Scott A. Curnutte
Elkins, West Virginia Elkins, West Virginia
Attorney for the Petitioners Attorney for the Respondents,
Linda K. S. and Richard S.
Clagett & Gorey
Phillipi, West Virginia
Guardian Ad Litem for
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICE DAVIS and JUSTICE MAYNARD dissent and reserve the right to file dissenting opinions.
1. 'Prohibition lies
only to restrain inferior courts from proceeding in causes over which they have
no jurisdiction, or, in which, having jurisdiction, they are exceeding their
legitimate powers, and may not be used as a substitute for [a petition for appeal]
or certiorari.' Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d
370 (1953). Syl. Pt. 3, State ex rel. Hoover v. Berger, 199 W.Va.
12, 483 S.E.2d 12 (1996).
2. The general rule
of statutory construction requires that a specific statute be given precedence
over a general statute relating to the same subject matter where the two cannot
be reconciled. Syllabus Point 1, UMWA by Trumka v. Kingdon, 174
W.Va. 330, 325 S.E.2d 120 (1984).
The West Virginia Grandparent Visitation Act, West Virginia Code §§ 48-
2B-1 to -12 (1998) (Repl.Vol. 1999), by its terms, does not violate the substantive
due process right of liberty extended to a parent in connection with his/her
right to exercise care, custody, and control over his/her child[ren] without
undue interference from the state.
Petitioners Brandon L. and
Carol Jo. L.,See footnote 1 1
the adoptive stepfather and the natural mother of Alexander David L., a
minor child, seek a writ of prohibition to prevent enforcement of the September
22, 2000, order of the Circuit Court of Braxton County directing that an evidentiary
proceeding be held before the family law master in connection with the petition
filed by Respondents Linda K. S. and Richard S. (hereinafter referred to as
Respondents), the paternal grandparents, through which they sought
visitation with Alexander David. Petitioners contend that Respondents have no
standing to seek visitation rights under the provisions of this state's grandparent
visitation statutes (herein referred to as the grandparent act or
the act), West Virginia Code §§ 48-2B-1 to -12 (1998)
(Repl.Vol.1999),See footnote 2 2
and that the provisions of the act amount to an unconstitutional deprivation
of their liberty interest with regard to issues of care, custody, and control
of their child. Upon a thorough review of the issues raised herein, we find
no constitutional infirmities with the grandparent act and conclude that Petitioners
have not demonstrated the necessary requisites for the issuance of a writ of prohibition. Accordingly, we deny their request
for extraordinary relief.
Respondents, who were completely
unaware of the adoption proceedings until after the adoption was granted, filed
an action in the circuit court on May 23, 2000, through which they sought visitation
rights with Alexander David. Pursuant to a telephone conference held on June
12, 2000, the family law master considered Respondents' request for temporary
visitation along with Petitioners' motion to dismiss, which was predicated on
their argument that Respondents lacked standing under the grandparent act. Concluding
that Respondents had no standing to pursue visitation rights, the family law
master recommended dismissal of Respondents' petition. Respondents sought review
of this recommended disposition before the circuit court and by order entered on September 22,
2000, the circuit court rejected the family law master's recommendation and
recommitted the matter to the family law master for a full hearing to
determine whether the requested grandparent visitation would be in the best
interests of the infant child and would not substantially interfere with the
parent-child relationship, in accordance with the factors delineated in West
Virginia Code § 48-2B-5 (1999). Petitioners seek a writ of prohibition
to prevent this matter from proceeding to the evidentiary hearing directed by
the lower court.
In viewing the provisions
of section 9 of the grandparent act as determinative with regard to the issue
of standing, Petitioners are clearly misguided. Standing to proceed under the
act is addressed in section 3. That section states: A grandparent of a
child residing in this state may, by motion or petition, make application to
the circuit court of the county in which that child resides for an order granting
visitation with his or her grandchild. W.Va. Code § 48-2B-3.
Under the statutory scheme of the act, there are no limitations on when a petition
may be filed by a grandparent for the purpose of requesting visitation rights
with a grandchild. By its terms then, section three of the act does not proscribe
consideration of petitions seeking visitation to only pre-adoption situations.See
footnote 8 8
In concluding that Respondents
had standing, the circuit court relied upon the provisions of section 4(b):
The Court specifically finds that West Virginia Code § 48-2B- 4(b) (1999) is the applicable statute which does provide the Petitioners with standing to petition for grandparent visitation.
