H. B. 4465


(By Delegates Lawrence, Doyle, T. Walker,

Shaver, Phillips and Perdue)

[Introduced February 12, 2010 ; referred to the

Committee on the Judiciary.]




A BILL to amend and reenact §48-10-202, §48-10-203, §48-10-301, §48-10-401, §48-10-402, §48-10-403, §48-10-501, §48-10-502, §48-10-602, §48-10-701, §48-10-702, §48-10-802, §48-10-901, §48-10-902, §48-10-1001 and §48-10-1201 of the Code of West Virginia, 1931 as amended, all relating to the definition of child for grandparent visitation purposes and amending it to include disabled adult children; and changing the term child to grandchild.

Be it enacted by the Legislature of West Virginia:

That §48-10-202, §48-10-203, §48-10-301, §48-10-401, §48-10- 402, §48-10-403, §48-10-501, §48-10-502, §48-10-602, §48-10-701, §48-10-702, §48-10-802, §48-10-901, §48-10-902, §48-10-1001 and §48-10-1201 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 10. GRANDPARENT VISITATION.

§48-10-202. Child Grandchild defined.

"Child" "Grandchild" means a person under the age of eighteen years who has not been married or otherwise emancipated or a child that has reached the age of majority, but is unable to perform the activities of daily living necessary to sustain life and reasonable health due to a mental, physical or emotional disability.

§48-10-203. Grandparent defined.

"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 grandchild with whom visitation is sought.

§48-10-301. Persons who may apply for grandparent visitation; venue.

A grandparent of a child grandchild residing in this state may, by motion or petition, make application to the circuit court or family court of the county in which that child grandchild resides for an order granting visitation with his or her grandchild.
§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 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.
(c) Motions or petitions for grandparent visitation shall be filed and heard in the family court except when an abuse or neglect proceeding involving the child or children grandchild or grandchildren is pending before the circuit court, in which case the motion or petition shall be filed and heard in the circuit court.
§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 family court for an order granting visitation with his or her grandchild, regardless of whether the parents of the child grandchild 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)]".
(d) Motions or petitions for grandparent visitation shall be filed and heard in the family court except when an abuse or neglect proceeding involving the child or children grandchild or grandchildren is pending before the circuit court, in which case the motion or petition shall be filed and heard in the circuit court.
§48-10-403. Appointment of guardian ad litem for the child grandchild.

When a motion or petition is filed seeking grandparent visitation, the court, on its own motion or upon the motion of a party or grandparent, may appoint a guardian ad litem for the child grandchild to assist the court in determining the best interests of the child grandchild regarding grandparent visitation.
§48-10-501. Necessary findings for grant of reasonable visitation to a grandparent.

The circuit court or family court shall grant reasonable visitation to a grandparent upon a finding that visitation would be in the best interests of the child grandchild 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 court shall consider the following factors:
(1) The age of the child grandchild;
(2) The relationship between the child grandchild and the grandparent;
(3) The relationship between each of the child's grandchild's parents or the person with whom the child grandchild is residing and the grandparent;
(4) The time which has elapsed since the child grandchild last had contact with the grandparent;
(5) The effect that such the visitation will have on the relationship between the child grandchild and the child's grandchild's parents or the person with whom the child grandchild 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 grandchild;
(7) The time available to the child grandchild and his or her parents, giving consideration to such matters as each parent's employment schedule, the child's grandchild's schedule for home, school and community activities, and the child's grandchild'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 grandchild has, in the past, resided with the grandparent for a significant period or periods of time, with or without the child's grandchild's parent or parents;
(11) Whether the grandparent has, in the past, been a significant caretaker for the child grandchild, regardless of whether the child grandchild 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 grandchild.
§48-10-602. Prohibitions on use of child's grandchild's written or recorded statement or affidavit; child grandchild not to be called as a witness.

(a) No person shall may obtain or attempt to obtain from a child grandchild a written or recorded statement or affidavit setting forth the wishes and concerns of the child grandchild regarding grandparent visitation matters, and the court, in considering the factors listed in section 10-502 five hundred two 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 may not accept or consider such a written or recorded statement or affidavit.
(b) A child shall grandchild may not be called as a witness in any proceeding to determine whether grandparent visitation should be awarded.
PART 7. PROOF REQUIRED FOR GRANT

OF GRANDPARENT VISITATION.

§48-10-701. Proof required when action is pending for divorce, custody, legal separation, annulment or establishment of paternity.

If a motion for grandparent visitation is filed in a pending action for divorce, custody, legal separation, annulment or establishment of paternity, pursuant to section 21-401 the grandparent shall be granted visitation if a preponderance of the evidence shows that visitation is in the best interest of the child grandchild and that:
(1) The party to the divorce through which the grandparent is related to the minor child grandchild 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 grandchild are unknown to the party bringing the action and to the grandparent who filed the motion for visitation.
§48-10-702. Proof required when action is not pending for divorce, custody, legal separation, annulment or establishment of paternity.

(a) If a petition is filed pursuant to section 10-402 four hundred two of this article when the parent through whom the grandparent is related to the grandchild does not: (1) Have custody of the child grandchild; (2) share custody of the child grandchild; or (3) exercise visitation privileges with the child grandchild 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 grandchild.
(b) If a petition is filed pursuant to section 10-402 four hundred two 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 grandchild, shares custody of the child grandchild, or exercises visitation privileges with the child grandchild 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 grandchild.
§48-10-802. Supervised visitation; conditions on visitation.
In the 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 grandchild, including, but not limited to, the following:
(1) That the grandparent not attempt to influence any religious beliefs or practices of the children grandchild in a manner contrary to the preferences of the child's grandchild'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 grandchild'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 grandchild's parents.
§48-10-901. Effect of remarriage of the custodial parent.
The remarriage of the custodial parent of a child grandchild does not affect the authority of a circuit court or family court to grant reasonable visitation to any grandparent.
§48-10-902. Effect of adoption of the child grandchild.
If a child grandchild who is subject to a grandparent 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 grandchild.
§48-10-1001. Continuing jurisdiction of circuit court or family court.

Any circuit court or family court that grants visitation rights to a grandparent shall retain jurisdiction throughout the minority of the minor child grandchild with whom visitation is granted to modify or terminate such rights as dictated by the best interests of the minor child grandchild.
PART 12. OFFENSES.

§48-10-1201. Misdemeanor offense for allowing contact between child grandchild and person who has been precluded visitation rights; penalties.

Any grandparent who knowingly allows contact between a minor grandchild and a parent or other person who has been precluded visitation rights with the child grandchild by court order is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail not more than thirty days or fined not less than $100 nor more than $1000.


NOTE: The purpose of this bill is to change the definition of child for grandparent visitation purposes by changing it to grandchild and expanding that definition to include certain adult children.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.