IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2021 Term

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No. 20-0037

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IN RE Grandparent Visitation of L.M., A.M., E.M., J.M., B.M., and S.M.

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Appeal from the Circuit Court of Nicholas County

The Honorable Richard A. Facemire, Judge

Civil Action No. 18-D-186

AFFIRMED

____________________________________________________________

Submitted: March 24, 2021

Filed: June 8, 2021

Todd A. Kirby, Esq.

D. Allan Martin, Esq.

Kirby & Ashley, L.C.

Beckley, West Virginia

Counsel for Petitioner

Julia R. Callaghan, Esq.

Callaghan & Callaghan, PLLC

Summersville, West Virginia

Guardian ad Litem for the Children

Jefferson L. Triplett, Esq.

George R. Triplett, Esq.

Triplett & Triplett L.C.

Elkins, West Virginia

Counsel for Respondents

JUSTICE ARMSTEAD delivered the Opinion of the Court.

JUSTICE WOOTON concurs and reserves the right to file a concurring opinion.

CHIEF JUSTICE JENKINS dissents and reserves the right to file a dissenting opinion.

JUSTICE HUTCHISON dissents and reserves the right to file a dissenting opinion.

FILED

June 8, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

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. “An appellant must carry the burden of showing error in the judgment 

of which he complains. This Court will not reverse the judgment of a trial court unless error 

affirmatively appears from the record. Error will not be presumed, all presumptions being 

in favor of the correctness of the judgment.” Syllabus Point 5, Morgan v. Price, 151 W.

Va. 158, 150 S.E.2d 897 (1966).

3. “‘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[labus] P[oint] 3, Lindsie D.L. v. Richard 

W.S., 214 W. Va. 750, 591 S.E.2d 308 (2003).” Syllabus Point 2, Meagan S. v. Terry S., 

242 W. Va. 452, 836 S.E.2d 419 (2019).
ii

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

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).
1

Armstead, Justice:

V.Y.1 (“Petitioner”), the mother of the children at issue, appeals the Circuit 

Court of Nicholas County’s2 order affirming the family court’s order which crafted a 

reunification plan with the goal of allowing grandparent visitation to C.M. and D.M. 

(“Respondents”), the paternal grandparents of L.M., A.M., E.M., J.M., B.M., and S.M. 

(collectively, “the children”). 

Upon review of the record, hearing the arguments of counsel, and research

of the pertinent legal authorities, we conclude that Petitioner did not meet her burden to 

demonstrate error and we therefore affirm the circuit court. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner and L.C.M. were married and the children were born of their 

marriage. Sometime in late 2017 or early 2018, they separated and their final divorce 

decree was entered on June 29, 2018. As a result of that divorce, Petitioner was granted 

1

 As this case is concerned with minor children, we will follow our longstanding practice of identifying the parties by their initials. See, e.g., State v. Edward 

Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).

2

 By Administrative Order of this Court entered on October 2, 2019, the 

request for voluntary recusal by the Honorable Stephen O. Callaghan, Judge of the TwentyEight Judicial Circuit, was granted and the Honorable Richard A. Facemire, Judge of the 

Fourteenth Judicial Circuit, was assigned to the Nicholas County Circuit Court to preside 

over this matter.
2

full custody of the children and L.C.M. was granted supervised visitation. By request of 

Petitioner, visitation was supervised by L.C.M.’s parents, the Respondents. 

 During the visitation exchange on September 21, 2018, Petitioner’s father, 

the children’s maternal grandfather, delivered the children to a parking lot in Craigsville, 

West Virginia. L.C.M., along with his father, Respondent C.M., came at the appointed 

time to exchange the children. During that exchange, and in the presence of all the children, 

the maternal grandfather drew a handgun and shot L.C.M. L.C.M. died of his wounds at 

the scene. Thereafter, the children witnessed their maternal grandfather turn the gun on 

himself and commit suicide.

In the following weeks, there were two funerals. Petitioner did not allow the 

children to attend either the service for the maternal grandfather or the service for L.C.M. 

On October 5, 2018, one day prior to L.C.M.’s memorial service, Respondents filed their 

petition for grandparent visitation in family court and sought an ex parte order requiring 

the children to attend L.C.M.’s memorial service. The family court denied the ex parte 

relief, appointed a guardian ad litem for the children, and scheduled a hearing on the 

visitation petition for November 27, 2018. Due to a scheduling conflict, the matter was 

rescheduled for January 14, 2019. 
3

Prior to that hearing date, the guardian ad litem met with the children, the 

children’s therapists, Respondents, and Petitioner. On January 9, 2019,3 the guardian ad 

litem filed a comprehensive report4 recommending that Respondents be granted visitation

with the children. As the family court noted, “when the [guardian ad litem] filed her 

comprehensive report, all of the [children’s] counselors were in agreement as to the 

recommendation for the commencement of contact between [Respondents] and some of 

the minor children in a therapeutic setting.”

