H. B. 4225

(By Delegates Givens and Trump)

[Introduced February 2, 1998; referred to the Committee on the

Judiciiary.]






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, 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, 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.