Grandparents Rights

By Gracie Davis – Deputy Executive Assistant at West Virginia Senior Legal Aid, Inc.

Grandparents often serve as a steady source of support and love in a child’s life. In West Virginia, it is not uncommon for grandparents to help raise their grandchildren, especially during difficult times. Many grandparents provide babysitting, guidance, transportation, financial aid, and even daily caregiving. The bonds that grow from these experiences are impactful and meaningful. Yet when a family experiences divorce, death, or adoption, grandparents can suddenly find themselves shut out of a child’s life. When this happens, many grandparents want to know what legal rights they have to maintain contact with their grandchildren.

The honest answer is that grandparents’ rights in West Virginia are extremely limited. State law allows for the possibility of court-ordered visitation in some situations, but the bar is high. Even when a petition is allowed, the outcome is never guaranteed. Grandparents do not have an automatic legal right to visit or maintain a relationship with their grandchildren. Actually, courts are required to give significant weight to the decisions of a child’s legal parents, especially when those parents are deemed fit and capable. This is because both West Virginia courts and the United States Supreme Court recognize a fundamental constitutional right of parents to raise their children as they see fit, which includes the right to decide who may or may not spend time with the child.

Under the West Virginia Grandparent Visitation Act, a grandparent may petition a family court for visitation with a grandchild, but only under certain conditions. The law does not give grandparents standing to file a petition in all cases. A grandparent may request visitation if the parents are divorced, separated, or never married. Visitation may also be requested if one or both of the parents are deceased or if the child does not live with either parent. However, even when one of these conditions is met, the court will not automatically grant the request. The grandparent must prove that visitation is in the best interest of the child and that it will not interfere with the parent-child relationship.

The law outlines several factors that courts may consider when making this decision. These include the existing relationship between the grandparent and grandchild, the length and strength of that relationship, the amount of contact the grandparent has had with the child, the role the grandparent has played in the child’s life, the preferences of the child if the child is old enough to express a mature opinion, and the mental health and physical health of everyone involved. Importantly, the court is required to give “special weight” to the wishes of the child’s parent(s). That means that, if a fit parent objects to grandparent visitation, the court will only override that objection in rare circumstances where the grandparent can show that visitation is not only beneficial but necessary to the child’s well-being.

Furthermore, if a child is adopted by someone outside the family (e.g., a non-relative), the grandparent’s legal rights to visitation are usually terminated. This is true even if the grandparent had a close relationship with the child before the adoption. The only exception is if the child is adopted by a stepparent or another close relative. In those cases, the grandparent may still petition for visitation, but again, the court will weigh the request carefully and defer to the decisions of the child’s new legal parents unless there is compelling evidence to the contrary.

In certain cases, grandparents may be able to seek custody or guardianship of a grandchild. However, these cases are even more complex and difficult to win. A court will only consider removing a child from their legal parents if there is evidence of abuse, neglect, abandonment, or other serious harm. A grandparent seeking custody must prove not only that the parents are unfit but also that living with the grandparent would be in the child’s best interests. This often requires the involvement of Child Protective Services, home studies, and formal court proceedings. Even if a grandparent has been informally caring for a child, that does not give them an automatic right to custody under the law.

The reality is that West Virginia, like many other states, places a high value on parental autonomy. Courts are cautious about intervening in family decisions unless there is a clear and serious need to do so. While the law recognizes the importance of the grandparent-grandchild relationship, it also upholds the rights of parents to decide how and with whom their children spend their time. This legal structure means that many grandparents who are deeply committed to their grandchildren may find themselves without a legal remedy when contact is cut off.

This can be incredibly painful, especially for seniors who have devoted time, love, and care to their grandchildren. Many feel that they are being punished or pushed aside without cause. Others worry that their grandchildren are suffering emotionally without the support and stability that a grandparent can provide. These concerns are very real, and while the law is limited, there may still be ways to move forward. In some cases, family counseling, mediation, or other non-legal approaches may help repair strained relationships and open the door to renewed contact. In others, a carefully prepared visitation petition might be appropriate, especially if the grandparent can show that their relationship with the child has been long-standing and positive.

If you are a senior in West Virginia struggling with the loss of contact with your grandchild, you are not alone. While the legal road may be narrow, it is still important to be informed and prepared. Even if a court action is not possible, there may be other steps you can take to preserve your connection or begin to rebuild it. West Virginia Senior Legal Aid may be able to help you understand your rights and guide you through your options. West Virginia Senior Legal Aid is dedicated to defending seniors’ rights.