        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 January 2014 Term
                                                                 FILED
                                                              June 17, 2014
                                     No. 13-0695              released at 3:00 p.m.
                                                              RORY L. PERRY II, CLERK
                                                            SUPREME COURT OF APPEALS
                                                                OF WEST VIRGINIA



                                 ALYSSHA R.,
                           Respondent Below, Petitioner


                                         V.


                                  NICHOLAS H.,
                           Petitioner Below, Respondent



                 Appeal from the Circuit Court of Mineral County

                          Honorable Phil Jordan, Judge

                            Civil Action No. 12-D-151


                         REVERSED AND REMANDED



                               Submitted: June 11, 2014
                                 Filed: June 17, 2014

Bruce Perrone                                             Nicholas T. James
Legal Aid of West Virginia                                James Law Firm PLLC
Charleston, West Virginia                                 Keyser, West Virginia
and                                                       Guardian ad litem for the
Matthew A Jividen                                         minor children
Legal Aid of West Virginia
Martinsburg, West Virginia
Attorneys for the Petitioner

The Opinion of the Court was delivered PER CURIAM.
                             SYLLABUS BY THE COURT




              1.       “In reviewing a final order entered by a circuit court judge upon a

review of, or upon a refusal to review, a final order of a family court judge, we review the

findings of fact made by the family court judge under the clearly erroneous standard, and the

application of law to the facts under an abuse of discretion standard. We review questions

of law de novo.” Syllabus, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).



              2.      “The Grandparent Visitation Act, W. Va. Code § 48–10–101 et seq.

[2001], is the exclusive means through which a grandparent may seek visitation with a

grandchild.” Syllabus point 1, In re Hunter H., 231 W. Va. 118, 744 S.E.2d 228 (2013).



              3.     “A trial court, in considering a petition of a grandparent for visitation

rights with a grandchild or grandchildren . . . shall give paramount consideration to the best

interests of the grandchild or grandchildren involved.” Syllabus point 1, in part, In re

Nearhoof, 178 W. Va. 359, 359 S.E.2d 587 (1987).



              4.    “The Due Process Clauses of Article III, Section 10 of the Constitution

of West Virginia and of the Fourteenth Amendment of the Constitution of the United States

protect the fundamental right of parents to make decisions concerning the care, custody, and


                                              i
control of their children.” Syllabus point 3, Lindsie D.L. v. Richard W.S., 214 W. Va. 750,

591 S.E.2d 308 (2003).




                                            ii

Per Curiam:

               This is an appeal by Alyssha R.1 (hereinafter “the Mother”) from the May 30,

2013, order by the Circuit Court of Mineral County, West Virginia. In that order, the circuit

court refused the Mother’s petition for appeal from the March 15, 2013, final order by the

Family Court of Mineral County.           Through those orders, the paternal grandparents

(hereinafter “grandparents”) were awarded visitation with the three minor children. The

Mother contends that the circuit court failed to comply with the West Virginia Grandparent

Visitation Act, W. Va. Code § 48-10-101 et seq. (hereinafter “the Act”). Upon a thorough

review of the appendix record, briefs of counsel,2 oral arguments before this Court, and

applicable precedent, this Court reverses the decision of the lower courts and remands this

case for entry of an order denying grandparent visitation rights to the grandparents.




       1
       Due to the facts of this case, we refer to the parties by their initials. See State ex rel.
W. Va. Dep’t of Human Servs. v. Cheryl M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182
n.1 (1987) (“We follow our past practice in juvenile and domestic relations cases which
involve sensitive facts and do not utilize the last names of the parties.”).
       2
        The Father appeared in the underlying family court proceedings; however, he failed
to appear in the Mother’s appeal to circuit court. Despite this Court’s order to participate in
the current appeal, the Father, likewise, makes no appearance before this Court. Moreover,
on February 11, 2014, this Court denied the grandparents’ motion to intervene and
additionally refused to address their motion to dismiss the instant appeal.

                                                1

                                             I.


                     FACTUAL AND PROCEDURAL HISTORY


              The Mother and Nicholas H. (hereinafter “the Father”) were married and had

three minor children: K.H., C.H., and J.H. (hereinafter “the children”). On September 28,

2012, the Mother and the Father were divorced by the Family Court of Mineral County, West

Virginia. In the final divorce order, the family court ordered that the parties share equal

custody of the children.



