In re B.N.: Delineated, Best‑Interest Visitation for Relative Caregivers Without a Grandparent Visitation Act Motion—and Strict Standing Limits for Non‑Intervenor Grandparents

Introduction

The Supreme Court of Appeals of West Virginia’s memorandum decision in In re B.N., No. 24-477 (Sept. 30, 2025), addresses two recurring issues at the intersection of abuse-and-neglect proceedings and third‑party visitation:

Whether a circuit court may, upon reunification and dismissal of an abuse-and-neglect case, craft a limited, delineated visitation schedule for a relative caregiver (here, a maternal grandmother) when the caregiver has not filed a motion under the Grandparent Visitation Act (GVA), W. Va. Code § 48‑10‑101 et seq.; and
Whether a non‑intervenor grandparent has standing to challenge broader dispositional determinations (such as reunification) and to access confidential transcripts.

The case arose after the West Virginia Department of Human Services (DHS) filed an abuse-and-neglect petition in May 2023 against the child’s father, K.H., following his arrest for domestic battery and possession of a controlled substance. The child’s maternal grandmother, L.N., self‑represented and acting as the relative caregiver during the proceedings, sought to intervene but was denied party status; nevertheless, she provided care while the father participated in and ultimately completed a post‑adjudicatory improvement period. Upon reunification in March 2024, the circuit court invited both the father and grandmother to submit proposed visitation plans to preserve the child–caregiver bond.

The grandmother requested a robust schedule (every other weekend, all holidays in odd years, and one week per month in the summer), while the father proposed a more limited arrangement anchored by the grandmother’s right of first refusal during his out‑of‑town work, plus a week of summer time. The guardian ad litem and DHS recommended the father’s plan as better serving the child’s best interests without encroaching on parental prerogatives. The circuit court dismissed the abuse-and-neglect matter, reunified the child with the father, and awarded the grandmother one guaranteed week of summer visitation, additional visitation at the father’s discretion, and the right of first refusal whenever the father worked out of town. The grandmother appealed, arguing the schedule was insufficient and impractical and raising additional concerns about the adequacy of investigations, venue, and transcript access.

Summary of the Opinion

The Supreme Court affirmed. Applying a deferential standard to custody/visitation determinations and reviewing legal conclusions de novo, the Court held:

Because the grandmother did not bring a motion under the Grandparent Visitation Act, the statutory thirteen‑factor analysis in W. Va. Code § 48‑10‑502 did not govern. Instead, the circuit court properly relied on the child’s best interests and the child’s right to continued association with significant caregivers to fashion limited, delineated contact.
The circuit court did not abuse its discretion by awarding one week of summer visitation, additional time at the father’s discretion, and a right of first refusal tied to the father’s frequent out‑of‑town work—especially given the risk that a rigid “every other weekend” schedule would effectively elevate the grandmother to a parental‑like timeshare, impinging on the reunited parent’s rights.
As a non‑party denied intervenor status, the grandmother lacked standing to challenge the case disposition (reunification) and could not access confidential transcripts or litigate issues that were not preserved below (e.g., alleged violations of the order or venue transfer).

