Senate Bill No. 259
(By Senators Bowman, Dittmar, Kessler, White, Deem, Kimble, Ross,
McKenzie, Anderson, Ball, Hunter, Sprouse, Schoonover, Fanning,
Helmick, Dugan and Minear)
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[Introduced January 30, 1998;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact sections one, two, three, four, five
and six, article two-b, chapter forty-eight of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, all relating to grandparent visitation generally;
setting forth legislative findings and intent; removing
provisions of current law that establish circumstances under
which grandparents are granted visitation rights; providing
for the grandparent of a child residing in this state to apply
for an order granting reasonable visitation rights with the
child; defining certain terms; authorizing a grandparent, in
proceedings for divorce, custody, legal separation, annulment
or establishment of paternity, to make a motion for reasonable
visitation rights; authorizing a grandparent to petition for reasonable visitation rights when no domestic relations action
is pending; giving circuit courts the discretion to grant
grandparent visitation upon a finding that visitation rights
would be in the best interests of the child and would not
interfere with the parent-child relationship; describing the
factors which the circuit court must consider in making a
determination on a motion or petition for grandparent
visitation; providing for an in camera interview with a child
by the circuit judge; and describing the effect of remarriage
or adoption on an order granting grandparent visitation.
Be it enacted by the Legislature of West Virginia:
That sections one, two, three, four, five and six, article
two-b, chapter forty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted, all to read as follows:
ARTICLE 2B. GRANDPARENT VISITATION.
§48-2B-1. Legislative findings; intent; definitions.
(a) The Legislature finds that circumstances may arise where
it is appropriate for circuit courts of this state to have
jurisdiction to grant to the grandparents of minor children a right
of visitation to enhance the best interests of the minor child or
children as well as the grandparent. The Legislature further finds
that in such situations, as in all situations involving children,
the best interests of children must be the paramount consideration. It is the express intent of the Legislature that the provisions for
grandparent visitation set forth in this article
shall will be
exclusive and under all circumstances the
best interests of the
child or children involved
shall will be the court's first and
paramount consideration.
(b) For purposes of this article, "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 by a court of competent jurisdiction.
§48-2B-2. Grandparent visitation where divorce or separate
maintenance is ordered.
(a) A circuit court of this state, upon ordering a divorce or
an annulment or upon the granting of separate maintenance pursuant
to article two of this chapter, may grant reasonable visitation
rights to a grandparent of a minor child of the parties to the
divorce petitioning for visitation rights if the grandparent is
related to such minor child through a party, and:
(1) The party to the divorce through which the grandparent is
related to the minor child fails 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 petitioning for visitation rights.
(b) Notwithstanding any provision of this code to the
contrary, where service of process in a divorce action is made by
means other than personal service and the whereabouts of the
party-defendant are unknown or the party-defendant fails to answer
the complaint, notice of the action shall be made upon the
grandparents of any minor child of the party whose whereabouts are
unknown or who fails to answer the complaint to afford said
grandparent or grandparents the opportunity to petition the court
for visitation. Such notice shall be given at the time of the
entry of a final order of divorce and shall be consistent with the
provisions of rule four of the West Virginia rules of civil
procedure. Any petition for grandparent visitation filed pursuant
to this section shall be so filed within thirty days of the notice
having been received.
(c) In determining the appropriateness of granting visitation
rights to the grandparent, the court shall consider the amount of
personal contact between the grandparent and minor child prior to
the filing of the petition, whether or not the granting of
visitation would interfere with the parent-child relationship and
the overall effect on the minor child's best interests that the
granting or denial of visitation would have.
§48-2B-2. Visitation rights for grandparents.
(a) A grandparent of a child residing in this state may, by
motion or petition, make application to the circuit court of the county in which the child resides for an order granting reasonable
visitation rights with the child. It is the burden of the
grandparent to prove by a preponderance of the evidence that the
granting of visitation will be in the best interests of the child
and will not interfere with the parent-child relationship.
(b) For purposes of this article:
(1) "Child" means a person under the age of eighteen years
who has not been married or otherwise emancipated.
