The family unit is a core element upon which this nation was based. Over the years, states have expanded their authority with regard to decisions traditionally made by the family unit while maintaining the integrity and protection of personal rights guaranteed by the Constitution. For instance, although the liberty interest guaranteed by the Fourteenth Amendment has been interpreted to include the "freedom to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children," this "right" to rear children without undue governmental interference is not absolute. Our legislators have found it prudent and necessary to enact legislation to guarantee the safety, education and physical and emotional welfare of our children through such programs as vaccinations, automobile safety restraints, employment restrictions and the limitation and termination of parental rights. In all of these examples, legislators have determined that the interests and welfare of the children are paramount to the rights or wishes of the parents.

This article will examine the growing controversy and the constitutional concerns of the West Virginia Grandparent Visitation Statute, set forth in §48-2B-1, et seq., as it relates to intact family units. As currently enacted, this statute permits grandparents to petition the court for visitation with their grandchildren not only in cases where there are proceedings for divorce, custody, legal separation, annulment or establishment of paternity, but also where the above circumstances affecting the family unit are not present.

At common law, grandparents did not possess a legal right to custody or visitation of a grandchild over the parents’ objection. However, the common law rule was changed in 1980 with the enactment of West Virginia Code §48-2B-1, the Grandparent Visitation Statute. This statute initially provided for grandparent visitation only in instances where the grandparent’s child was deceased. In 1986, the statute was amended to also permit a petition for visitation under certain circumstances when the parents of the child were divorced.

Subsequently, in 1992, the statute was substantially amended when the legislature determined that the best interest of the children must be the first and paramount consideration in awarding visitation to grandparents. The statute also enumerated the following five circumstances where the circuit court would have jurisdiction to consider grandparent visitation: (1) where divorce or separate maintenance is ordered and the parent has not appeared, etc.; (2) upon abandonment or abrogation of visitation rights by the grandchild’s parent or judicial preclusion of such visitation; (3) when the parent through whom the grandparent is related is deceased (4) when the minor child has resided with the grandparent for six consecutive months or more within the past two years; and (5) under certain circumstances when the parents of the child are unwed.

Although this amendment certainly expanded the opportunities for grandparents to petition for visitation, the statute clearly did not address (and thus assumingly did not permit) petitions in those cases where the family unit remained intact. However, in 1998, the legislature found that it was appropriate to apply the statute when no proceeding for divorce, custody, legal separation, annulment or establishment of paternity was pending as well as in all situations where the parents of the child were not married.

It was following this latest enactment that the statute’s constitutionality began to undergo increased scrutiny. From the parents’ point of view, the state should not have the authority to interfere with their decision to deny grandparents contact with their children. Arguably, such interference violates their fundamental rights to liberty and due process under both the state and federal constitutions. From the grandparents’ perspective, the right to decide how children are raised has never been absolute such that the children’s best interest must be considered in determining whether to award visitation. Furthermore, since the statute sets forth procedures for the circuit court to follow prior to awarding visitation, the due process rights of the parents can be considered and protected.

It has been argued that grandparent visitation can amount to a severe intrusion into the autonomy of an intact family in violation of constitutional guarantees. However, the mere fact that this statute permits a petition for visitation where the family is intact should in and of itself not render it unconstitutional. To base an argument on this reasoning would suggest that intact families deserve special treatment and that "widowed, divorced, remarried, or unmarried parents are less fit ... to raise his or her own child." Moreover, our legislators did determine that it was

appropriate to afford greater protections to intact families insofar as the statute sets forth different burdens of proof to be met by the petitioning grandparents. In the case where the family is not intact, the burden of proof is a preponderance of the evidence. On the other hand, if the family is intact, it is presumed that visitation privileges need not be extended and that this presumption may only be rebutted by the higher standard of clear and convincing evidence. Thus, from the start, parents are afforded protection based upon this higher burden of proof for intact families.

Another argument traditionally asserted by parents involves the rights and protections afforded to all individuals under the various provisions of the United States Constitution. One of these rights is the liberty interest guaranteed by the Fourteenth Amendment, which has been interpreted to include the freedom to decide the proper manner for rearing children. However, this "right" is far from absolute and has historically been subject to a multitude of governmental regulation. In enacting such regulatory schemes, legislators have placed the interests and welfare of the children paramount to the rights or wishes of the parents.

Another right under this clause of the Constitution is based upon the right to privacy. In the context of grandparent visitation, courts traditionally have only addressed arguments asserting this right when it is specifically included within the state’s constitution. Unlike other states, West Virginia’s Constitution does not encompass a specific guarantee to the right to privacy.

Yet another contention commonly raised by parents is the right to due process. "In determining whether a judicial act violates the due process clause in W.Va. Const. Art. III, §10, the threshold question is whether the act implicates a liberty interest." As noted above, the right to raise or rear children is implicated as a liberty interest under the Fourteenth Amendment. Thus, to meet constitutional muster, the Grandparent Visitation Statute must not unnecessarily violate this right. A review of the statute reveals that it provides for written notice (i.e., service of the petition) and the right to present evidence and to obtain a decision from a neutral party (i.e., hearings before a Family Law Master and the Circuit Court Judge.) The statute also sets forth safeguards for the children involved (i.e., the child shall not be called as a witness, the court shall have the discretion to conduct an in-camera interview of the child, and the court may appoint a guardian ad litem). Since this statute meets the procedural requirements of due process under the standard in Overfield v. Collins, it should not be held unconstitutional on this basis.

An analysis of this statute must also address an important factor that tends to be overlooked -- the rights of the children. Case law has established that parents’ rights are secondary to the best interest and welfare of the children. This reflects the more modern principal that "a child is a person and not a subperson over whom the parent has an absolute possessory interest." The focus must be on balancing the best interest and rights of the child vis a vis the rights of the parents. These interests are weighed under the current statute by requiring grandparents to satisfy a two-pronged test: (i) the visitation would be in the best interest of the child, and (ii) would not substantially interfere with the parent/child relationship. By affording careful consideration to these factors, the statute successfully balances the competing interests of the parties while recognizing the rights and interests of the child.

The debate over the constitutionality of the Grandparent Visitation Statute as it relates to intact families will likely continue until our State Supreme Court has the opportunity to address the issue. However, based upon the burden of proof placed upon the petitioning grandparents, the due process protections which the statute affords to parents, as well as case law from other states, this statute should pass constitutional muster. Even so, this is only one hurdle for grandparents to overcome as visitation is by no means guaranteed. Instead, such visitation will only be awarded to those grandparents who can prove by clear and convincing evidence that visitation would be in the child’s best interest and will not substantially interfere with the parent/child relationship.

No family is perfect. Unfortunately, many adults are not able to put aside their personal differences and, just as in cases of divorce, the children are used as a means to "get back" at other persons, including their own parents. Without this statute, grandparents who previously enjoyed a natural and mutually fulfilling relationship with their grandchildren could be unilaterally cut off from this traditional relationship. In such event, both the grandparents and the grandchildren would lose out. As enacted, the current statute allows grandparents the opportunity to maintain their relationship with their grandchildren, thereby promoting overall family bonds.