West Virginia Code § 48-2B-4(b) places no limitations on when or
whether a grandparent(s) may petition the Court for visitation. In addition,
although West Virginia Code § 48-2B-9(b) (1999) does not specifically
address the situation, as in this matter, where no grandparent visitation order
has been entered prior to an adoption of the infant child by a stepparent, the
code section does not preclude a grandparent(s) from petitioning the Court for
While section 4(b) is not the provision that provides standing to Respondents, that section is nonetheless applicable because it governs the procedures to be employed in instances, like the case before us, where the visitation petition is not included as a part of another proceeding.
Section 4(b) of the act provides that:
The provisions of this subsection apply when no proceeding for divorce, custody, legal separation, annulment or establishment of paternity is pending. A grandparent may petition the circuit court for an order granting visitation with his or her grandchild, regardless of whether the parents of the child are married. If the grandparent filed a motion for visitation in a previous proceeding for divorce, custody, legal separation, annulment or establishment of paternity, and a decree or final order has issued in that earlier action, the grandparent may petition for visitation if the circumstances have materially changed since the entry of the earlier order or decree.
In matters covered by section 4(b)--cases where no divorce, custody, legal separation, annulment or establishment of paternity proceeding is pending--the following procedures apply:
(c) When a petition under subsection (b) of this section is filed, the matter shall be styled In re grandparent visitation of [petitioner's(s') name(s)].
court, on its own motion or upon the motion of a party or grandparent, may appoint
a guardian ad litem for the child to assist the court in determining the best
interests of the child regarding grandparent visitation.
W.Va. Code § 48-2B-4(c), (d).
Section 4(b) of the grandparents
act along with subsections (c) and (d), address the procedural particulars involved
in those instances when the petition seeking visitation is instituted separate
from any ongoing domestic relations proceeding. A simple comparison of section
4(a),See footnote 9 9 which
applies when there are pending domestic relations proceedings, with section
4(b) demonstrates that the Legislature clearly contemplated that grandparents
could seek visitation in instances where no other domestic relations type proceeding
is pending. Cf. W.Va. Code § 48-2B-4(a), (b). Through
the provisions of section 4(c) and (d), the Legislature went a step further
and set forth how the pleadings are to be styled and authorized the appointment of a guardian ad litemSee
footnote 10 10 in cases such as the present one where the proceeding
initiated under the grandparent act is separate from any other pending matter.
See W.Va. Code § 48-2B-4 (c), (d).
Choosing to ignore the clear
language of section 3, Petitioners rely exclusively on section 9(b) of the act
in arguing that Respondents have no standing under the act. Petitioners suggest
that, because this section does not reference instances where visitation rights
have not been granted pre-adoption, no standing exists for any grandparent to
seek visitation rights following an adoption if such rights were not previously
established. This argument fails because section 9 expressly deals with the
effect of remarriage or adoption on established visitation rights. In
suggesting that the absence of language in section 9(b) addressing situations
similar to Respondents defeats their right to seek visitation, Petitioners ignore
the clear imperatives of sections 3 and 4(b), (c), and (d). See W.Va.
Code §§ 48-2B- 3, 4(b), (c), (d). There is no mention of
non-established visitation rights in section 9 as that section is concerned
only with established visitation rights. See W.Va. Code § 48-2B-9.
The standing of a party to seek visitation rights, where no such rights have
previously been established, is addressed in section 3. See W.Va. Code
While the language of section
9(b) does not address the issue of Respondents' standing, it demonstrates that
the Legislature draws a distinction concerning issues of visitation depending
on the type of adoption involved. Section 9(b) makes clear that the Legislature
both contemplated and approved the continuation of visitation rights following
an adoption in those instances where the adoption occurs within the immediate
family, as opposed to outside the family.See
footnote 11 11 In providing that visitation rights which are established
pre- adoption are not to be affected by an adoption that occurs when the adopting
parent is a stepparent, grandparent, or other relative of the child, the Legislature
was both recognizing the difference between adoptions that occur within and without
the immediate family and expressing a preference of continuing established relationships
between children and their grandparents in the former instance. Understandably,
adoptions that take place outside the immediate family do not permit, nor perhaps
should they, the continuation of visitation rights that were granted pre-adoption.