              On November 2, 2012, the Mother filed a formal “Notice of Relocation.”

However, later that same month, she moved to Tennessee prior to receiving court approval.

The Father’s counsel filed an objection to the relocation, and a hearing was held December

4, 2012.3 Ultimately, the family court denied the Mother’s request to relocate with the

children, and the Mother returned with the children to Mineral County, West Virginia.




       3
        The Mother testified that the move was to better her education and to insulate the
children from the Father’s drug addiction. Additionally, the Mother stated that the Father
had been aware since September 2012 of her intention to relocate to the Georgia/Tennessee
border area with the children and that he had agreed with the move. The Mother opined that
the Father’s current objection to the move was at the behest of his family. The Guardian Ad
Litem testified that the Father’s mother and aunt came to his office with concerns regarding
the Mother’s relocation. Thereafter, the Guardian Ad Litem attempted to contact the Father
to discuss the matter, but was unsuccessful.

                                             2

              The Mother appealed to the circuit court on December 7, 2012, and filed a

“Petition for Modification of Custody” wherein she alleged that the Father was a drug addict

and subjected the children to erratic behavior and dangerous situations, thus placing the

children’s well-being in jeopardy. The Father’s counsel filed a “Petition for Contempt and

Request for Emergency Hearing” with the family court on December 13, 2012, alleging that

the Mother had prevented visitation since November 1, 2012. A hearing was held on

December 20, 2012. The Mother attested that she did not comply with the scheduled

visitation because the Father’s drug addiction had worsened, as evidenced by the Father’s

multiple failures when drug tested pursuant to the court’s order. A “Temporary Order” was

entered by the family court on December 27, 2012, which found the Mother was not in

contempt and, further, ordered the Father to have no contact with the children until he passed

a drug test. At the end of the hearing, the Father’s counsel requested, without providing prior

notice thereof, that the Father’s parents be allowed visitation with the children during the

pendency of the Father’s lack of custody. The family court ordered that the grandparents

shall have an allocation of custodial responsibility with the children every other Saturday

from 9:00 a.m. to 5:00 p.m., as well as on Christmas Day from 2:00 p.m. to 6:00 p.m.4




       4
        The grandparents were not present in the courtroom, and they had not filed a petition
for grandparent visitation.

                                              3

              The Mother then appealed to the circuit court. On February 5, 2013, the circuit

court remanded the case to the family court on the following basis:

                      The Family Court entered its Order regarding relocation
              before the allegations of drug use on [the Father’s] part were
              substantiated and the custody allocation was temporarily altered.
              It is unclear from the record whether [the Mother] and the minor
              children have returned to Mineral County and whether [the
              Mother] continues to desire to relocate. . . . Due to the change in
              circumstances since the December 4, 2012, hearing this Court
              FINDS that remanding the case for further hearing is the most
              appropriate course of action.

The family court scheduled a hearing on remand for February 26, 2013, to address “any

unresolved issues[]” as ordered by the circuit court. The Mother filed a petition for contempt

based on the Father’s failure to undergo drug testing. Significantly, the Mother also accused

the grandparents of allowing the Father to have contact with the children in violation of the

family court’s prior order. One day prior to the hearing, on February 25, 2013, the

grandparents, through counsel, filed a “Petition to Intervene/Motion to Continue” alleging

that depriving the children of contact with the grandparents was not in the children’s best

interests because the children had spent a large percentage of their lives with the

grandparents. At the hearing, the Mother stated she was agreeable to the children visiting

with the grandparents, but that she would prefer to control the schedule. In his report, the

Guardian indicated that grandparent visitation was in the best interests of the children and

recommended fourteen days in the summer and other times as agreed upon by the parties.




