Seeking Unsupervised Grandparent Visitation in West Virginia

Attorney Answer

Before you file anything, understand this: West Virginia's Supreme Court has twice reversed orders granting grandparent visitation, and filing can harden an arrangement that right now is voluntary and improving.

The Grandparent Visitation Act, W. Va. Code § 48-10-101 et seq., is the exclusive means for a grandparent to seek visitation. Because no visitation order exists in your case — the guardian has simply been permitting supervised visits — you would be seeking an initial order under W. Va. Code § 48-10-501 and W. Va. Code § 48-10-502, not a modification of an existing one.

W. Va. Code § 48-10-501 provides: "The circuit court or family court shall grant reasonable visitation to a grandparent upon a finding that visitation would be in the best interests of the child and would not substantially interfere with the parent-child relationship." That is a two-part test. Showing the visits are good for your granddaughter is not enough by itself. W. Va. Code § 48-10-502 lists the factors the court weighs. W. Va. Code § 48-10-702(b) creates a rebuttable presumption against visitation where the child's custodial parent is the grandparent's own child and that parent is able to allow visitation, rebuttable only by clear and convincing evidence — here your son is not the custodian, so that presumption may not apply to you directly.

Both of the leading cases went against the grandparent. In In re Grandparent Visitation of A.P., 231 W. Va. 38, 743 S.E.2d 346 (2013), the Court reversed a grant of grandparent visitation and remanded with directions to deny it, holding the lower courts erred in finding the § 48-10-702(b) presumption rebutted; a fit parent's wishes are entitled to special weight, and a court may not override a fit parent's decision on a best-interests analysis alone. In In re Visitation of Cathy L.(M.) v. Mark Brent R., 217 W. Va. 319, 617 S.E.2d 866 (2005), the Court again reversed a grant and remanded for an order denying visitation, holding the family court failed to give proper weight to the fit adoptive parents' preferences. There is an important limit for you: in both cases the deference ran to a fit parent. A temporary guardian's wishes are a § 48-10-502 factor, but they do not carry that same constitutional weight.

One thing to watch. W. Va. Code § 48-10-902 provides that a grandparent visitation order is automatically vacated on a later adoption, unless the adoptive parent is a stepparent, grandparent, or other relative. A guardianship like this one can convert to an adoption.

What you can do

1. Keep the voluntary arrangement going and do not force the issue while it is expanding on its own. What you have now is more than a court may order. 2. Ask the guardian directly, in writing, for a written schedule — same day, same hours — and propose starting with a short unsupervised block, such as a two-hour outing, rather than a whole day. 3. Keep a dated log of every visit, with photos, and note how your granddaughter responds. That log is your W. Va. Code § 48-10-502 evidence if you ever need it. 4. Address the obvious concern in writing before anyone raises it: state that your son does not live with you and will not be present during visits, and be ready to prove it. 5. Find out the status of the guardianship — which court, which case number, whether it is temporary or headed toward adoption. The clerk can tell you the case status. 6. Find out where the child's mother stands. If a fit parent objects, A.P. and Cathy L.(M.) tell you how much that objection will weigh. 7. If and only if you are cut off or stonewalled, file a petition under W. Va. Code § 48-10-501 asking for specific days, times, and exchange locations — and be prepared to prove both prongs, not just best interests.

Even if you are handling this yourself, you would be best served by a brief phone consultation with a local West Virginia attorney before you act. Most lawyers offer a short initial call at no cost, and a few minutes on your specific facts — and on how your court and judge actually handle this — is worth more than any general guidance, including this page.