Gary L. Rymer, Esq. Pamela Kay R.
Middlebourne, West Virginia Pro Se
Attorney for Appellant
The Opinion of the Court was delivered PER CURIAM
JUDGE RECHT sitting by temporary assignment.
1. "A trial court, in considering a petition of a grandparent for visitation rights with
a grandchild or grandchildren pursuant to W.Va.Code, 48-2-15(b)(1)  or W.Va.Code,
48-2B-1 , shall give paramount consideration to the best interests of the grandchild or
grandchildren involved ." Syl. Pt. 1,
Petition of Nearhoof, 178 W. Va. 359, 359 S.E.2d 587
2. "A court, in defining a parent's right to visitation, is charged with giving
paramount consideration to the welfare of the child involved
." Syl. Pt. 1, Ledsome v.
Ledsome, 171 W.Va. 602, 301 S.E.2d 475 (1983).
This is an appealSee footnote 1 by Mary Jean H. (hereinafter "the Appellant") from a February 28,
1995, order of the Circuit Court of Ohio County which failed to grant the Appellant
visitation privileges to her granddaughter, Ashley R. The Appellant asserts that West
Virginia Code § 48-2B-5 (1995) mandates such visitation and that the lower court erred in
failing to provide visitation to the Appellant. We remand this matter to the lower court for
the presentation of evidence on the issue of the Appellant's rights to visitation.
Ashley R. was born on December 9, 1991. Ashley's mother, Appellee Pamela R.,
resided with her mother, the Appellant, at the time of Ashley's birth. Although the Appellee
continued to reside with the Appellant for only approximately five months after Ashley's
birth, Ashley remained in the care and custody of the Appellant from her birth until July
1994. The struggle for custody of this child began in April 1992 when the Appellant
grandmother filed a petition for custody alleging that the Appellee mother of the child was unable to care for the various health problems suffered by the child. The lower court initially
granted temporary custody to the Appellant grandmother with the caveat that the Appellee
would reassume full custody upon completion of training in the skills necessary to
successfully deal with the child's medical problems.
Subsequent to the temporary placement of the child with her grandmother in April
1992, the Appellee mother began parenting classes at the Florence Crittendon Center in
Wheeling, West Virginia. The record then reflects several incidents of conflict and dispute
between the Appellant and the Appellee. In a July 20, 1993, letter to the lower court, for
example, the Florence Crittendon Center reported harassment by the Appellant toward the
Appellee and recommended that custody be returned to the mother as soon as possible. The
lower court was also provided with evidence of a health department investigation of the
condition of the Appellant's home. The report indicated that ducks were permitted to live
in the home and that there was animal excrement in the home. The Appellant was apparently
ordered to remove garbage from the yard and to remove a pile of dog feces from under the
By order dated July 1, 1994, the Appellee mother regained full custody of Ashley, and
no visitation was provided to the Appellant grandmother. On July 19, 1994, the Appellant
filed a petition for visitation pursuant to the Grandparent Visitation Act, West Virginia Code
§ 48-2B-5. A hearing on the Appellant's petition was held on August 19, 1994, but no ruling was made on the petition by January 1995. By order dated February 10, 1995, the lower
court enumerated a visitation schedule agreed upon by the parties consisting of visitation
with the Appellant on the first Saturday of each month for twenty-four hours and two
Wednesday evenings each month.See footnote 2 In its February 10, 1995, order, the court also stated that
it would "take the arguments of counsel under advisement concerning the permanence of said
visitation order as well as delineation of any procedures to dissolve the same . . . ." On
February 28, 1995, the lower court entered another order terminating the visitation schedule
previously agreed upon, noting that the Appellee and her husband were moving to South
Carolina with Ashley, and failed to grant any visitation rights to the Appellant.