                                              4

              As a result of the matters argued at the hearing, the family court entered a

“Final Order” on March 15, 2013. In that order, the family court denied the grandparents’

motions to intervene and continue; agreed that there was a substantial change in

circumstances in that the Father tested positive for opiates on multiple drug tests5 which

warranted a modification of the original parenting plan; and allocated sole custodial

responsibility for the children to the Mother. Further, the court continued the previously

ordered grandparent visitation arrangement of every other Saturday from 9:00 a.m. to 5:00

p.m.6




        5
        The family court found that the Father had tested positive on every drug test he had
taken since September 2012. It also was noted that the Father was visibly intoxicated, high,
or otherwise impaired at every court hearing he had attended. Thus, the family court found
that the Father’s drug usage rendered him incapable of exercising custodial time with his
children.
        6
         After the Mother’s petition for appeal to the circuit court was filed, but prior to the
circuit court’s entry of its order, on April 8, 2013, the children’s paternal grandparents filed
a “Petition for Contempt” against the Mother alleging that she had not complied with the
required grandparent visitation schedule and that she had relocated without court approval.
The matter was heard on July 18, 2013, by the family court and resulted in two orders issued
September 4, 2013. First, in the “Order of July 18, 2013,” the family court found the Mother
in contempt for failing to produce the children for visitation due to her relocation and
sentenced her to thirty days in jail with the opportunity to purge the contempt by presenting
the children for visitation with the grandparents from July 19 to July 30, 2013, from 9:00 a.m.
to 5:00 p.m. Second, in the “Final Order of August 14, 2013,” the family court again found
the Mother in contempt for violating the court’s previous order by relocating and allowed her
to purge the contempt by moving back to West Virginia’s Twenty-Third Family Court Circuit
until the relocation is settled. The Mother complied with the contempt orders.

                                               5

              The Mother appealed to the circuit court and asserted that the family court

erred in granting grandparent visitation;7 failed to follow the Mother’s wishes, despite the

fact she was the sole fit parent; and considered grandparent visitation without proper notice.

The circuit court refused the Mother’s appeal by order entered on May 30, 2013. In the

refusal order, the circuit court recognized that the Mother’s primary contention on appeal

before it was the issue of grandparent visitation.8 The circuit court, in its order that is the

subject of this appeal, found that the family court properly granted grandparent visitation

every other Saturday. The circuit court’s order recognized that

              [the Father] no longer possesses any custodial or visitation rights
              through which the [paternal] grandparents may see their
              [grand]children. [The Mother] argues that because [the Father]
              has appeared in the custody matter, the [paternal] grandparents
              have no further recourse to visitation. However, this Court will
              not require that [the Father] defend his parents’ claim, especially
              as he no longer possesses custodial or visitation rights of his
              own.




       7
        The “Final Order” contains no findings relating to how grandparent visitation would
serve the children’s best interests.
       8
      In the circuit court’s order that is on appeal to this Court, the lower court
acknowledged that

                     [the Mother] requests that this Court instruct the Family
              Court about when a parent with sole custodial allocation can
              relocate. The Family Court has not ruled on [the Mother’s] most
              recent relocation and this Court has no basis for review. Thus,
              this Court is not ruling on [the Mother’s] claims on the
              relocation matter.

                                              6

In doing so, the circuit court relied heavily on its conclusion that the Mother had agreed to

grandparent visitation during the December 20, 2012, temporary hearing. In that regard, the

circuit court order stated that “[d]ue to [the Mother’s] consent to allow the grandparents to

have visitation in the temporary hearing and her admission in her brief that she is willing to

let the children visit their paternal grandparents, this Court is REFUSING [the Mother’s]

Petition for Appeal.” The Mother now appeals to this Court.



                                              II.


                                STANDARD OF REVIEW


               This Court’s standard of review for appeals arising from family court decisions

is, generally, as follows:

                      In reviewing a final order entered by a circuit court judge
               upon a review of, or upon a refusal to review, a final order of a
               family court judge, we review the findings of fact made by the
               family court judge under the clearly erroneous standard, and the
               application of law to the facts under an abuse of discretion
               standard. We review questions of law de novo.

Syl., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004). Additionally, this case

requires analysis of a statute. In this regard, we specifically have held that “[i]nterpreting a

statute or an administrative rule or regulation presents a purely legal question subject to de

novo review.” Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va.

573, 466 S.E.2d 424 (1995). Mindful of these guidelines, we will consider the arguments

set forth by the parties.

                                               7

                                             III.


