WEST virginia
legislature
2017 regular session
By
[
to the Committee on the Judiciary.
A BILL to amend and
reenact §48-9-103 of the Code of West Virginia, 1931, as amended; and to amend
and reenact §48-10-403 and §48-10-502 of said code, all relating to
grandparent’s rights; permitting grandparent or psychological parent to
institute action for custodial or decision-making responsibility of a child;
allowing guardian ad litem to recommend psychological evaluation; increasing
importance of the factor considering grandparent’s significant caretaking of
child; and minimizing parent’s bias toward a grandparent as a factor in
visitation.
Be it enacted by the
Legislature of West Virginia:
That §48-9-103 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; and that §48-10-403 and §48-10-502 of said code be
amended and reenacted, all to read as follows:
ARTICLE 9. ALLOCATION OF
CUSTODIAL RESPONSIBILITY AND DECISION-MAKING RESPONSIBILITY OF CHILDREN.
§48-9-103. Parties to an action under this article.
(a) Persons who have a
right to be notified of and participate as a party in an action filed by
another are:
(1) A legal parent of the
child, as defined in section 1-232 of this chapter;
(2) An adult or guardian
allocated custodial responsibility or decision-making responsibility under a
parenting plan regarding the child that is then in effect; or
(3) Persons who were
parties to a prior order establishing custody and visitation, or who, under a
parenting plan, were allocated custodial responsibility or decision-making
responsibility; or
(4) In exceptional
cases, a grandparent or psychological parent seeking an allocation of custodial
responsibility or decision-making authority.
(b) In exceptional cases
the court may, in its discretion, grant permission to intervene to other
persons or public agencies whose participation in the proceedings under this
article it determines is likely to serve the child’s best interests. The court may place limitations on
participation by the intervening party as the court determines to be
appropriate. Such persons or public
agencies do not have standing to initiate an action under this article.
ARTICLE 10. GRANDPARENT VISITATION.
§48-10-403. 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. A guardian ad litem may recommend
psychological evaluations.
§48-10-502. Factors to be considered in making a
determination as to a grant of visitation to a grandparent.
In making a determination
on a motion or petition 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 being performed, procured,
assisted or condoned by the grandparent;
(10) Whether 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;
(11) Whether 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. When the grandparent has
been a significant or primary caretaker of the child for over one year, greater
importance shall be placed on this factor in the determination of the court;
(12) The preference of the
parents with regard to the requested visitation, unless it is clear that the
parent is biased against the grandparent having visits with the child; and
(13) Any other factor
relevant to the best interests of the child.
NOTE: The purpose of this bill is
to increase grandparents’ rights in matters of custodial or decision-making
authority and visitation. The bill
allows a guardian ad litem to recommend a psychological evaluation. The bill increases the importance of the
factor considering the grandparent’s significant caretaking of the child. The bill minimizes a parent’s bias toward a
grandparent as a factor in visitation
Strike-throughs indicate language
that would be stricken from a heading or the present law, and underscoring indicates
new language that would be added.