The Grandparent Visitation Act, West Virginia Code § 48-2B-5 provides, in pertinent
part, as follows:
(a) Notwithstanding any provision of this code to the contrary, a grandparent may petition the circuit court of the county in which he or she resides for an order granting said grandparent reasonable visitation rights where:
(1) Said minor grandchild has resided without significant interruption with
the grandparent with the parents residing elsewhere for a period of six consecutive
months or more within the past two years;
(2) The minor grandchild is subsequently removed from the home by
a parent or parents; and
(3) The removing parent or parents have refused to allow the petitioning
grandparent visitation with the minor child who formerly resided in the
(b) If the circuit court determines that the requirements set forth in
subsection (a) of this section have been shown, it shall grant such reasonable
visitation rights to the petitioning grandparent as may be consistent with the
minor child's best interests.
We had occasion to review the Grandparent Visitation Act in Petition of Nearhoof,
178 W. Va. 359, 359 S.E.2d 587 (1987). In syllabus point one of that opinion, we explained
that "[a] trial court, in considering a petition of a grandparent for visitation rights with a
grandchild or grandchildren pursuant to W.Va.Code, 48-2-15(b)(1)  or W.Va.Code,
48-2B-1 , shall give paramount consideration to the best interests of the grandchild or
grandchildren involved ." See also Elaine D. Ingulli, "Grandparent Visitation Rights: Social
Policies and Legal Rights," 87 W.Va.L.Rev. 295 (1984-85). This recognition is founded
upon the general guiding principle that "[a] court, in defining a parent's right to visitation,
is charged with giving paramount consideration to the welfare of the child involved.
Pt. 1, Ledsome v. Ledsome, 171 W.Va. 602, 301 S.E.2d 475 (1983)
. See Blake v. Blake,
172 W.Va. 690, 692, 310 S.E.2d 207, 210 (1983).
Thus, while the statute affords certain protections to the grandparent, it is in no
measure a guarantee of the right to visitation. The best interests of the child must be given greatest priority, and the rights of the child are superior to those of the grandparent seeking
visitation. In a case of this nature, the lower court must make a specific determination that
the requirements of subsection (a) of the statute have been met, i.e., whether the grandparent
even meets the criteria necessary to invoke the protections of the statute.See footnote 3 Next, the lower
court must proceed to an examination of whether visitation would be in the best interests of
In the present case, the analysis concerning the best interests of the child would
necessarily include an evaluation of the health department investigation into the condition
of the Appellant's home and would also require consideration of the logistical problems that
must be overcome due to the geographical distance between the parties. Consideration must
be given to the distance to be traveled if visitation is ordered, the frequency of visitation
where the parties do not live in close proximity, the allocation of cost of transportation, and
the activities of the child in her home community which might be affected. Furthermore, the
lower court in a case such as this should evaluate the nature of the relationship which may
exist between the child and the grandparent.
As we recognized in Honaker v. Burnside, 182
W.Va. 448, 452, 388 S.E.2d 322, 326 (1989), stability in a child's life is a major concern.
This continuity is especially important if a grandparent or other relative has been the care giver. "Taking away continued contact with . . . important figures in . . . [a child's] life
would be detrimental to her stability and well-being . . . ." Id. See also Kenneth L.W. v.
Tamyra S.W., 185 W.Va
, 408 S.E.2d 625 (1991).
These issues were not adequately
addressed by the lower court, and we must remand for completion of this task.
Therefore, we remand this matter to the lower court for an evaluation and determination consistent with this opinion.
Reversed and Remanded with Directions.
Footnote: 1 The Honorable Arthur M. Recht resigned as Justice of the West Virginia Supreme Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton, Governor of the State of West Virginia, appointed him Judge of the First Judicial Circuit on that same date. Pursuant to an administrative order entered by this Court on October 15, 1996, Judge Recht was assigned to sit as a member of the West Virginia Supreme Court of Appeals commencing October 15, 1996, and continuing until further order of this Court.
Footnote: 2 The Appellant emphasizes that she agreed to this limited visitation schedule only because the lower court judge was planning to retire and she was uncertain of the expected date of an order of the lower court.
Footnote: 3 In the present case, this point was allegedly conceded by the Appellee mother during the August 1994 hearing on the Appellant's petition for custody. However, the court made no specific finding on this issue.