Grandparent Visitation Petition - West Virginia

PETITION FOR GRANDPARENT VISITATION

(West Virginia — W. Va. Code §§ 48-10-101 et seq.)

I. PARTIES

1.1 Petitioner(s) — Grandparent(s)

Co-Petitioner (spouse / other grandparent), if applicable:

1.2 Respondent(s) — Parent(s) / Person with Custody

1.3 The Minor Child

II. JURISDICTION AND VENUE

2.1 Subject-matter jurisdiction. This Court has jurisdiction over this Petition under W. Va. Code § 48-10-301, which authorizes a grandparent of a child residing in this State to apply, by motion or petition, to the circuit court or family court of the county in which the child resides for an order granting grandparent visitation.

2.2 UCCJEA home state. West Virginia has jurisdiction to make a child-custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act, W. Va. Code §§ 48-20-101 et seq., because:

☐ West Virginia is the child's home state — the child has lived in West Virginia with a parent or person acting as a parent for at least six (6) consecutive months immediately before the filing of this Petition; or

☐ West Virginia was the child's home state within six (6) months before filing and a parent or person acting as a parent continues to live in this State; or

☐ Other basis: [____________]

2.3 Venue. Venue is proper in [COUNTY] County under W. Va. Code § 48-10-301 because the minor child resides in this county.

2.4 Procedural posture (determines burden of proof).

☐ § 48-10-401 / § 48-10-701 — Action pending. An action for divorce, custody, legal separation, annulment, or establishment of paternity concerning the child is pending. Court: [____________]; Case No.: [____________]. (This application is filed as a motion in that action.)

☐ § 48-10-402 / § 48-10-702 — No action pending. No such action is pending, and this is filed as an original petition.

2.5 Other proceedings.

☐ There are no other pending or prior proceedings concerning the custody or visitation of the minor child.

☐ There are other proceedings — Court: [____________]; Case No.: [____________]; Nature: [____________].

III. STANDING AND CIRCUMSTANCES — § 48-10-301

3.1 Petitioner is a grandparent of the minor child within the meaning of W. Va. Code § 48-10-203, and the child resides in West Virginia. Petitioner has standing to apply for grandparent visitation under W. Va. Code § 48-10-301.

3.2 The circumstances giving rise to this application are (check all that apply):

☐ Visitation has been refused or unreasonably restricted by Respondent(s).

☐ The parent through whom Petitioner is related to the child is deceased.

☐ The parents are divorced, separated, or were never married.

☐ An action for divorce, custody, legal separation, annulment, or paternity is pending (see § 2.4).

☐ Other: [____________]

3.3 Supporting facts:

[____________________________________________________________]

IV. FACTUAL ALLEGATIONS

4.1 History of the relationship. Petitioner has had a significant relationship with the minor child, as follows:

[____________________________________________________________]

4.2 Denial or restriction of contact. Visitation has been denied or unreasonably restricted, as follows:

[____________________________________________________________]

4.3 Effect on the child. Continued visitation with Petitioner serves the child's best interest and would not substantially interfere with the parent-child relationship because:

[____________________________________________________________]

V. CONSTITUTIONAL AND STATUTORY STANDARD

5.1 Special weight to a fit parent's decision (Troxel). Petitioner acknowledges that parents have a fundamental constitutional right to make decisions concerning the care, custody, and control of their children, and that a fit parent's decision regarding visitation is entitled to special weight. Troxel v. Granville, 530 U.S. 57 (2000).

5.2 Necessary findings — § 48-10-501. The Court shall grant reasonable visitation to a grandparent only upon a finding that visitation (a) would be in the best interests of the child AND (b) would not substantially interfere with the parent-child relationship.

5.3 Burden of proof — §§ 48-10-701 and 48-10-702. Petitioner acknowledges the applicable burden depends on the procedural posture:

☐ (Action pending — § 48-10-701): Petitioner must prove that the requested visitation is in the best interest of the child, subject to the statutory presumptions.

☐ (No action pending; parent through whom Petitioner is related has custody/shared custody/visitation — § 48-10-702(b)): There is a presumption that visitation privileges need not be extended; Petitioner must rebut that presumption by CLEAR AND CONVINCING EVIDENCE that an award of grandparent visitation is in the best interest of the child.

☐ (No action pending; that parent does NOT have custody/shared custody/visitation — § 48-10-702(a)): Petitioner must show by a preponderance of the evidence that visitation is in the best interest of the child.

5.4 Best interest is paramount — § 48-10-101. The Legislature has declared that the best interests of the child are the paramount consideration in grandparent visitation matters.

VI. BEST-INTEREST FACTORS — § 48-10-502

6.1 In determining whether to grant grandparent visitation, the Court shall consider the following factors. Petitioner alleges:

☐ (1) The age of the child: [____________]

☐ (2) The relationship between the child and the grandparent: [____________]

☐ (3) The relationship between each of the child's parents (or the person with whom the child is residing) and the grandparent: [____________]

☐ (4) The time which has elapsed since the child last had contact with the grandparent: [____________]

☐ (5) The effect that such visitation will have on the relationship between the child and the child's parents (or the person with whom the child resides): [____________]

☐ (6) If the parents are divorced or separated, the custody and visitation arrangement that exists between the parents: [____________]

☐ (7) The time available to the child and his or her parents, giving consideration to each parent's employment schedule, the child's home/school/community activities, and holiday and vacation schedules: [____________]

☐ (8) The good faith of the grandparent in filing the motion or petition: [____________]