See W.Va. Code § 48-2B-9(b). In contrast, however, adoptions
that take place within the family do not automatically result in the complete extinguishment of established visitational relationships between adoptive
children and their grandparents under the act. See id.
Respondents argue that the
absence of language in the act which addresses their specific circumstances,
rather than being an indication of legislative intent to deny them standing,
is just the opposite. As analogous support for this contention, Respondents
discuss this Court's decision in Elmer Jimmy S. v. Kenneth B., 199 W.Va.
263, 483 S.E.2d 846 (1997), in which we held that visitation could be granted
following the termination of the parental rights of the child of the petitioning
grandparents where the prior grandparent act, West Virginia Code 48-2B-1 to
-9 (1992), was silent with regard to what effect termination of parental rights
had on grandparent visitation. The reasoning employed in Kenneth B. was
essentially that, while the Legislature could have provided for the cessation
of grandparent visitation rights upon a termination of parental rights for abuse
or neglect, the absence of law expressly disallowing visitation upon such a
termination of rights suggested that the Legislature did not intend to prohibit
visitation in all such instances. 199 W.Va. at 267, 483 S.E.2d at 850. While
Kenneth B. does stand for the proposition that the absence of legislation
denying visitation may, in some instances, be construed as an indirect indication
of legislative approval for visitation, we find it unnecessary to rely upon
Kenneth B. as support for our conclusion that standing exists in this
case. Based on our determination that section 3 is the singular provision that
governs whether a grandparent has standing under the act, we do not have to rely upon the nonexistence of language in the act which
expressly governs visitation rights sought in the first instance following an
adoption. See also Troxel v. Granville, 530 U.S. 57, 60, 62 (2000) (noting
that Washington statutory language which read [a]ny person may petition
the court for visitation rights at any time gave grandparents standing
to seek visitation irrespective of whether a custody action was pending).
In a final attempt to defeat
Respondents' standing to pursue visitation rights with their grandchild, Petitioners
go outside the act to a statutory provision contained in the adoption statutes.
The specific statute upon which Petitioners rely is West Virginia Code § 48-4-11
(1984) (Repl.Vol.1999), which provides, in pertinent part, that:
(a) Upon the entry of such order of adoption, any person previously entitled to parental rights, any parent or parents by any previous legal adoption, and the lineal or collateral kindred of any such person, parent or parents, except any such person or parent who is the husband or wife of the petitioner for adoption, shall be divested of all legal rights, including the right of inheritance from or through the adopted child under the statutes of descent and distribution of this State, and shall be divested of all obligations in respect to the said adopted child, and the said adopted child shall be free from all legal obligations, including obedience and maintenance, in respect to any such person, parent or parents. From and after the entry of such order of adoption, the adopted child shall be, to all intents and for all purposes, the legitimate issue of the person or persons so adopting him or her and shall be entitled to all the rights and privileges and subject to all the obligations of a natural child of such adopting parent or parents.
W.Va. Code § 48-4-11 (emphasis supplied).
Despite the express language of
section one of the act, which declares in unmistakably clear terms, that the subject
grandparent act, which was enacted in 1998,See
footnote 12 12 is the exclusive legislation
with regard to the issue of visitation, Petitioners nonetheless maintain that
the adoption statutes are controlling on the issue of grandparent visitation.
W.Va. Code § 48-2B-1 (emphasis supplied); see also Kenneth B.,
199 W.Va. at 266, 483 S.E.2d at 849 (emphasizing identical language contained
in the 1992 grandparents act stating that the act was exclusive with
regard to visitation before resolving whether termination of parental rights had
affect on correspondent grandparent's right to visitation). The adoption statute
at issue was first enacted in 1882 and was last amended in 1984. Because the subject
matter of grandparent visitation is one of relatively recent vintage, 1980 in
this state,See footnote 13 13
there can be little question that the enactment in 1882 of West Virginia
Code § 48-4- 11, which is directed at the divestment of rights to a
child upon the entry of an adoption order, was not written with concern for the
correlative divestment of a grandparent's rights to visitation. Of further significance
is the fact that the last amendments to West Virginia Code § 48-4-11
occurred in 1984. Since that time, the Legislature has twice enacted legislation dealing with the issue of grandparent visitation and has included,
in both of those enactments, identical language indicating that those statutory
enactments are the exclusive law on the subject matter. See
W.Va. Code § 48-2B-1 (1992); W.Va. Code 48-2B-1 (1998).
