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West Virginia Grandparents' Rights

Complex Statutes Work For, Against Petitioners

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West Virginia grandparents' rights

West Virginia's visitation statutes have survived a constitutional challenge.

Photo © State of West Virginia

The West Virginia Code is quite lengthy and complex in its provisions for grandparent visitation rights, which can be considered both positive and negative. The negative side is that much study of the law is required. The positive side is that the detail of the law has helped it survive challenges.

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."

In the wake of the U.S. Supreme Court's decision in Troxel v. Granville, many state statutes have been found unconstitutional, but the West Virginia Supreme Court upheld the constitutionality of its statutes in the case of Brandon L. v. Moats. The decision was based on the narrowness of the West Virginia statutes as compared to the Washington State law examined by the U.S. Supreme Court.

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.

See West Virginia Code, Chapter 48, Article 10.

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