743 S.E.2d 346
W. Va.2013Background
- This is a West Virginia Supreme Court of Appeals review of a circuit court’s grant of grandparent visitation to S.R., against J.P. (the petitioner) who is the child’s parent.
- The child, A.P., was born May 8, 2009, and initially resided with the petitioner and the petitioner’s mother (the respondent) who provided extensive childcare.
- By July 2009 the petitioner and child moved out; the respondent continued to have regular visitation and overnight visits through December 2009, after which visitation declined.
- In April 2010 the petitioner prohibited further visitation by the respondent; the respondent filed for grandparent visitation on June 23, 2010.
- The family court eventually awarded the respondent visitation on August 4, 2011, but with limited hours and conditions designed to protect the parent-child relationship.
- The circuit court affirmed the family court’s order; the Supreme Court reverses and remands to deny grandparent visitation to the respondent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the GP Visitation Act applies as the exclusive remedy | Perry contends the act governs grandparent visitation and requires best-interests analysis with parental weight. | S.R. contends the lower courts properly weighed best interests and parental preferences under Troxel. | Act applies; parent’s preference receives special weight. |
| Whether parental preference must be given special weight under Troxel | Perry argues fit parent wishes must be given substantial weight in the analysis. | S.R. asserts the courts appropriately weighed the child’s best interests with some deference to the parent. | Petitioner’s preference must be given special weight; lower courts erred by discounting it. |
| Whether the statutory presumption against grandparent visitation was properly rebutted | Perry argues the respondent failed to show by clear and convincing evidence that visitation is in the child’s best interests. | S.R. argues the respondent demonstrated a substantial bond and care, rebutting the presumption. | Presumption not rebutted; visitation denied. |
Key Cases Cited
- Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004) (de novo review on legal questions; clearly erroneous/fact-finding standards)
- Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (de novo review for statutory interpretation)
- Nearhoof, 178 W.Va. 359, 359 S.E.2d 587 (1987) (best interests given paramount consideration in grandparent visitation)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental rights receive special weight; state cannot overstep fit parent's decisions)
- State ex rel. Brandon L. v. Moats, 209 W.Va. 752, 551 S.E.2d 674 (2001) (special weight to parental preference within Troxel framework)
- Cathy L.M. v. Mark Brent R., 217 W.Va. 319, 617 S.E.2d 866 (2005) (emphasizes special weight to parent wishes in grandparent visitation)