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)
[Passed March 13, 1998; in effect ninety days from passage.]
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.
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
(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
(8) The good faith of the grandparent in filing the motion
(9) Any history of physical, emotional or sexual abuse or
neglect being performed, procured, assisted or condoned by the
(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
§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
§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.
(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,
(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
§48-2B-9. Effect of remarriage or adoption on visitation for
(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
(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
(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