The hearing in this matter took place over a ten-hour period on May 15, 2019, 

during which the family court heard from thirteen witnesses, including the parties and the 

children’s therapists. The next day, the family court discovered that its recording system 

failed to memorialize the hearing. Thereafter, the family court sent a letter to all parties 

explaining the situation and informing the parties “that its ability to make findings of fact, 

conclusions of law and render a decision in this matter [was] not impacted.” A telephonic 

hearing was held on May 29, 2019, to discuss the lack of an appealable record and the 

3

 On the same day, Brandon S. Steele, Esquire, filed a notice of appearance 

and a motion to continue in the family court on behalf of Petitioner. Because Mr. Steele 

was a member of the West Virginia Legislature, pursuant to the provisions of West Virginia 

Code § 4-1-17 (2005), he could not be compelled to appear prior to the conclusion of the 

legislative session. Thereafter, the family court rescheduled this matter for a pretrial 

hearing on May 6, 2019, and a final hearing for May 15, 2019. Mr. Steele does not appear 

as counsel before this Court.

4

 The guardian ad litem’s report and her June 14, 2019 update were

incorporated by reference into the family court’s final order. 
4

parties agreed to submit proposed findings of fact and conclusions of law. The family court 

directed the guardian ad litem to submit in writing “updated findings/recommendations to 

her prior report, consistent with her in-court testimony.”

On July 8, 2019, the family court entered a substantial, highly detailed, and 

well-reasoned thirty-nine page order establishing a reunification therapy plan requiring a

reunification therapist to recommend to the family court whether to grant grandparent 

visitation to Respondents.5

 In that order, the family court applied the thirteen factors 

enumerated in West Virginia Code § 48-10-502 (2001) regarding grandparent visitation, 

found that Petitioner “is a fit parent, as defined by applicable law,” and gave special weight 

to Petitioner’s preference that no visitation be had between Respondents and the children. 

On the latter issue, the family court acknowledged the applicable law requiring it to afford 

special weight to Petitioner’s preference regarding visitation stating in its orders, “[t]he 

[c]ourt is required to give [the twelfth] factor ‘special weight.’ The [c]ourt believes that it 

has given this factor special weight in rendering a decision.” The family court proceeded 

to find that “[e]ven giving the twelfth factor ‘special weight,’ the [c]ourt finds by a 

preponderance of the evidence that the totality of the thirteen (13) factors weigh[s] in favor 

5

 This thirty-nine page order contains one hundred and forty-four numbered 

findings of fact, followed by nineteen numbered conclusions of law. Many of these 

findings and conclusions include multiple subparagraphs. This Court appreciates and 

acknowledges the family court’s efforts in thoroughly analyzing the facts and law in this 

and its subsequent order.
5

of a grant of reasonable grandparent visitation.” 6

 Importantly, the family court also found 

that grandparent visitation was in the best interest of the children and that it would not 

substantially interfere with the parent-child relationship. 

As a part of its findings in its July 8, 2019 order, the family court established 

a visitation schedule that detailed the responsibilities of the parties. In that schedule, the 

family court required joint therapy sessions between Respondents and the children, and 

required Petitioner to participate in therapy sessions with the children.

7 The family court 

further adopted a graduated schedule starting with supervised visits with the children which

would progress into unsupervised overnight visits and visitation during the children’s 

Christmas vacation from school, culminating in a full week of visitation during summer 

recess from school. Importantly, the family court twice included specific8 provisions 

allowing for immediate review of its order:

If, any time after the first therapeutic family session, 

[Petitioner] has a good faith belief that any of the children are 

adversely and/or negatively affected by the visit to the point 

that it is detrimental to their well-being, counsel for [Petitioner] 

6

 “[T]he Legislature has gone to great lengths to enumerate the factors listed 

in W. Va. Code § 48–10–502. These factors should be clearly addressed in any family court 

order granting grandparent visitation rights.” Turley v. Keesee, 218 W. Va. 231, 234, 624 

S.E.2d 578, 581 (2005).

7

 The first two joint sessions were to be with L.M. only. B.M. and S.M. were

to be added for the third session, while J.M. and E.M. were included in the fourth. 

Provisions were made to add A.M. to the sessions when counselors “determine[ed] the 

pace at which A.M. will be included.”