                                       DISCUSSION


              On appeal to this Court, the Mother asserts that the circuit court erred in

refusing her petition for appeal. While the Mother sets forth various assignments of error,9

the resolution of this case is controlled by the West Virginia Grandparent Visitation Act,

§ 48-10-101 et seq. In this regard, the Mother argues that, without a proper petition for

grandparent visitation, the family court acted outside of its jurisdiction in awarding such

visitation. Ultimately, the Guardian agrees with the Mother. The Guardian asserts that the

family court had jurisdiction to award visitation; however, the Guardian agrees with the

Mother that the visitation unduly interfered with her relationship with her children. Because

we determine that the grandparents lacked standing to petition for grandparent visitation, we

reverse the lower courts’ decisions that awarded visitation with the minor children to the

paternal grandparents and remand for entry of an order denying grandparent visitation.



              We recently reiterated that “[t]he Grandparent Visitation Act, W. Va. Code

§ 48–10–101 et seq. [2001], is the exclusive means through which a grandparent may seek

visitation with a grandchild.” Syl. pt. 1, In re Hunter H., 231 W. Va. 118, 744 S.E.2d 228

(2013). See also W. Va. Code § 48-10-102 (2001) (Repl. Vol. 2009) (“It is the express intent


       9
        Before this Court, the Mother sets forth several assignments of error. The manner
in which we decide this case disposes of our need to address the other issues asserted in this
appeal.

                                              8

of the Legislature that the provisions for grandparent visitation that are set forth in this article

are exclusive.”).



               Procedurally, a person wishing to invoke the visitation afforded under the Act

must do so through the filing of a motion or a petition. See W. Va. Code § 48-10-301 (2006)

(Repl. Vol. 2009) (“A grandparent of a child residing in this state may, by motion or petition,

make application to the circuit court or family court of the county in which that child resides

for an order granting visitation with his or her grandchild. (emphasis added)). The

requirement for the filing of a motion is addressed further in W. Va. Code § 48-10-401

(2009) (Repl. Vol. 2009):

                      (a) The provisions of this section apply to any pending
               actions for divorce, custody, legal separation, annulment or
               establishment of paternity.

                       (b) After the commencement of the action, a grandparent
               seeking visitation with his or her grandchild may, by motion,
               apply to the family 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.

(Emphasis added).



               In a case of this nature, the lower court must determine that the requirements

of the statute have been met, i.e., whether the grandparents meet the criteria necessary to

invoke the protections of the statute. See generally Mary Jean H. v. Pamela Kay R., 198

                                                 9

W. Va. 690, 482 S.E.2d 675 (1996) (per curiam) (discussing previous version of grandparent

visitation statute). In the presently pending appeal, the grandparents made no motion or

petition requesting grandparent visitation.10 In the absence of a motion or petition for

grandparent visitation, the family court exceeded its authority when it awarded visitation with

the minor children to the grandparents. Further, the circuit court continued the family court’s

legal error when it determined that the Mother’s acquiescence to visitation waived the

statutory requirement for a motion or petition by the grandparents.



                 Because there is a currently stayed grandparent visitation proceeding before

the family court,11 we not that assuming, arguendo, there had been a proper petition or

motion in the proceedings giving rise to the case sub judice, the grandparents still fail to meet

the standards necessary for an award of grandparent visitation. Specifically,

                        [i]f a motion for grandparent visitation is filed in a
                 pending action for divorce, custody, legal separation, annulment
                 or establishment of paternity pursuant to section 21-401, the
                 grandparent shall be granted visitation if a preponderance of the
                 evidence shows that visitation is in the best interest of the child
                 and that:

                               (1) The party to the divorce through which
                        the grandparent is related to the minor child has


       10
         Two months after entry of the final order in the family court, though, the
grandparents filed a “Petition for Grandparent Visitation.” The action was stayed pending
resolution of the instant appeal to this Court.
       11
            See note 10, supra.

                                                 10

                     failed to answer or otherwise appear and defend
                     the cause of action . . . .

W. Va. Code § 48-10-701 (2001) (Repl. Vol. 2009). In this case, the Father actually

appeared and responded in the commencement of the custody case. His participation

continued until the court stripped him of his custodial rights and responsibilities based upon

his increased illegal drug usage, which made it impossible for him to properly care for the

children. Thus, the grandparents cannot meet one of the threshold requirements of W. Va.

Code § 48-10-701 because the Father, who is the party through which they are related to the

minor children, answered and otherwise appeared and defended the cause of action.



