Submitted by Deb Miller, JD, WV Senior Legal Aid volunteer
When a married couple with young children decides to divorce, do grandparents have any legal rights to see their grandchildren?
The Grandparent Visitation Act, at West Virginia Code sec. 48–10-501, et seq., controls this type of situation.
Under the law, reasonable visitation with the grandchild can be ordered 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.
As many have learned from personal experience, it is important for the grandparents to cooperate with the parents to work out the best plan for visitation.
A power struggle is not likely to work out in the grandparents’ favor.
Agreeing to visitation before the divorce is final is the least complex route.
When informal efforts for visitation don’t work, a grandparent can seek court–ordered visitation.
Under the Grandparent Visitation Act, the primary focus for the court will 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 will 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 related to the grandparent has not permitted previous visitation.
Even if the parents are not separated, a grandparent can apply for court-ordered visitation.
In recent years, the concept of visitation by a “psychological parent” has been considered by courts in West Virginia. Often, this involves someone who is not a grandparent or family member.
When such an individual 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, they may qualify as a psychological parent who can be given visitation rights.
Visitation and the after-effects of a divorce can become highly inflammatory, as happened in the 2012 murder of a parent by her former father-in-law in a store parking lot in Morgantown. The victim had arrived to pick up her daughter for an overnight stay when she was killed.
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.