Even if we were to conclude
that the act and West Virginia Code § 48-4-11 were in conflict, which
we do not, the rules of statutory construction would nonetheless require that
we resolve the issue based on the specific language set forth in the grandparent
act, rather than under the general statutory language that appears within the
adoption statutes. As we recognized in syllabus point one of UMWA by Trumka
v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984), [t]he general rule
of statutory construction requires that a specific statute be given precedence
over a general statute relating to the same subject matter where the two cannot
be reconciled. See also, Cropp v. State Workmen's Compensation
Comm'r, 160 W.Va. 621, 626, 236 S.E.2d 480, 484 (1977) (stating that [i]t
is an accepted rule of statutory construction that where a particular section
of a statute relates specifically to a particular matter, that section prevails
over another section referring to such matter only incidentally); Syl.
Pt. 2, State ex rel. Myers v. Wood, 154 W.Va. 431, 175 S.E.2d 637 (1970)
(A specific section of a statute controls over a general section of
the statute.). Because the grandparent act is specific legislation drafted
and adopted for the express purpose of addressing the issue of visitation, its
provisions must necessarily be viewed as controlling when a question arises regarding the application of another code provision
with regard to the issue of grandparent visitation.
In a case decided before the
adoption of the current grandparent act, In re Nearhoof, 178 W.Va. 359,
359 S.E.2d 587 (1987), we addressed the precise issue that Petitioners raise
in this case: whether West Virginia Code § 48-4-11 and the grandparent
act then in existenceSee footnote 14
14 were in conflict based on the identical language relied upon
by Petitioners to argue that Respondents' legal rights were extinguished coterminous
with the adoption. At issue in Nearhoof was whether the adoption of a
grandchild by his stepmother resulted in the termination of visitation rights
that were petitioned for and obtained by the maternal parents of the child's
deceased mother pre-adoption. 178 W.Va. at 360-61, 359 S.E.2d at 588-89. While
the grandparent visitation statute then in effect provided for visitation where
the child of the petitioning grandparents was deceased, it was not clear what
effect the adoption of a child had on a grandparent's right to continue an established
grant of visitation rights. See W.Va. Code § 48-2B-1 (1980).
After examining the decisions of three other states on this very issue, we concluded
that rather than being in conflict, the adoption and grandparent statutes had
the same underlying objective: [T]o provide substitute parental relationships for children who have been deprived of the benefits of a healthy
relationship with one or both natural parents. 178 W.Va. at 363, 359 S.E.2d
at 591. Rather than viewing the language of West Virginia Code § 48-4-11
as prohibitive of grandparent visitation, we determined that the legislature
intended to vest in the trial court exclusive discretionary authority to grant
grandparents' visitation rights pursuant to W.Va. Code, 48-2B-1 . . .
. 178 W.Va. at 363, 359 S.E.2d at 591. As further support for our decision
in Nearhoof, we observed that had the legislature intended the
adoption statute to limit the statute providing for grandparents' visitation,
the statutes could have reflected that intention. Id. at 364, 359
S.E.2d at 592. In concluding, we stated that: [T]he availability of the
grandparent visitation mechanism is not limited to the nonadoptive custodial
setting. We do not believe that the legislature intended to permit the statutorily
granted right of grandparent visitation to be frustrated by the otherwise beneficient
[sic] provisions of the adoption statute. Id.
We find significant the fact
that, despite the passage of fourteen years since the Nearhoof decision,
the Legislature has yet to enact legislation expressly denying grandparent visitation
following adoptions. Rather than enacting such prohibitory legislation, the
Legislature has expressed a clear preference, through the proviso language included
in section 9(b), for continuing established visitation rights where an adoption
involves a stepparent, grandparents, or other relative. W.Va. Code
§ 48-2B-9(b). This enactment illustrates the Legislature's recognition
that under certain limited circumstances, grandparents should have continuing contacts with their grandchild's development.
