Do Grandparents Have Visitation Rights in West Virginia?

An overview of grandparent visitation laws in West Virginia.

By , Attorney · Brigham Young University J. Reuben Clark Law School
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In some families, grandparents hold a special place in their grandchildren's hearts. However, a grandparent's right to spend time with the grandkids usually won't supersede the parents' rights to raise their children as they see fit, which includes making decisions about who spends time with their children.

Many grandparents struggle to get visitation when a child's parents separate or divorce. In certain, limited cases, grandparents may have legal recourse to seek visitation rights or even custody of their grandchildren.

Some states are more permissive in awarding grandparent visitation, while others are more restrictive. This article provides an overview of grandparent visitation rights in West Virginia.

Overview of Grandparent Visitation Laws

The Constitution protects parents' rights to raise their own children and make decisions on their behalf. Grandparents don't enjoy those same Constitutional protections. Generally, a grandparent's right to visit with a grandchild is secondary to a parent's rights. Only in limited circumstances can a grandparent get a court to intervene and grant visitation with a grandchild.

No federal law regarding grandparent visitation exists. Instead, each state has devised its own set of laws governing grandparent's rights. However, the U.S. Supreme Court's landmark case Troxel v. Granville provided a framework for grandparent rights throughout the country. Troxel upheld the constitutionality of a Washington statute allowing broad grandparent visitation privileges. Nevertheless, in Troxel the Supreme Court stated that a parent's wishes should always be considered when it comes to grandparent visitation. Moreover, grandparent visitation will only be awarded if it serves a child's best interests.

Grandparent Visitation in West Virginia

West Virginia laws follow the standard set in Troxel. Grandparent visitation will be awarded only if it helps meet a child's physical and emotional needs The following factors are relevant to grandparent visitation in West Virginia:

  • the child's age
  • the child's relationship with the grandparent
  • the parents' relationship with the grandparent seeking visitation
  • the amount of time since the child's last contact with the grandparent
  • the effect of grandparent visitation on the parent-child relationship
  • the custody and/or visitation arrangement between the parents and child
  • the time available for grandparent visitation taking into account the child's school schedule, the parents' employment, the child's holiday schedule and the child's involvement in community activities
  • the grandparent's good faith in filing the visitation request
  • any history of physical, emotional, sexual abuse being performed, assisted or condoned by the grandparent
  • whether the child has resided with the grandparent for a significant amount of time
  • whether the grandparent has been a significant caretaker for the child
  • the parents' preference for visitation, and
  • any other factor the court deems relevant.

In one West Virginia case, paternal grandparents were denied visitation rights with their grandchild. The child's father wasn't awarded any visitation because of his history of domestic violence. Because of the father's violence toward the children, the children's mother refused to allow visitation with the children's grandparents. The court held that the mother's decision to deny grandparent visitation was reasonable and was based on legitimate concerns for the children's welfare. However, the case was sent back to the lower court to evaluate whether grandparent visitation should occur based on all the above factors.

When Can a Grandparent Obtain Custody of a Grandchild?

A grandparent's rights are always secondary to a parent's. Parents have the natural right to rear and raise their own children, unless the following circumstances are present:

  • the parent is unfit because of misconduct, neglect, abandonment or other failure to meet his or her basic parental obligations
  • the parent has voluntarily transferred or relinquished parental rights, or
  • the parent's parental rights have been terminated.

A grandparent can't receive custody of a grandchild if it's against a fit and stable parent's wishes. In one West Virginia case, a father was awarded custody of his child as part of the divorce. However, the child lived in the full-time care of his grandparents, not the father, for the next several years. The child's mother subsequently filed for custody and was deemed a fit and proper parent. The court held that the child's grandparents couldn't retain custody because the child's mother wanted custody and demonstrated that she would be able to meet the child's best interests.

Can a Biological Grandparent Obtain Visitation with a Grandchild that Was Placed for Adoption?

Adoption typically severs all custody and visitation rights for both parents and grandparents. A biological grandparent of a child that was placed for adoption would have no standing to request visitation, unless the child was adopted by a relative.

In one West Virginia case, a grandchild was adopted by his maternal grandparents after the child's father died and the child's mother could no longer care for him. The child's paternal grandparents subsequently filed a request for visitation and won. During his early years, the child had a strong relationship with his paternal grandparents who lived nearby. Following the adoption, the child's maternal grandparents completely prevented visitation between the child and his paternal grandparents. The paternal grandparents' request for visitation was granted because the court found that the grandparents were fit to care for the child and visitation served the child's best interests.

Grandparents can play an important role in their grandchildren's lives, providing support and stability. When parents divorce or separate, the relationships with in-laws can become strained. Children are often caught in the middle. However, a grandparent who wants to maintain a relationship with a grandchild may have legal recourse, even when the child's parent is trying to prevent visitation. A child's best interests are paramount in any visitation or custody decision. If you have additional questions about grandparent visitation or custody rights in West Virginia, contact a local family law attorney for advice.

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