Analysis

Precedents and Authorities Driving the Decision

Standards of Review – Syllabus Point 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011): findings of fact are reviewed for clear error and legal conclusions de novo. The Court also applied the long‑standing abuse‑of‑discretion standard for custody/visitation matters: Syllabus Point 2, In re G.G., 249 W. Va. 496, 896 S.E.2d 662 (2023) (quoting Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977)).
Exclusive Mechanism for Grandparent Visitation – The Court reiterated that the GVA is the exclusive vehicle for grandparents seeking visitation. See Syllabus Points 1–2, Alyssa R. v. Nicholas H., 233 W. Va. 746, 760 S.E.2d 560 (2014) (quoting In re Hunter H., 231 W. Va. 118, 744 S.E.2d 228 (2013)); W. Va. Code § 48‑10‑301; § 48‑10‑402(d) (directing that GVA motions be filed and heard in the circuit court when an abuse/neglect case is pending). Because no GVA motion was filed here, the § 48‑10‑502 thirteen factors were inapplicable.
Child’s Right to Continued Association – The Court relied on the doctrine that a child has a right to continued association with individuals with whom the child has formed a close emotional bond, including foster parents and, by extension, relative caregivers. See Syllabus Point 11 (in part), In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996); Syllabus Point 2, State ex rel. Treadway v. McCoy, 189 W. Va. 210, 429 S.E.2d 492 (1993).
Delineated Visitation—Not Held Hostage – In In re K.S., 246 W. Va. 517, 874 S.E.2d 319 (2022), the Court admonished against leaving visitation solely to a parent’s discretion in a way that could “hold hostage” a child’s relationship with a bonded caregiver. And in Matter of Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995), the Court directed circuit courts to inquire into the child’s bonds with foster caregivers and, if in the child’s best interests, to fashion a plan for continued association. These authorities favored crafting a minimally guaranteed, clearly defined schedule.
Standing and Intervention – The Court enforced strict limits on non‑party participation in abuse-and-neglect appeals. See In re H.W., 247 W. Va. 109, 875 S.E.2d 247 (2002) (non‑party foster parents could not appeal disposition); Syllabus Point 4 (in part), State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018) (intervening foster parents, unlike non‑intervenors, have full party rights). Relatedly, the confidentiality rule, W. Va. R. P. Child Abuse & Neglect Proc. 6a(b), barred the grandmother’s transcript request.
Venue Preservation – Venue in Kanawha County was proper under W. Va. Code § 49‑4‑601(a), and, in any event, no objection was preserved below.

Legal Reasoning

The Court’s analysis rests on the careful interaction of three pillars: the exclusivity of the GVA for grandparent‑initiated visitation claims, the independent best‑interests authority to preserve a child’s meaningful relationships formed during state involvement, and deference to the parental autonomy of a successfully reunited parent.

No GVA Motion, No § 48‑10‑502 Factors – The grandmother did not invoke the GVA. Therefore, the circuit court was not required (and indeed not permitted) to apply the GVA’s thirteen statutory factors that govern a grandparent’s petition for visitation. This foreclosed the grandmother’s appellate argument that the circuit court failed to consider those factors.
Independent Best‑Interests Authority to Preserve Bonds – Separate from the GVA, long‑standing West Virginia law recognizes a child’s right to continued association with significant caregivers if it is in the child’s best interests. That authority allowed the circuit court, at the point of reunification and dismissal, to craft a limited visitation regime for the relative caregiver who had provided care during the case.
Delineation Without Parental Displacement – Guided by In re K.S. and similar cases, the circuit court avoided a purely discretionary arrangement (which could become illusory), and instead guaranteed one week of summer visitation, plus the practical and meaningful “right of first refusal” whenever the father was out of town—a circumstance the record showed occurred frequently. At the same time, the court rejected an “every other weekend” and holiday rotation that would have functioned like a shared‑parenting timeshare and unduly intruded on the reunited father’s parental prerogatives.
Abuse‑of‑Discretion Review – Visiting schedules and custodial determinations receive substantial deference. On this record, there was no clear abuse: the plan delivered concrete, recurring contact designed around the father’s work patterns while preserving his constitutional autonomy as the custodial parent. The guardian ad litem and DHS supported the father’s plan. The Court thus affirmed.
Standing Limits and Preservation – The grandmother’s remaining arguments were either misdirected or not preserved:
- Challenges to the adequacy of DHS/CPS or the guardian’s investigations, and to the reunification disposition, were effectively attacks on the merits of dismissal and reunification—issues a non‑party (denied intervention) lacks standing to press on appeal.
- Alleged post‑order visitation violations and venue objections were not raised below and therefore could not be considered on appeal. See W. Va. R. App. P. 10(c)(7) (preservation requirement).
- As a non‑party in a confidential proceeding, the grandmother was not entitled to transcripts. See Rule 6a(b); the Supreme Court had also denied her transcript motions during the appeal in 2024.

Impact and Practice Implications

Although issued as a memorandum decision, In re B.N. provides pragmatic guidance for courts and practitioners navigating the sensitive transition from state custody back to a parent while preserving crucial child–caregiver bonds.