Nearhoof, 178 W.Va. at 364, 359 S.E.2d at 592. The reasons for such continuing
contact are many, as we recognized in Nearhoof:
It is biological fact that grandparents are bound to their grandchildren by the unbreakable links of heredity. It is common human experience that the concern and interest grandparents take in the welfare of their grandchildren far exceeds anything explicable in purely biological terms. A very special relationship often arises and continues between grandparents and grandchildren. The tensions and conflicts which commonly mar relations between parents and children are often absent between those very same parents and their grandchildren. Visits with a grandparent are often a precious part of a child's experience and there are benefits which devolve upon the grandchild from the relationship with his grandparents which he cannot derive from any other relationship. Neither the Legislature nor this Court is blind to human truths which grandparents and grandchildren have always known.
178 W.Va. at 364, 359 S.E.2d at 592 (quoting Mimkon v. Ford, 332 A.2d 199, 204-05 (N.J. 1975)). Having found no statutory impediment to the issue of standing, we proceed to determine whether a constitutional defect prevents implementation of the grandparent act.
After discussing the underlying
basis of the liberty interestSee footnote
15 15 that is implicated with a parent's rights concerning the
care, custody, and control of her children, the Court proceeded to consider what
had ensued in the Troxel case. In response to the paternal grandparents'
request that they be granted visitation rights with their two granddaughters,See
footnote 16 16 the trial court, based mostly on his own positive
experiences as a child,See footnote 17
17 determined that it would be in the best interests of the children to have expanded contact with
their grandparents and ordered that the grandparents could have one weekend
of visitation per month, one week in the summer, and time on both of the petitioning
grandparents' birthdays. 530 U.S. at 71.
In attacking the trial court's
ruling in Troxel, the Supreme Court heavily criticized the lower court's
alteration of the burden of proof:
The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville's [mother's] determination of her daughters' best interests. More importantly, it appears that the Superior Court applied exactly the opposite presumption. . . . In effect, the judge placed on Granville, the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters.
530 U.S. at 69. Rather than requiring the grandparents to prove that visitation would be in the best interests of the children, the trial court reversed this burden and imposed it on the children's mother, the non-petitioning party.
Also critical to the ruling in
Troxel was the failure of the Washington Supreme Court to give the statute
at issue a more narrow interpretation. The high Court found disfavor with the
fact that the Washington statute contains no requirement that a court accord
the parent's decision any presumption of validity or any weight whatsoever.
530 U.S. at 67. The Supreme Court also disliked the fact that the Washington statute,
unlike the West Virginia act, was so broadly written that it applied to any third
party and was not limited to grandparents or other parties who had a specific
relationship with the child[ren] in issue. Id. Given the absence of any
limiting factors within the statute or any interpretational limitations imposed
by the Washington Supreme Court, the Court in Troxel was concerned with
the inevitability of a judge imposing his own best interest standard
and totally disregarding the stated preferences of the parent where there had
been no showing of unfitness with regard to that parent. Id.
Despite all these shortcomings--a
broadly written statute that provided for no consideration of the parent's preferences
and which permitted the trial court to apply whatever factors the trial court
deemed appropriate in determining the pivotal issue of best interests--the United
States Supreme Court did not conclude that the Washington statute was unconstitutional
per se, but only as applied to the facts of that particular case. Explaining
its decision, the Court stated:
Because we rest our decision on the sweeping breadth of § 26.10.160(3) and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court--whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context. In this respect, we agree with Justice Kennedy that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best 'elaborated with care.' Because much state- court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific non-parental visitation statutes violate the Due Process Clause as a per se matter.