☐ (9) Any history of physical, emotional, or sexual abuse or neglect performed, procured, assisted, or condoned by the grandparent: [____________]

☐ (10) Whether the child has, in the past, resided with the grandparent for a significant period or periods, with or without the child's parent(s): [____________]

☐ (11) Whether the grandparent has, in the past, been a significant caretaker for the child: [____________]

☐ (12) The preference of the parents regarding the requested visitation: [____________]

☐ (13) Any other factor relevant to the best interests of the child: [____________]

VII. PROPOSED VISITATION SCHEDULE

7.1 Regular visitation. Petitioner requests:

☐ Weekly: [____________] ☐ Monthly: [____________] ☐ Other: [____________]

7.2 Holidays and special occasions.

7.3 Transportation / exchange. [____________]

7.4 Communication. Telephone/video contact: [____________]

VIII. PRAYER FOR RELIEF

WHEREFORE, Petitioner respectfully requests that this Court:

A. Find that Petitioner has standing under W. Va. Code § 48-10-301;

B. Appoint a guardian ad litem for the minor child pursuant to W. Va. Code § 48-10-403;

C. Find, under the applicable standard (§ 48-10-701 or § 48-10-702), that visitation is in the best interest of the child and would not substantially interfere with the parent-child relationship (§ 48-10-501), considering the factors in § 48-10-502;

D. Enter an order awarding Petitioner reasonable visitation with the minor child pursuant to the schedule in Section VII, or as the Court deems just;

E. State its findings of fact and conclusions of law as required by W. Va. Code § 48-10-801;

F. Award attorney's fees and reasonable costs as authorized by W. Va. Code § 48-10-1101; and

G. Grant such other and further relief as the Court deems just and proper.

IX. VERIFICATION

STATE OF WEST VIRGINIA )
COUNTY OF [____________] )

I, [PETITIONER NAME], being first duly sworn, state that I am the Petitioner in this action; that I have read the foregoing Petition; and that the facts stated therein are true and correct to the best of my knowledge, information, and belief.

_________________________________
[PETITIONER NAME], Petitioner

Taken, subscribed, and sworn to before me this ___ day of __________, 20___.

_________________________________
Notary Public
My Commission Expires: ___________

X. SIGNATURE

Respectfully submitted this ___ day of __________, 20___.

_________________________________
[PETITIONER NAME], Pro Se
OR
_________________________________
[ATTORNEY NAME], WV State Bar No. [____________]
[FIRM NAME]
[ADDRESS] | [PHONE] | [EMAIL]
Attorney for Petitioner

XI. NOTICE TO RESPONDENT

TO THE RESPONDENT(S): A Petition for Grandparent Visitation has been filed concerning your child. You are required to file a written response with the Clerk of this Court within the time allowed by the West Virginia Rules of Practice and Procedure for Family Court (or the Rules of Civil Procedure, as applicable) and to serve a copy on Petitioner or Petitioner's attorney. If you fail to respond, the Court may grant the relief requested in this Petition. You have the right to be represented by an attorney.

XII. CERTIFICATE OF SERVICE

I certify that on [__/__/____] a true and correct copy of the foregoing Petition (and accompanying UCCJEA affidavit) was served upon each Respondent by ☐ personal service ☐ certified mail ☐ service of process server ☐ other [____________], at the address(es) listed above.

_________________________________
[PETITIONER / ATTORNEY SIGNATURE]

SOURCES & REFERENCES

• W. Va. Code §§ 48-10-101 to 48-10-1201 — Grandparent Visitation Act: legislative findings/best interest paramount (§ 48-10-101); definitions (§§ 48-10-201 to 48-10-203); persons who may apply and venue (§ 48-10-301); pending-action motion / no-action petition (§§ 48-10-401, 48-10-402); guardian ad litem (§ 48-10-403); necessary findings (§ 48-10-501); best-interest factors (§ 48-10-502); proof required (§§ 48-10-701, 48-10-702); findings of fact and conclusions of law (§ 48-10-801); orders and conditions/supervision (§§ 48-10-802, 48-10-803); effect of adoption (§ 48-10-902); attorney's fees and costs (§ 48-10-1101).
• W. Va. Code § 48-10-501 — court shall grant reasonable visitation upon finding visitation is in the best interests of the child AND would not substantially interfere with the parent-child relationship.
• W. Va. Code § 48-10-702(b) — rebuttable presumption (when the related parent has custody/visitation) overcome only by clear and convincing evidence that grandparent visitation is in the best interest of the child; § 48-10-702(a) — preponderance standard otherwise.
• Troxel v. Granville, 530 U.S. 57 (2000) — fit parent's decision entitled to special weight.
• In re Hunter H., 231 W. Va. 118, 744 S.E.2d 228 (2013); State ex rel. Brandon L. v. Moats, 209 W. Va. 752, 551 S.E.2d 674 (2001) — best interest of the child is the paramount/polar-star consideration in grandparent visitation.
• W. Va. Code §§ 48-20-101 et seq. — UCCJEA; § 48-20-209 (affidavit).

This Petition is a preparation aid only. West Virginia grandparent visitation turns on the child's best interest (the paramount consideration) and on not substantially interfering with the parent-child relationship, with the burden (preponderance vs. clear and convincing) keyed to the procedural posture under §§ 48-10-701 and 48-10-702, all subject to the special weight Troxel v. Granville gives a fit parent's decision. Consult a licensed West Virginia family law attorney before filing.