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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[Introduced February 17, 1998; referred to

the Committee on the Judiciary.]

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A BILL 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; 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; requiring circuit courts to grant grandparent visitation except upon a finding that visitation rights would not be in the best interests of the child and would 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; creating a rebuttable presumption in favor of grandparent visitation in certain instances; providing for an in camera interview with a child by the circuit judge; stating the contents of orders granting or refusing a motion or petition for grandparent visitation; and describing the effect of remarriage or adoption on an order granting grandparent visitation.

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 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 are exclusive and under all circumstances the best interests of the child or children involved is the court's first and paramount consideration.
§48-2B-2. Visitation rights for grandparents; definitions.
(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.
(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. 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 circuit 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) A grandparent may file a motion for temporary visitation pending resolution of the proceedings for divorce, custody, legal separation, annulment or establishment of paternity then pending before the court or the family law master. All such proceedings shall be suspended pending resolution of the motion for temporary visitation by the circuit court. The court shall conduct a hearing on the motion within twenty days, and may order reasonable temporary visitation between the child and the grandparent pending the outcome of the proceedings pending before the court or the family law master. The circuit court's order granting or denying the temporary visitation motion shall order the resumption of the proceedings previously suspended.
(c) Where 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 reasonable visitation rights with a child, 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 such action, the grandparent may petition for reasonable visitation if the circumstances have materially changed since the entry of such order or decree.
(d) 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. Factors affecting a decision to grant visitation rights for grandparents.

(a) The circuit court shall grant reasonable visitation rights to a grandparent except upon a finding that visitation rights would not be in the best interests of the child and would substantially 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) Any history of the grandparent condoning physical, emotional or sexual abuse by the child's parent;
(11) The preference of the parents with regard to the requested visitation; and
(12) Any other factor relevant to the best interests of the child.
(c) With regard to any motion or petition made pursuant to this article, there shall be a presumption that visitation is in the child's best interest if the 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.
The presumption may be rebutted by clear and convincing evidence that visitation is not in the best interests of the child and would substantially interfere with the parent-child relationship.
§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, and the 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 such a statement or affidavit.
§48-2B-6. Orders.
The circuit court shall enter an order granting or refusing the grandparent's motion or petition for visitation within ten days after the conclusion of the hearing on such motion or petition. The order shall be in writing and shall state the court's findings of fact and conclusions of law. If the court determines that visitation should be denied, the order shall state with particularity the findings of fact which support the court's conclusion that visitation is not in the best interests of the child and would substantially interfere with the parent- child relationship.
§48-2B-7. 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.


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(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.

Article 2B has been completely rewritten; therefore, strike-throughs and underscoring have been omitted.)