530 U.S. at 73 (emphasis supplied).
After discussing the deficiencies
of the Washington statute with regard to its fail[ure] to provide any
protection for Granville's [mother's] fundamental constitutional right to make
decisions concerning the rearing of her own daughters, the United States
Supreme Court identified, with seeming approval, the statutes of seven other
states and noted specific language contained in those statutes that stood in
contrast to the Washington statute. See Troxel, 530 U.S. at 70, citing,
inter alia, Me. Rev. Stat. Ann. 19A § 1803(3) (1998) (providing that
court may award grandparent visitation if in best interest of child and would
not significantly interfere with any parent-child relationship or with the parent's
rightful authority over the child); Minn. Stat. § 257.022(2)(a)(2)
(1998) (providing that court may award grandparent visitation if in best interest
of child and such visitation would not interfere with the parent-child relationship); Neb. Rev. Stat. § 43-1802(2)
(1998) (requiring that court must find by clear and convincing evidence
that grandparent visitation will not adversely interfere with the parent-child
The West Virginia statutory
scheme stands in stark contrast to the simplistic and broadly-worded two-sentence
Washington statute scrutinized in Troxel. As an initial matter, our statute
does not permit just any person to file a petition under the act.
See W.Va. Code § 48-2B-3 (providing that only grandparents
can seek visitation under W.Va. act). In addition to setting forth the axiomatic
standard of best interests by which any visitation decisions are to be made
under the act, section five of our act requires a correspondent affirmative
determination that such visitation would not substantially interfere with
the parent-child relationship. W.Va. Code § 48-2B-5(a). As an
aid to making this joint determination of best interests and lack of substantial
interference with the parent- child relationship, the Legislature has delineated
twelve specific and one general factor for the trial court's consideration of
this weighty issue. Those factors are:
(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 is residing;
(6) If the parents are divorced or separated, the custody and visitation arrangement which exists between the parents with regard to the child;
(7) The time available to the child and his or her parents, giving consideration to such matters as each parent's employment schedule, the child's schedule for home, school and community activities, and the child's and parents' holiday and vacation schedule;
(8) The good faith of the grandparent in filing the motion or petition;
(9) Any history of physical, emotional or sexual abuse or neglect being 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 of time, with or without the child's parent or parents; or
(11) Whether the grandparent has, in the past, been a significant caretaker for the child, regardless of whether the child resided inside or outside of the grandparent's residence.
(12) The preference of the parents with regard to the requested visitation; and
(13) Any other factor relevant to the best interests of the child.
W.Va. Code § 48-2B-5(b) (1) - (13) (emphasis supplied). A final significant difference between our statute and the Washington statute is the inclusion of a burden of proof standard requiring grandparent(s) seeking visitation to prove by a preponderance of the evidence that the requested visitation is in the best interest of the child. W.Va. Code § 48-2B-7(a), (c).
In light of these extensive
and significant improvements over the Washington statute, we find Petitioners'
statement that [e]ach of the deficiencies the Supreme Court identified
in the Washington statute is present in W.Va. Code § 48-2B-1, et
seq. to be without merit. Placing unwarranted importance on the numerical
placement of parental preference as the twelfth factor for the trial court's consideration, Petitioners
first suggest that this placement denotes a lessening of the factor's constitutional
significance. In addition, Petitioners argue that the location of parental preference
towards the bottom of the list somehow indicates that this particular factor
is a co-equal factor to be weighted equally with the other twelve factors. Unlike
Petitioners, we find nothing in the legislative delineation of these factors
in section 5 of the act that suggests either that the factors are to be given
equal weight or that a parent's preference on the issue of visitation is not
to be accorded any enhanced consideration. In reviewing the Washington statute
in Troxel, the United States Supreme Court suggested that if the Washington
Supreme Court had interpreted the statute at issue in a narrower fashion the
high Court's ruling of unconstitutionality might have been avoided. 530 U.S.
at 67. While the instant petition for a writ of prohibition does not present
the opportunity for us to determine the amount of weight that should attach
to the factor of parental preference,See
footnote 18 18 we note that in light of the Troxel decision
it is clear that the court must accord at least some special weight to
the parent's own determination provided that the parent has not been shown
to be unfit. 530 U.S. at 70.