(2) "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.
§48-2B-3. Grandparent visitation upon abandonment or abrogation
of visitation rights by parent or judicial preclusion of
visitation.
(a) A grandparent may petition a circuit court, which has
entered a final order of divorce or annulment or has granted a
decree of separate maintenance, for an order granting visitation
rights with a minor grandchild where:
(1) The parent through whom the grandparent is related to the
minor grandchild is deemed the noncustodial parent of the minor
child by virtue of the court's order regarding custody of the minor
child;
(2) The parent through whom the grandparent is related to the minor child having been granted visitation rights with the minor
child refuses, fails or is unable to avail himself or herself of
the right of visitation for a period of six months or more or has
been precluded visitation rights by court order or is an active
duty member of the armed forces of the United States whose
permanent duty station is located more than one hundred miles from
the border of this state; and
(3) The petitioning grandparent has been refused visitation
with a minor grandchild by the custodial parent for a period of six
months or more.
(b) In determining the appropriateness of granting visitation
rights to a grandparent pursuant to this section, the court shall
consider the amount of personal contact between the grandparent and
minor child prior to the filing of the petition, whether or not the
granting of visitation would interfere with the parent-child
relationship and the overall effect of such visitation on the minor
child's best interest.
§48-2B-3. Proceedings for visitation rights for grandparents.
(a) In all proceedings for divorce, custody, legal separation,
annulment, or establishment of paternity, after the commencement of
the proceeding, a grandparent seeking reasonable visitation rights
with a child may, by motion, apply to the court for an order
granting such 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.
(b)(1) A grandparent seeking reasonable visitation rights
with a child may petition the court for an order granting such
visitation, if:
(A) If the parents of the child are not married;
(B) If the parents of the child are married and no proceeding
for divorce, custody, legal separation, annulment, or establishment
of paternity is pending; or
(C) If a motion was not filed in a proceeding for divorce,
custody, legal separation, annulment, or establishment of
paternity, or if a motion was filed in such action and the
circumstances have materially changed, and in either event a decree
or final order has issued in the action.
(2) A petition under this subsection shall not be filed as an
adversarial proceeding, and shall be styled "In re grandparent
visitation of [petitioner's(s') name(s)]."
§48-2B-4. Grandparent visitation when parent deceased.
(a) Notwithstanding any provisions of this code to the
contrary, a grandparent may petition the circuit court of the
county of residence of any minor grandchild for an order granting
said grandparent reasonable visitation rights with the minor
grandchild where the parent through whom the grandparent is related
is deceased.
(b) In determining the appropriateness of granting visitation
rights to a grandparent pursuant to this section, the court shall
consider the amount of personal contact between the grandparent and
minor child prior to the filing of the petition, whether or not the
granting of visitation would interfere with the parent-child
relationship and the overall effect of such visitation on the minor
child's best interest.
§48-2B-4. Factors affecting a decision to grant visitation rights
for grandparents.
(a) The circuit court shall grant reasonable visitation
rights to a grandparent upon a finding that visitation rights would
be in the best interests of the child and would not interfere with
the parent-child relationship.
(b) In making a determination on a motion or petition made
pursuant to section three of this article, the court shall consider
the following factors:
(1) The age of the child;
(2) The relationship between the child and the grandparent;
(3) The relationship between each of the child's parents or
the person with whom the child is residing and the grandparent;
(4) The time which has elapsed since the child last had
contact with the grandparent;
(5) The effect that such visitation will have on the
relationship between the child and the child's parents or the person with whom the child is residing;
(6) If the parents are divorced or separated, the custody and
visitation arrangement which exists between the parents with regard
to the child;
(7) The time available to the child and his or her parents,
giving consideration to such matters as 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;
(8) The good faith of the grandparent in filing the motion or
petition;
(9) Any history of physical, emotional or sexual abuse or
neglect by the grandparent;
(10) The preference of the parents with regard to the
requested visitation; and
(11) Any other factor relevant to the best interests of the
child.
