Senate Bill No. 395
(By Senators Kessler, Hunter, McCabe, Rowe, Minear, Unger,
Weeks, Edgell, Plymale, Smith, Sharpe, Ross, Bowman, Snyder, White,
Fanning, Jenkins, McKenzie, Prezioso and Minard)
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[Introduced January 29, 2003; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact section five hundred one, article five,
chapter forty-eight of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to amend and reenact
sections three hundred one, four hundred one, four hundred
two, five hundred one, five hundred two, six hundred one,
eight hundred one, eight hundred two, nine hundred one, one
thousand one, one thousand two and one thousand one hundred
one, article ten of said chapter, all relating to granting of
temporary grandparent visitation; and making technical
corrections.
Be it enacted by the Legislature of West Virginia:
That section five hundred one, article five, chapter
forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that sections
three hundred one, four hundred one, four hundred two, five hundred
one, five hundred two, six hundred one, eight hundred one, eight
hundred two, nine hundred one, one thousand one, one thousand two
and one thousand one hundred one, article ten of said chapter
be
amended and reenacted, all to read as follows:
ARTICLE 5. DIVORCE.
PART 5. TEMPORARY RELIEF DURING PENDENCY
OF ACTION FOR DIVORCE.
§48-5-501. Relief that may be included in temporary order of
divorce.
At the time of the filing of the complaint or at any time
after the commencement of an action for divorce under the
provisions of this article and upon motion for temporary relief,
notice of hearing and hearing, the court may order all or any
portion of the following temporary relief described in this part 5
or in article ten of this chapter, to govern the marital rights and
obligations of the parties during the pendency of the action.
ARTICLE 10. GRANDPARENT VISITATION.
PART 3. APPLICATION TO THE FAMILY COURT
FOR GRANDPARENT VISITATION.
§48-10-301. Persons who may apply for grandparent visitation;
venue.
A grandparent of a child residing in this state may, by motion or petition, make application to the
circuit family court of the
county in which that child resides for an order granting visitation
with his or her grandchild.
The court may order temporary relief
to a grandparent who moves, petitions or makes an application for
such relief during the pendency of the action.
PART 4. PROCEEDINGS FOR VISITATION FOR GRANDPARENTS.
§48-10-401. Motion for grandparent visitation when action for
divorce, custody, legal separation, annulment or
establishment of paternity is pending
.
(a) The provisions of this section apply to any pending
actions for divorce, custody, legal separation, annulment or
establishment of paternity.
(b) After the commencement of the action, a grandparent
seeking visitation with his or her grandchild may, by motion, apply
to the
circuit family court for an order granting 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.
§48-10-402. Petition for grandparent visitation when action for
divorce, custody, legal separation, annulment or
establishment of paternity is not pending.
(a) The provisions of this section apply when no proceeding
for divorce, custody, legal separation, annulment or establishment
of paternity is pending.
(b) A grandparent may petition the
circuit family court for an
order granting visitation with his or her grandchild, regardless of
whether the parents of the child are married. If the grandparent
filed a motion for visitation in a previous proceeding for divorce,
custody, legal separation, annulment or establishment of paternity,
and a decree or final order has issued in that earlier action, the
grandparent may petition for visitation if the circumstances have
materially changed since the entry of the earlier order or decree.
(c) When a petition under this section is filed, the matter
shall be styled "In re grandparent visitation of [petitioner's(s')
name(s)]."
PART 5. FACTORS AFFECTING A DECISION TO GRANT
VISITATION FOR GRANDPARENTS.
§48-10-501. Necessary findings for grant of reasonable visitation
to a grandparent.
The
circuit family court shall grant reasonable visitation to
a grandparent upon a finding that visitation would be in the best
interests of the child and would not substantially interfere with
the parent-child relationship.
§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
family
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;
(12) The preference of the parents with regard to the
requested visitation; and
(13) Any other factor relevant to the best interests of the
child.
PART 6. INTERVIEW OF CHILD BY THE FAMILY COURT JUDGE.
§48-10-601. Interview of child in chambers.
In considering the factors listed in section 10-502 for
purposes of determining whether to grant visitation, establishing
a specific visitation schedule, and resolving any issues related to
the making of any determination with respect to visitation or the
establishment of any specific visitation schedule, the
family
court, in its discretion, may interview in chambers any or all
involved children regarding their wishes and concerns. No person
shall be present other than the
family court
judge, the child, the
child's attorney or guardian ad litem, if any, and any necessary
family court personnel.
PART 8. ORDERS GRANTING OR REFUSING
GRANDPARENT VISITATION.
§48-10-801. Order granting or refusing grandparent visitation
must state findings of fact and conclusions of law.
An order granting or refusing the grandparent's motion or petition for visitation must state in writing the
family court's
findings of fact and conclusions of law.
§48-10-802. Supervised visitation; conditions on visitation.
In the
family court's discretion, an order granting visitation
privileges to a grandparent may require supervised visitation or
may place such conditions on visitation that it finds are in the
best interests of the child, including, but not limited to, the
following:
(1) That the grandparent not attempt to influence any
religious beliefs or practices of the children in a manner contrary
to the preferences of the child's parents;
(2) That the grandparent not engage in, permit or encourage
activities, or expose the grandchild to conditions or
circumstances, that are contrary to the preferences of the child's
parents; or
(3) That the grandparent not otherwise act in a manner to
contradict or interfere with child-rearing decisions made by the
child's parents.
PART 9. EFFECT OF REMARRIAGE OR ADOPTION
ON GRANDPARENT
VISITATION.
§48-10-901. Effect of remarriage of the custodial parent.
The remarriage of the custodial parent of a child does not
affect the authority of a
circuit family court to grant reasonable
visitation to any grandparent.
PART 10. MODIFICATION OR TERMINATION OF
GRANDPARENT VISITATION.
§48-10-1001. Continuing jurisdiction of family court.
Any
circuit family court that grants visitation rights to a
grandparent shall retain jurisdiction throughout the minority of
the minor child with whom visitation is granted to modify or
terminate such rights as dictated by the best interests of the
minor child.
§48-10-1002. Termination of grandparent visitation.
A
circuit family court shall, based upon a petition brought by
an interested person, terminate any grant of the right of
grandparent visitation upon presentation of a preponderance of the
evidence that a grandparent granted visitation has materially
violated the terms and conditions of the order of visitation.
PART 11. ATTORNEY'S FEES AND COSTS.
§48-10-1101. Attorney's fees; reasonable costs.
In an action brought under the provisions of this article, a
circuit family court may order payment of reasonable attorney's
fees and costs based upon the equities of the positions asserted by
the parties to pay such fees and costs.
NOTE: The purpose of this bill is to allow family court
judges to order grandparent visitation on a temporary basis during
the pendency of a divorce action and to make technical corrections
to clarify that grandparent visitation issues shall be heard by the
family court judge.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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