After comparing the provisions
of our grandparent act with the flaws identified by the Court in Troxel,
we conclude that the act, by its terms, does not violate the substantive due process
right of liberty extended to a parent in connection with his/her right to exercise
care, custody, and control of his/her child[ren] without undue interference from
the state. See Troxel, 530 U.S. at 65-66. Our statutory scheme addresses
almost every concern addressed by the Court in Troxel and many of those
concerns are alleviated outright by the overarching standard that requires all
visitation decisions to be reached by applying a two-prong standard of best interests
and lack of substantial interference with the parent-child relationship. See
W.Va. Code § 48-2B-5(a). Moreover, we are convinced that the Legislature
both anticipated and provided for the proper consideration of the parent's liberty
interest within the parameters of the Troxel ruling. This is demonstrated
both by the listing of parental preference as a factor that directly bears on
the issue of visitation and, perhaps even more importantly, by the legislatively-imposed
requirement that any grant of visitation must be preceded by an express affirmative
finding that the visitation w[ill] not substantially interfere with the
parent-child relationship. Id. Thus, because our act expressly requires
consideration of parental preference and because no grant of visitation can be
accomplished without an initial determination that such visitation will not detrimentally
affect the parent- child relationship, the constitutional deficiencies presented
by the Washington statute at issue in Troxel are not present here. Accordingly,
we reject Petitioners' suggestion that the act is constitutionally deficient on
its face given the inclusion of parental preference within a list of other factors for the trial court's consideration on the issue of visitation.
And, given the procedural phase of this matter, we have no basis from which
to make any finding that the act is unconstitutional in application since the
statutory provisions under discussion have yet to be applied to reach any determination
as to the ultimate issue of visitation.
Although we find no impediment
to Respondents' standing and thus to enforcement of the lower court's order
directing that the matter proceed to an evidentiary hearing, we wish to make
clear that our decision on standing has no bearing on the more difficult issues
yet to be resolved: whether an award of visitation is in the best interests
of the child and will not substantially interfere with the parent-child relationship.
See W.Va. Code § 48-2B-5. While the Legislature has clearly
opened the courthouse doors in granting circuit courts jurisdiction to consider
petitions for grandparent visitation, the Legislature has also enumerated a
considerable set of factors that bear on this weighty issue of visitation. See
id. One of those factors, which is deserving of discussion today, and which
has been used by this Court in resolving issues of contact between children
and relatives in various domestic settings, is whether there has been an established
relationship between the child and his/her relative prior to the subject litigation.See
footnote 19 19 See W.Va. Code § 48-2B-5(b)(2).
Obviously, a grandparent who has an established relationship with his/her grandchild
will be in a better position when the trial court is asked to rule upon the
issue of visitation, than one who has just appeared out of the blue, or with
little history of contact, and is now seeking to gain visitation rights.See
footnote 20 20 As the Supreme Court recognized in Troxel,
the motivating factor for the creation of grandparent visitation statutes was
a legislative recognition of the societal need to ensure the welfare of
the children therein by protecting the relationships those children form with
. . . third parties such as grandparents. 530 U.S. at 64. And underpinning
all of these statutes is a recognition, which varies from State to State,
that children should have the opportunity to benefit from relationships with
statutorily specified persons--for example, their grandparents. 530 U.S.
at 64; see also Kessel v. Leavitt, 204 W.Va. 95, 197, 511 S.E.2d 720,
822 (1998) (stating that [i]n recent years, the recognized rights of grandparents
have continued to expand through both statutory definition and judicial interpretation),
cert. denied, 525 U.S. 1142 (1999). Despite this legislative recognition
of the important role that grandparents can play in the lives of children, a
grandparent who seeks to avail him or herself of this statutorily-granted mechanism
for seeking visitation must be able to demonstrate that the visitation being
sought will be in the best interest of the child[ren] and will not substantially
interfere with the parent-child relationship. See W.Va. Code § 48-2B-5(a).