              Additionally, our case law supports the requirement in W. Va. Code § 48-10­

701 that visitation must be in the children’s best interests. “A trial court, in considering a

petition of a grandparent for visitation rights with a grandchild or grandchildren . . . shall

give paramount consideration to the best interests of the grandchild or grandchildren

involved.” Syl. pt. 1, in part, In re Nearhoof, 178 W. Va. 359, 359 S.E.2d 587 (1987). While

the lower courts found that an award of grandparent visitation was in the best interests of the

children, there was no analysis or reasoning supplied in the orders to support this finding.

See W. Va. Code § 48-10-701 (stating best interests of children must be shown by

preponderance of evidence). See also W. Va. Code § 48-10-501 (2006) (Repl. Vol. 2009)

(“The circuit court or family court shall grant reasonable visitation to a grandparent upon a

finding that visitation would be in the best interests of the child and would not substantially

                                              11

interfere with the parent-child relationship.”). The lower courts’ orders completely failed to

set forth any analysis of the factors used to determine the best interests12 of the children. See


       12
         W. Va. Code § 48-10-502 (2001) (Repl. Vol. 2009) provides the following factors
to consider in determining the best interests of the children:

                      (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
                                                                                   (continued...)

                                               12

W. Va. Code § 48-10-801 (2001) (Repl. Vol. 2009) (“An order granting or refusing the

grandparent’s motion or petition for visitation must state in writing the court’s findings of

fact and conclusions of law.”).



                 Because of the lower courts’ desire to preserve grandparent visitation, the

Mother was precluded from relocating with the minor children out of state.13 While the

       12
            (...continued)

                  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;

                        (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.
       13
         In fact, the family court has issued two contempt orders against the Mother as a
result of her relocation and her failure to produce the children to the grandparents for
visitation. The family court allowed the Mother to purge herself of the contempt
determinations by presenting the children to the grandparents for twelve consecutive days of
visitation. The Mother was forced to move back from Georgia, and she, additionally, was
required to remain in the three-county area encompassed in the family court’s jurisdiction.
In doing so, the Mother was forced to quit her employment, remove the eldest child from
school, and discontinue the youngest child’s successful medical treatments. The focus of the
contempt orders was to preserve the children’s visitation with the grandparents-visitation that
was improper from the outset. As such, the contempt proceedings cannot be upheld. Syl.
                                                                                (continued...)

                                                  13

Mother was amenable to the children having visitation time with the grandparents, the

Mother desired control of the schedule. The applicable statute for relocation of a parent

supplies:

                     (b) Unless otherwise ordered by the court, a parent who
              has responsibility under a parenting plan who changes, or
              intends to change, residences for more than ninety days must
              give a minimum of sixty days’ advance notice, or the most
              notice practicable under the circumstances, to any other parent
              with responsibility under the same parenting plan. . . .

W. Va. Code § 48-9-403(b) (2005) (Repl. Vol. 2009). After the Father was stripped of his

custodial responsibilities, the Mother relocated to Georgia. Because there was no “other



       13
           (...continued)
pt. 3, in part, State ex rel. Askin v. Dostert, 170 W. Va. 562, 295 S.E.2d 271 (1982) (“Where,
however, the court or judge lacks jurisdiction, or is without power or authority to render the
order, refusal to comply with such order may not be punished as contempt.”).

        Nevertheless, this Court is concerned by the improper use of contempt orders to curtail
the Mother’s constitutional rights in regards to her children. Moreover, we are extremely
frustrated by the seeming inequities afforded the Mother as a party to the action and the
leniency accorded to the grandparents, who were not even parties to the case sub judice. The
family court was quick to hold the Mother in contempt, but failed to hold the grandparents
to the same standards. The Mother produced evidence to the family court that the
grandparents allowed the Father to have contact with the children during their visitation
times, despite the lower court’s ruling that the grandparents were to adhere to the conditions
set forth in the order. It is a misdemeanor offense for the grandparents to allow contact
between the children and their Father, who had been precluded visitation rights. See W. Va.
Code § 48-10-1201 (2001) (Repl. Vol. 2009) (“Any grandparent who knowingly allows
contact between a minor grandchild and a parent or other person who has been precluded
visitation rights with the child by court order is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in the county or regional jail not more than thirty days or fined not
less than one hundred dollars nor more than one thousand dollars.”). The family court utterly
failed to address the alleged failure of the grandparents to follow the court’s directive.

