Grandparent Rights and CPS

When Seeking Custody of Your Grandchild

Temporary Custody – Permanent Custody – Relative Adoptions

There are many reasons why grandparents in West Virginia may find themselves seeking temporary custody, permanent custody, or the adoption of a grandchild. If you are interested in providing your grandchild a more stable and secure future, Isner Law Office can help. Our CPS attorneys are dedicated to assisting loving, qualified grandparents throughout West Virginia with enjoying more meaningful relationships with their grandchildren. Let us help you keep them safer and happier while preserving the family legacy. Learn more about your rights as a grandparent and contact Isner Law Office for legal advice and court representation statewide in West Virginia. Call (304) 636-7681.


When Can I Seek Custody of My Grandchild?

It is important to note that the West Virginia Supreme Court of Appeals, as well as the United States Supreme Court, have previously ruled that a fit parent has the inherent right to make all decisions regarding the care, custody, and control of his or her own children. However, this does not apply in some cases, including when a parent:

-is deemed unfit due to misconduct, neglect, abandonment, or another failure to meet a child’s basic needs

-voluntarily gives up parental rights

-loses parental rights under a court termination order

-is deceased (this does not override a Will, Trust, or any other valid, relevant legal documents executed prior to death)

-is arrested and imprisoned, in some cases

-leaves a child with a grandparent and does not return

-chooses to voluntarily give up custody of the child due to illness

-no longer wants a child to live with them

Parental Rights Versus Grandparent Rights In WV

West Virginia law provides courts with the authority to transfer custody of a child when it is in the best interest of the child. Under the laws of nature and the state of West Virginia, even when we do not understand or agree with a parent’s choices, the rights of a grandparent are secondary to the rights of a parent except under certain specific and egregious circumstances as outlined by law. When at least one of the child’s parents is determined to be fit, the court will always grant custody to the parent.

Seeking Temporary or Permanent Custody of a Grandchild In WV

Aside from the general interest of visiting and enjoying grandparenting time with your grandchild, there are certain circumstances when you may wish to pursue the temporary or permanent custody of your grandchild or an eventual petition for adoption. Under West Virginia law, you may be able to petition the court to allow you to take over care of a grandchild in specific situations which may include:

-When a parent is facing termination of parental rights

-When CPS has determined the child is unsafe at home and must be removed

-During a CPS Family Functioning Assessment

-To assist when a parent is unwilling or unable to perform parental duties and responsibilities

-To provide supervision, parenting assistance, or CPS safety services to a child

-As part of a CPS treatment plan

-Under Relative Placement as part of a CPS out-of-home safety plan

-When an emergency situation exists

-As part of a CPS infant plan of safe care

-When a child is removed from a clandestine drug laboratory

-Temporary custody pending a preliminary hearing

WV Grandparent Rights Related to CPS

State Custody of a Child

If a CPS worker believes that a child cannot be protected in his own home, CPS must attempt to arrange alternative placement with a suitable relative, such as a grandparent, or neighbor before filing a petition. These situations may include:

Child In Imminent Danger

Emergency Custody

Pending Child Abuse or Neglect Hearing

Custody of Child Taken by a Law Enforcement Officer

Family Court Ordering Child Into State Custody

Temporary Custody Pending a Preliminary Hearing

Family Court Ordering Child Into State Custody

When a family court judge has ordered CPS to assist in the emergency custody and placement of a child based on clear and convincing evidence that there is exists an imminent danger to the physical well-being of the child as defined in WV Code 49-1-201, the child is not the subject of a pending action before the circuit court alleging abuse and neglect of the child, and there are no reasonable available alternatives to the emergency custody order, the CPS Social Worker MUST determine if any family members should be considered for placement of the child. When this happens, as a grandparent and nearest known relative you have the right to be notified that the child is being placed into state custody, to be informed to contact CPS as soon as possible and to be considered as a caretaker of the child.

Abandonment of a Child

When an abandoned child is discovered, WV statute 49-4-301 prohibits the removal of the child from the home until CPS has made all reasonable efforts to make inquiries and arrangements with neighbors, relatives, and friends, and these have been exhausted, and the department has explored the possibility of placing a worker in the home to care for the child until the parents return.

Termination of Parental Rights

Within 90 days of the date a court has entered a Final Termination Order for both parents, CPS must submit a post-termination placement plan. This order will be used to decide where the child will ultimately reside. When this happens, as a grandparent and nearest known relative you have the right to be notified that the child is being placed into state custody, to be informed to contact CPS as soon as possible and to be considered as a potential adoptive parent of the child.

Placement of a Child With Siblings Already In Foster Care / Adopted

When a child is to be placed into foster care and other siblings are already in foster care or have been adopted, the foster family or adoptive parents will generally receive preference for placement of the child currently under consideration.


Grandparent Rights When a Child Is Adopted Outside the Family

Typically, when a child is placed with an adoptive family with no biological ties to the child all rights of the parents, grandparents, and other family members regarding custody, visitation, and other factors are permanently severed.

Grandparent Rights When a Child Is Adopted Within the Family

In some cases, when a child is adopted by a member of either the mother or father’s biological family, a grandparent may be able to petition for visitation rights, as well as custody, as specified by law. The same criteria for suitability apply as with other similar proceedings, including that the relationship is in the child’s best interest and that the grandparent be fit to care for the needs of the child.

Grandparent Right to Adopt

In West Virginia, as the closest family/kin of a child, grandparents have a right to be notified of termination proceedings against a parent. Grandparents can be considered for temporary custody, permanent custody, and adoption, as relevant. Isner Law Office can assist with all aspects of the adoption process for your grandchild. Time limits do apply, so be sure to contact us right away.

Grandparent Care Options

Kinship Care – Relative Foster Home Placement In WV

When a child is removed from a West Virginia home due to abuse or neglect, kin (family members) who are able to provide a safe, stable home must be given preference. A suitable family member may assume responsibility for the child under either informal or formal kinship care standards, as recognized by law.

Informal Kinship Care – Arranging to care for the child’s needs without the involvement of DHHS

Under this type of arrangement, your rights to make decisions on the child’s behalf, such as education and medical care, may be limited, as the parent retains legal custody. You may be able to access financial assistance including:

Child-only TANF Grants

Medicaid or CHIP


Childcare Assistance

Formal Kinship Care (Relative Care Provider) – Relatives acting in the interest of the state as certified foster parents for children under state custody

As a Relative Care Provider for a ward of the state of West Virginia, you must work toward West Virginia Foster Parent Certification. You will be granted broad decision-making capability and authority for the child. You will also have access to a broad range of resources. You may be assigned a Kinship Navigator to help you address any unmet needs of the child.

WV Foster Parent Certification

Grandparent as Relative Care Provider

To become certified as a foster parent in West Virginia, a relative care provider must:

1. Pass a Home Study (including a home visit, safety check, interviews, and paperwork)

2. Pass a Criminal Background Check

3. Pass an Adult Protective Services and Child Protective Services (APS/CPS) Check

4. Complete the Parent Resources for Information, Development, and Education (PRIDE) Training

Are You a Grandparent Dealing With CPS In WV?

Contact Us - Our CPS Attorneys Fight For You!

Isner Law Office offers professional legal guidance and representation you can trust. Our West Virginia CPS attorneys help grandparents protect their rights when seeking the custody or adoption of a grandchild in West Virginia. Contact Isner Law Office today to schedule a consultation. We can answer all of your questions and help you get started. Call Isner Law Office at (304) 636-7681.