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Grandparent Visitation

By Deb Miller - West Virginia Senior Legal Aid Contributor

Eleanor cringed every time there was another blow-up between her son and daughter-in-law.  It was painful to watch. They were arguing almost non-stop over money, the kids, the car, everything. Their divorce was coming.

She was especially concerned about her three young grandchildren. What was going to happen to them? Would Eleanor still be able to see them as much as she did now? Bake cookies with them? Have picnics?

A friend from church told her that the Grandparent Visitation Act controls this type of situation. On the Internet, she looked A friend from church told her that the Grandparent Visitation Act controls this type of situation. On the Internet, she looked it up at W.Va. Code sec. 48-10-101, et. seq.

Eleanor read that reasonable visitation with a grandchild can be ordered by a circuit court or family court judge when two conditions are met: (1) it is in the best interest of the child, and (2) visitation would not substantially interfere with the parent-child relationship.

A number of her friends also mentioned that it would be smarter and faster for the grandparents to cooperate with the parents to work out the best plan for visitation. A power struggle with her daughter-in-law or her family was not likely to work out in Eleanor’s favor.

Agreeing to visitation before the divorce becomes final would be the least complex route. This gave her a lot to think about.

If informal efforts between family members for visitation didn’t work, Eleanor could seek court-ordered visitation. She knew that would be costly, stir up bad feelings, could hurt the grandkids, and likely take a long time.

Under the Grandparent Visitation Act, the primary focus for the court would be to evaluate and give priority to the parents’ preferences for their child along with considering the best interests of the child.

Based on rights contained in the U.S. Constitution, the court would respect the choices of fit parents to make decisions regarding the care, custody, and control of their children.

Generally, visitation will not be granted by a court when the child’s parent has not permitted previous visitation by the grandparent.

Even if parents are not married, separated, or having problems, a grandparent can apply for court-ordered visitation when appropriate. 

In recent years, the concept of visitation by a “psychological parent,” someone who is not a grandparent or family member, has been considered by courts in West Virginia.

When such a person has played a substantial role in the daily life of the child with the consent and encouragement of the child’s legal parent or guardian, that person may qualify as a psychological parent who can be given visitation rights by the circuit court or family court.

Visitation disagreements and the after-effects of a divorce can become highly inflammatory. Eleanor was hoping to avoid that for everyone’s sake. She was thinking of the long-term toll it would have on her son and grandkids.

Visitation rights and other legal issues faced by West Virginia residents, ages 60 and over, can be discussed by calling 800–229–5068, the West Virginia Senior Legal Aid hotline. A staff attorney will provide assistance at no charge.

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