                                              14

parent with responsibility under the same parenting plan,” the Mother was not required to

give the notice required by W. Va. Code § 48-9-403(b). Thus, the lower courts erred in

applying the relocation statute to the Mother and restricting her ability to move with the

children as she saw fit.



              Finally, while all of the procedural and substantive errors in the lower courts’

proceedings are concerning, none is more troubling than the ultimate result of those errors:

the trampling of a fit mother’s parental rights. The right of a parent to make decisions

concerning the care, custody, and control of her children is among the most cherished

fundamental liberty interests. See Troxel v. Granville, 530 U.S. 57, 67, 120 S. Ct. 2054, 147

L.Ed.2d 49 (2000) (“The liberty interest at issue in this case – the interest of parents in the

care, custody and control of their children – is perhaps the oldest of the fundamental liberty

interests recognized by this Court.”). This Court also has recognized a parent’s constitutional

rights: “The Due Process Clauses of Article III, Section 10 of the Constitution of West

Virginia and of the Fourteenth Amendment of the Constitution of the United States protect

the fundamental right of parents to make decisions concerning the care, custody, and control

of their children.” Syl. pt. 3, Lindsie D.L. v. Richard W.S., 214 W. Va. 750, 591 S.E.2d 308

(2003).




                                              15

              Recently, this Court restated its long-standing principle that considerable

weight must be afforded to a fit parent’s decision-making authority, which precludes a court

from intervening in a fit parent’s exercise of parental discretion even on the basis of the

child’s best interests. Hunter H., 231 W. Va. 118, 744 S.E.2d 228. In Brandon L., this Court

held that courts must defer to the “preferences of the parent where there had been no showing

of unfitness with regard to that parent.” State ex rel. Brandon L. v. Moats, 209 W. Va. 752,

755, 551 S.E.2d 674, 677 (2001). Further, the Act explicitly states that “[t]he circuit court

or family court shall grant reasonable visitation to a grandparent upon a finding that visitation

would be in the best interests of the child and would not substantially interfere with the

parent-child relationship.” W. Va. Code § 48-10-501 (2006) (Repl. Vol. 2009).



              This Court has observed that the Troxel case “instructs that a judicial

determination regarding whether grandparent visitation rights are appropriate may not be

premised solely on the best interests of the child analysis.” Cathy L.M. v. Mark Brent R., 217

W. Va. 319, 327-28, 617 S.E.2d 866, 874-75 (2005) (per curiam). Rather, the evaluating

court “must also consider and give significant weight to the parents’ preference, thus

precluding a court from intervening in a fit parent’s decision making on a best interests

basis.” Id. In Troxel, the United States Supreme Court found that a statute violated the

substantive due process rights of a parent by allowing visitation rights, over parental

objection, even where such visitation served the best interests of the child. Troxel, 530 U.S.


                                               16

at 61, 120 S. Ct. at __, 147 L.Ed.2d 49.            The court ruled that the statute therein

unconstitutionally infringed upon a parent’s rights by failing to accord appropriate deference

to a parent’s decision. Like the mother in Troxel, the Mother in the case before this Court

did not oppose visitation altogether. Rather, she wanted to retain control over her schedule

and that of her children. Consent to visitation is not a blanket waiver to a parent’s

constitutionally protected interest to make decisions about his or her children. As it is

conceded that the Mother is a fit parent, she has a constitutionally protected right to make

decisions regarding the care, custody, and control of her children. Under the facts of this

case, those rights include the ability to make unfettered decisions regarding the location of

their residence when no other parent has custodial rights to the subject children.



                                             IV.


                                      CONCLUSION


              For the foregoing reasons, we reverse the May 30, 2013, order by the Circuit

Court of Mineral County, West Virginia, which refused the Mother’s petition for appeal from

the March 15, 2013, final order by the Family Court of Mineral County. This case is further




                                             17

remanded for entry of an order denying grandparent visitation rights to the grandparents.

Finally, in recognition of the restrictions that have been imposed upon the Mother as a result

of the lower courts’ improper rulings, we direct the Clerk of the Court to issue the mandate

in this case contemporaneously with this opinion.



                                                                   Reversed and Remanded.




                                             18

