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.