ENROLLED

Senate Bill No. 573

(By Senators White, Minear, Hunter, Walker, Sharpe,

Dittmar, Ball, Schoonover, Fanning, Snyder, Helmick,

Anderson, Deem, Bowman, McKenzie, Kessler, Ross,

Dugan, Scott, Boley, Craigo, Love, Kimble and Plymale)

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[Passed March 13, 1998; in effect ninety days from passage.]

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AN ACT to amend and reenact 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; defining certain terms; providing for the grandparent of a child residing in this state to apply for an order granting reasonable visitation rights with a grandchild; 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; requiring circuit courts to grant grandparent visitation upon a finding that visitation rights would be in the best interests of the child and would not substantially 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; establishing the degree of proof required to support an award of grandparent visitation; prescribing the contents of orders granting or refusing a motion or petition for grandparent visitation; describing the effect of remarriage or adoption on an order granting grandparent visitation; providing for the modification or termination of orders; authorizing the award of attorney's fees; and defining the misdemeanor offense of allowing contact between a child and a person precluded from visitation, and establishing the penalty therefor.

Be it enacted by the Legislature of West Virginia:
That 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.
The Legislature finds that circumstances arise where it is appropriate for circuit courts of this state to order that grandparents of minor children may exercise visitation with their grandchildren. The Legislature further finds that in such situations, as in all situations involving children, the best interests of the child or children are the paramount consideration. It is the express intent of the Legislature that the provisions for grandparent visitation that are set forth in this article are exclusive.
§48-2B-2. Definitions.
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. Visitation for grandparents.
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 that child resides for an order granting visitation with his or her grandchild.
§48-2B-4. Proceedings for visitation for grandparents.
(a) The provisions of this subsection apply to all proceedings for divorce, custody, legal separation, annulment or establishment of paternity. After the commencement of the proceeding, a grandparent seeking visitation with his or her grandchild may, by motion, apply to the circuit 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.
(b) The provisions of this subsection apply when no proceeding for divorce, custody, legal separation, annulment or establishment of paternity is pending. A grandparent may petition the circuit 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 subsection (b) of this section is filed, the matter shall be styled "In re grandparent visitation of [petitioner's(s') name(s)]."
(d) 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.
§48-2B-5. Factors affecting a decision to grant visitation for grandparents.

(a) The circuit 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.
(b) In making a determination on a motion or petition made pursuant to section four 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 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.
§48-2B-6. Interview of child by judge.
(a) In considering the factors listed in section five of this article 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 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 court, the child, the child's attorney or guardian ad litem, if any, and any necessary court personnel.
(b) 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, and the court, in considering the factors listed in section five of this article for purposes of determining whether to grant any visitation, establishing a visitation schedule, or resolving any issues related to the making of any determination with respect to visitation or the establishment of any specific visitation schedule, shall not accept or consider such a written or recorded statement or affidavit.
(c) A child shall not be called as a witness in any proceeding to determine whether grandparent visitation should be awarded.
§48-2B-7. Proof required.
(a) If a motion for grandparent visitation is filed in a pending action for divorce, custody, legal separation, annulment or establishment of paternity pursuant to subsection (a), section four of this article, the grandparent shall be granted visitation if a preponderance of the evidence shows that visitation is in the best interest of the child and that:
(1) The party to the divorce through which the grandparent is related to the minor child has failed 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 who filed the motion for visitation.
(b) If a petition is filed pursuant to subsection (b), section four of this article when the parent through whom the grandparent is related to the grandchild does not: (1) Have custody of the child; (2) share custody of the child; or (3) exercise visitation privileges with the child that would allow participation in the visitation by the grandparent if the parent so chose, the grandparent shall be granted visitation if a preponderance of the evidence shows that visitation is in the best interest of the child.
(c) If a petition is filed pursuant to subsection (b), section four of this article, there is a presumption that visitation privileges need not be extended to the grandparent if the parent through whom the grandparent is related to the grandchild has custody of the child, shares custody of the child, or exercises visitation privileges with the child that would allow participation in the visitation by the grandparent if the parent so chose. This presumption may be rebutted by clear and convincing evidence that an award of grandparent visitation is in the best interest of the child.
§48-2B-8. Orders.
(a) An order granting or refusing the grandparent's motion or petition for visitation shall state in writing the court's findings of fact and conclusions of law.
(b) In the court's discretion, an order granting visitation privileges to a grandparent may require supervised visitation or may place such conditions upon 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.
§48-2B-9. Effect of remarriage or adoption on visitation 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.
§48-2B-10. Modification or termination of grandparent visitation.

(a) Any circuit court which 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.
(b) A circuit 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.
§48-2B-11. Attorney's fees; reasonable costs.

In an action brought under the provisions of this article, a circuit 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.
§48-2B-12. Penalties for violation of order of visitation.

Any grandparent who knowingly allows contact between the minor grandchild and a parent or other person who has been precluded visitation rights with the child by court order shall, in addition to any other remedy under section seven of this article, be guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county jail not more than thirty days or fined not less than one hundred dollars nor more than one thousand dollars.