This will be very difficult to do in cases where adoptions have preceded the
petitions seeking visitation unless the petitioning grandparent[s] can demonstrate
to the trial court's satisfaction, within the guidelines and standards established
by the Legislature, that such visitation is likely to be a positive factor in
the child's life and will not unduly disrupt the child's relationship with his/her
parent(s). And, as we emphasized previously, in the absence of an established
relationship between the grandparent[s] and the child[ren], it will be most
difficult to meet the statutory standards imposed under the act.See
footnote 21 21
We perceive that the
statutory scheme for grandparent visitation--which provides for two ultimate
determinations by the trial court, related both to the best interests of the child[ren] involved and to the protection of the parent-child relationship
from any significant interference--constitutes a workable means by which
the legitimate interests of the child[ren] in maintaining a viable relationship
with their grandparent[s] and the liberty interests of parents relative to the
care, custody, and control of their children can be effectively examined, protected,
and promoted. Under the statutory scheme adopted by the Legislature, which provides
for a hearing on the issue of whether reasonable visitation rights should be
granted, there is no question that Respondents are entitled to present their
evidence and be heard. We wish to emphasize that our ruling today has done nothing
to change the availability of the court system to grandparents seeking visitation
rights. Consistent with our obligation to uphold a legislative enactment as
constitutional when at all possible, we have merely recognized the broad grant
of standingSee footnote 22 21
extended to grandparents by the Legislature under the act. See Syl.
Pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740,
143 S.E.2d 351 (1965) (stating that [e]very reasonable construction must
be resorted to by the courts in order to sustain constitutionality, and any
reasonable doubt must be resolved in favor of the constitutionality of the legislative
enactment in question). Thus, rather than making new law, we have merely
interpreted the act's existing provisions in light of the pronouncements made
by the United States Supreme Court in Troxel. And, as discussed in full
above, we have found West Virginia's act to be well within the constitutional
concerns addressed in Troxel, given the act's specific identification of parental
preference as a factor which directly impacts on the issue of visititation.
We note particularly that the grandparent visitation permitted by the Legislature
here cannot be ordered by the circuit court without an affirmative finding that
such visitation will not cause a substantial interference in the parent- child
relationship, as well as an affirmative finding that such visitation meets the
traditional test of serving the best interests of the child. In short, if the
circumstances fail either prong of that legislatively-defined test, then the
plea for grandparent visitation fails. See W.Va. Code § 48-2B-5(a).
While it would certainly be
preferable for the adults involved in these visitation issues to reach an agreed
and written accommodation, with or without the formal approval of a court order,
we recognize that this will not always be the case. In those, hopefully few,
cases where the matter cannot be resolved without a court deciding one or more
of the issues, it appears to this Court that the statute under consideration
provides a comprehensive and fair means by which the best interests of the child[ren]
and the relationships with their respective parent[s] or grandparent[s] can
be protected from harm resulting either from the inconsiderate or excessive
demands of grandparents or the obstinate or unreasonable and insignificant
objections of parents, any of which may, on occasion, be driven more by emotion
than pursuit of the proper interests of the children and their parents. Because
we recognize the likely sensitivity and difficulty of such circumstances, we
urge the lower courts to be particularly attentive to the need for careful and complete findings
of fact and conclusions of law when ruling on actions brought under this act.
See W.Va. Code § 48-2B- 8(a) (requiring written findings of
fact and conclusions of law).
Finding no basis for issuing the requested writ of prohibition, we hereby deny Petitioners' request for extraordinary relief.
provisions of this subsection apply to all proceedings for divorce, custody,
legal separation, annulment or establishment of paternity. After the commencement
of the proceeding, a grandparent seeking visitation with his or her grandchild
may, by motion, apply to the circuit court for an order granting visitation.
A grandparent moving for an order of visitation will not be afforded party status,
but may be called as a witness by the court, and will be subject to cross-examination
by the parties.
W.Va. Code § 48-2B-4(a).
I look back on some personal experiences . . . .We always
spen[t] as kids a week with one set of grandparents and another set of grandparents,
[and] it happened to work out in our family that [it] turned out to be an enjoyable
experience. Maybe that can, in this family, if that is how it works out.
530 U.S. at 72.
554 (1996) (holding that although an unwed father's biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so); Kenneth L. W. v. Tamyra S. W., 185 W.Va. 675, 680, 408 S.E.2d 625, 630 (1991) (recognizing importance of stability and continuity in child's life in child custody setting and stating that [t]his continuity is especially important if a grandparent or other relative has been the caregiver); Honaker v. Burnside, 182 W.Va. 448, 452-53, 388 S.E.2d 322, 325-26 (1989) (discussing need to provide for transition period in change of custody cases as well as the rights of visitation with a stepparent or half-sibling and stating that [t]aking away continued contact with . . . important figures in . . . [a child's life] would be detrimental to her stability and well-being).