Unfortunately, you do not necessarily have a legal right to see your grandchildren, but you have a legal right to petition the court for visitation privileges. This right was granted as of June 13, 1998, when the West Virginia State Legislature significantly expanded grandparents’ visitation rights.
The 1998 statute eliminates preconditions for a grandparent applying for visitation with a grandchild. This means that visitation can be granted even when the parents of the grandchild are not separated or when the grandparent is not related to the custodial parent.
The court considers many different factors and situations when deciding whether to accept the application and grant grandparent visitation. A grandparent can receive ordered visitation if the grandparent has been a significant caretaker of the child, regardless of whether the child lived in the grandparent’s home or not. Further, if the child has lived in the grandparent’s home, it is irrelevant whether the parent or parents lived in the grandparent’s home at the same time as the child.
The court will typically not grant visitation rights to a grandparent when the parent to whom the grandparent is related has not extended those same rights to that grandparent. However, a grandparent may be able to receive visitation if he or she can prove through clear and convincing evidence that the it would be in the best interest of the child and would not substantially interfere with the parent/child relationship. If those two criteria are not met, the court will probably not grant visitation. Courts are generally unwilling to reduce the time a parent has with the child by awarding visitation to a grandparent who has been denied visitation by the parent.
The word “grandparent” can mean a few different things. A grandparent can be a biological parent of the minor child’s parent, or someone who is now or used to be married to the biological parent of the minor child’s parent. Also, anyone who has been awarded custody of a child is considered to be a parent. A child is defined as a person under the age of 18 years who has not been married or otherwise emancipated.
When the Department of Health and Human Resources (DHHR) is given custody of a minor child and is seeking adoptive parents, DHHR must first consider the suitability and willingness of a grandparent to adopt the child. If the Department determines that the grandparents would be suitable adoptive parents, DHHR must offer placement to the grandparents before considering any other prospective adoptive parents.
For more information, see: W. Va. Code §§ 48-10-101 to -802 (2015); W. Va. Code § 49-3-1(a)(3) (2015); In re Nearhoof, 178 W. Va. 359, 359 S.E.2d 587 (1987), In Re Hunter H., 231 W. Va. 118, 744 S.E. 2d 228 (2014).