the parent;
  • 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, even after giving “special weight” to the preferences of the parent.

What happens if my grandchild is later adopted?

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.

[Note: This article was written by Lyne Ranson, an attorney practicing in Charleston, West Virginia. For more information about Ms. Ranson, see her web site. Minor updates were made by LAWV in 2017 to reflect decisions by the West Virginia Supreme Court of Appeals about Grandparent Visitation.]

This is general legal information. For guidance about your situation, talk to a lawyer.