Introduced Version
Senate Bill 329 History
| Email
Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 329
(By Senators Laird, Miller, Unger, Snyder, Fitzsimmons, Beach,
Barnes, Stollings and Nohe)
____________
[Introduced February 20, 2013; referred to the Committee on the
Judiciary .]
____________
A BILL to amend and reenact §48-9-103 of the Code of West Virginia,
1931, as amended; and to amend and reenact §48-10-403 and §48-
10-502 of said code, all relating to grandparent's rights;
permitting the grandparent or psychological parent to
institute an action for custodial or decision-making
responsibility of a child; allowing a guardian ad litem to
recommend a psychological evaluation; increasing the
importance of the factor considering the grandparent's
significant caretaking of the child; and minimizing a parent's
bias toward a grandparent as a factor.
Be it enacted by the Legislature of West Virginia:
That §48-9-103 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §48-10-403 and §48-10-502 of said code be amended and reenacted, all to read as follows:
ARTICLE 9. ALLOCATION OF CUSTODIAL RESPONSIBILITY AND DECISION-
MAKING RESPONSIBILITY OF CHILDREN.
§48-9-103. Parties to an action under this article.
(a) Persons who have a right to be notified of and participate
as a party in an action filed by another are:
(1) A legal parent of the child, as defined in section 1-232
of this chapter;
(2) An adult or guardian allocated custodial responsibility or
decision-making responsibility under a parenting plan regarding the
child that is then in effect; or
(3) Persons who were parties to a prior order establishing
custody and visitation, or who, under a parenting plan, were
allocated custodial responsibility or decision-making
responsibility; or
__________(4) In exceptional cases, a grandparent or psychological
parent seeking an allocation of custodial responsibility or
decision-making authority.
(b) In exceptional cases the court may, in its discretion,
grant permission to intervene to other persons or public agencies
whose participation in the proceedings under this article it
determines is likely to serve the child's best interests. The
court may place limitations on participation by the intervening party as the court determines to be appropriate. Such persons or
public agencies do not have standing to initiate an action under
this article.
ARTICLE 10. GRANDPARENT VISITATION.
§48-10-403. Appointment of guardian ad litem for the child.
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
to assist the court in determining the best interests of the child
regarding grandparent visitation. A guardian ad litem may recommend
psychological evaluations.
§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;
(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.
When the grandparent has been a significant or primary caretaker of
the child for over one year, greater importance shall be placed on
this factor in the determination of the court;
(12) The preference of the parents with regard to the
requested visitation, unless it is clear that the parent is biased
against the grandparent having visits with the child; and
(13) Any other factor relevant to the best interests of the
child.
NOTE: The purpose of this bill is to increase grandparents'
rights in matters of custodial or decision-making authority and
visitation.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.