(c) With regard to any motion or petition made pursuant to
this article, it shall be prima facie evidence that visitation is
in the child's best interest if evidence shows:
(1) That the child has, in the past, resided with the
grandparent for a significant period or periods of time, with or
without the child's parent or parents; or
(2) That the grandparent has, in the past, been a significant caretaker for the child, regardless of whether the child resided
inside or outside of the grandparent's residence.
§48-2B-5. Grandparent visitation when minor child has resided with
grandparent.
(a) Notwithstanding any provision of this code to the
contrary, a grandparent may petition the circuit court of the
county in which he or she resides for an order granting said
grandparent reasonable visitation rights where:
(1) Said minor grandchild has resided without significant
interruption with the grandparent with the parents residing
elsewhere for a period of six consecutive months or more within the
past two years;
(2) The minor grandchild is subsequently removed from the home
by a parent or parents; and
(3) The removing parent or parents have refused to allow the
petitioning grandparent visitation with the minor child who
formerly resided in the grandparent's home.
(b) If the circuit court determines that the requirements set
forth in subsection (a) of this section have been shown, it shall
grant such reasonable visitation rights to the petitioning
grandparent as may be consistent with the minor child's best
interests.
§48-2B-5. Interview of child by judge.
In considering the factors listed in section four of this article for purposes of determining whether to grant visitation
rights, establishing a specific visitation schedule, and resolving
any issues related to the making of any determination with respect
to visitation rights or the establishment of any specific
visitation schedule, the court, in its discretion, may interview in
chambers any or all involved children regarding their wishes and
concerns. If the court interviews any child concerning the child's
wishes and concerns regarding those visitation matters, the
interview will be conducted in chambers, and no person shall be
present other than the judge, the child, the child's attorney, if
any, and any necessary court personnel, except that in the judge's
discretion, the attorney of each parent may be permitted to be
present in the chambers during the interview. No person shall
obtain or attempt to obtain from a child a written or recorded
statement or affidavit setting forth the wishes and concerns of the
child regarding those visitation matters. A court, in considering
the factors listed in section four of this article for purposes of
determining whether to grant any visitation rights, establishing a
visitation schedule, or resolving any issues related to the making
of any determination with respect to visitation rights or the
establishment of any specific visitation schedule, shall not accept
or consider a written or recorded statement or affidavit that
purports to set forth the child's wishes or concerns regarding
those visitation matters.
§48-2B-6. Grandparent visitation where parents unwed.
(a) Notwithstanding any provision of this code to the
contrary, a grandparent may petition the circuit court of the
county of residence of the minor child with whom visitation is
sought for an order granting said grandparent reasonable visitation
rights where:
(1) The child of said grandparent has been legally determined
to be the parent of the minor child or the child of the grandparent
has acknowledged paternity of the minor child through a sworn,
notarized statement;
(2) The parent of the minor child through whom the grandparent
is related is precluded by court order from visitation with the
minor child or has failed to exercise the right of visitation for
a period of six months or more or is an active duty member of the
armed forces of the United States whose permanent duty station is
located more than one hundred miles from the border of this state;
and
(3) The parent of the minor child who has custody of said
child refuses to allow the petitioning grandparent reasonable
visitation with the minor child.
(b) In determining the appropriateness of granting visitation
rights to a grandparent pursuant to this section, the court shall
consider, where applicable, the amount of personal contact between
the grandparent and minor child prior to the filing of the petition, whether or not the granting of visitation would interfere
with the parent-child relationship and the overall effect of such
visitation on the minor child's best interest.
§48-2B-6. Effect of remarriage or adoption on visitation rights
for grandparents.
(a) The remarriage of the custodial parent of a child does
not affect the authority of a circuit court to grant reasonable
visitation to any grandparent.
(b) If a child who is subject to a visitation order under
this article is later adopted, the order for grandparent visitation
is automatically vacated when the order for adoption is entered,
unless the adopting parent is a stepparent, grandparent or other
relative of the child.
NOTE: The purpose of this bill is to broaden the
circumstances under which a grandparent may exercise the right of
visitation with a minor grandchild.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.