Two distinct pathways to grandparent/relative contact:
- GVA route: When a grandparent wants a fuller, rights‑based visitation order anchored in statutory factors, the exclusive mechanism is a motion under the GVA. Filing triggers the § 48‑10‑502 analysis and can support more structured schedules (holidays, weekends, etc.).
- Best‑interests bond‑preservation route: Even without a GVA motion, circuit courts may, upon dismissal/reunification, craft limited, delineated visitation to preserve the child’s bond with a relative caregiver formed during the case. The focus is child‑centered and narrow—not a back‑door to quasi‑custodial timesharing in tension with the reunited parent’s rights.
Delineated minimums matter – Courts should avoid leaving visitation wholly at a parent’s discretion in these contexts. Minimal guarantees (e.g., a week of summer time) plus a tailored mechanism (e.g., right of first refusal keyed to a parent’s work schedule) vindicate the child’s association interest without unduly burdening the custodial parent.
Standing is decisive – Relative caregivers/grandparents who want to litigate (and appeal) dispositive issues must seek and obtain intervention. Without intervenor status, their appellate challenges are limited to provisions that directly grant or restrict their own visitation rights; they cannot attack reunification, adjudication, or other dispositional rulings, nor can they obtain confidential transcripts.
Preservation is critical – Alleged noncompliance with a visitation order, venue challenges, or other procedural objections must be raised in the circuit court or they will not be considered on appeal.
“Right of first refusal” is a useful tool – While not codified, this device can meaningfully operationalize contact in a way that aligns with a parent’s work/life patterns and prioritizes the child’s continuity of care with familiar caregivers.
GAL and agency practice – The decision notes no fixed rule for how often a guardian ad litem must visit; adequacy is contextual. Practitioners should build a clear record on frequency, quality, and the child’s needs if they intend to challenge or defend the sufficiency of GAL or CPS efforts.

Complex Concepts, Simplified

Abuse and neglect proceeding: A court process addressing allegations that a child is abused or neglected. It can lead to temporary placement outside the home, services for the parent (an “improvement period”), and ultimately reunification or alternative permanency.
Post‑adjudicatory improvement period: A period during which a parent works a case plan to remedy conditions of abuse/neglect. Successful completion can lead to reunification.
Grandparent Visitation Act (GVA): The exclusive statute governing grandparent‑initiated visitation claims. Filing a motion under the GVA triggers a multi‑factor analysis. Without such a motion, GVA factors do not apply.
Child’s right to continued association: A judge‑made doctrine recognizing that children benefit from continued contact with bonded caregivers (including foster and relative caregivers) when it is in their best interests.
Right of first refusal: A visitation clause giving a noncustodial caregiver the opportunity to care for the child when the custodial parent is unavailable (e.g., due to work travel), rather than using daycare or other alternatives.
Intervention and standing: “Intervention” makes a person a party to the case. Without it, a caregiver has limited ability to litigate or appeal. “Standing” refers to a legal stake in the matter; non‑intervenors typically cannot challenge case dispositions or obtain confidential records.
Abuse of discretion: A deferential appellate standard; a court’s visitation/custody decision will be reversed only if it is clearly unreasonable, arbitrary, or based on a misapplication of law.

Conclusion

In re B.N. reinforces a balanced framework for post‑reunification contact between children and relative caregivers. When a grandparent does not invoke the Grandparent Visitation Act, a circuit court still has authority—grounded in the child’s best interests and the child’s right to continued association—to craft limited, delineated visitation to preserve meaningful bonds formed during state involvement. But that authority is not a shortcut to shared‑parenting arrangements; the reunited parent’s autonomy remains paramount. The Court’s affirmance underscores deference to trial‑level discretion, the importance of crafting at least minimal guaranteed contact to avoid illusory visitation, and the strict standing and preservation rules that control non‑intervenor caregivers’ appellate rights. For practitioners, the decision offers a practical roadmap: if robust, enforceable grandparent visitation is the goal, file a GVA motion and seek intervention early; if bond‑preservation is the immediate concern at dismissal, propose tailored, delineated terms—such as a right of first refusal—that fit the family’s realities while honoring the primacy of reunified parental custody.