8 The two provisions differ in only minor respects. The substance of the two 

admonitions is exactly the same. We quote the first here.
6

may file a [m]otion detailing the same and the [c]ourt will 

schedule a prompt telephonic hearing. If a [m]otion is filed, all 

further therapeutic family sessions will be delayed pending a 

hearing.

The July 8, 2019 order also included a clear statement addressing the failure 

of the family court’s recording system by granting all parties the right to seek 

reconsideration of its order. Specifically, the family court stated:

Due to the lack of an appealable record, the [c]ourt will 

grant a hearing to any party upon the filing of a proper motion 

for reconsideration, for the purpose of making a record and 

presenting any testimony or evidence presented at the hearing 

on May 15, 2019.

(emphasis added).

After the family court ruled, Petitioner filed objections and moved for 

reconsideration. The family court heard testimony on the motion for reconsideration on 

August 26, 2019. However, instead of making a record of the evidence missing from the 

May 15, 2019 hearing transcript, Petitioner offered the testimony of the children’s 

therapists, Mary Lilly (counselor for A.M. and E.M.), Brittany Henderson (counselor for 

J.M.), and Stephani Trent (counselor for L.M.) to explain why they no longer

recommended grandparent visitation. In its September 19, 2019 order from this sevenhour hearing, the family court observed that in contrast to the initial report from the 

guardian ad litem, “after hearing further testimony from all of the counselors . . all three . 

. . clearly recommend against visitation at this time.” In that order, the family court granted,

in part, the motion for reconsideration. This seven-page order made certain changes to the 
7

findings contained in the July 8, 2019 order. Particularly, the September 19, 2019 order 

made significant changes to the previously established visitation schedule. Instead of 

establishing grandparent visitation with a regimented schedule, this order required the 

Respondents and the children to undergo reunification counseling and that future visitation 

with L.M., J.M., B.M. and S.M. “shall be carried out in accordance with the 

recommendations of the reunification therapist.” The family court further stated, “the 

Court will defer to the discretion and recommendation of the reunification therapist as to 

if and when and [sic] joint therapy sessions with the minor children and [Respondents] are 

proper. The [family court] will schedule review hearings to monitor the minor children’s 

progress.” The family court also excluded A.M. and E.M. from the reunification therapy, 

allowing for future hearings on the question of visitation between those children and 

Respondents. Therefore, in modifying its July 8, 2019 order, the family court changed 

course and no longer ordered immediate grandparent visitation but established a 

therapeutic process, which could possibly lead to grandparent visitation if recommended 

by the reunification therapist. These two orders, taken together, constituted a roadmap by 

which eventual grandparent visitation could be achieved. They also allowed Petitioner the 

opportunity to request a halt of the reunification process by filing a good faith motion.

Petitioner appealed the decision of the family court to the circuit court, which 

affirmed, stating:

The [f]amily [c]ourt conducted a meticulous analysis of 

the thirteen (13) statutory factors to consider before granting 

grandparent visitation, as set forth in [West Virginia] Code § 
8

48-10-502. The [f]amily [c]ourt did give special weight and 

consideration to [Petitioner’s] preference that grandparent 

visitation not occur. However, in considering that factor, the 

[f]amily [c]ourt is not obligated to ignore all of the other factors 

present, and should consider the totality of the circumstances. 

The [f]amily [c]ourt found that there were eight (8) factors in 

favor of the visitation. Furthermore, the [f]amily [c]ourt took 

great pains to establish a counseling schedule for the children 

to facilitate the reunification visits with [Respondents]. The 

[f]amily [c]ourt made special provisions to accommodate the 

different needs of each individual child, and the [f]amily 

[c]ourt set out a process for the [f]amily [c]ourt and the 

[g]uardian ad [l]item to continue to monitor the progress of the 

children and the visits. The [c]ourt finds that the [f]amily 

[c]ourt did not err and did not abuse its discretion in its 

application of the law to the unique facts and circumstances of 

this case. 

It is from the entry of the circuit court’s December 19, 2019 order affirming 

the family court that Petitioner appeals.

II. STANDARD OF REVIEW

Review of family court decisions are governed by the following:

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). Along with this 

standard comes the fundamental principle that Petitioner must point this Court to an error 

in the record to entitle her to relief. Rule 7(d) of the West Virginia Rules of Appellate 

Procedure requires that “petitioner shall prepare and file an appendix containing ... [t]he 
9

judgment or order appealed from, and all other orders applicable to the assignments of error 

on appeal,” “[m]aterial excerpts from official transcripts of testimony or from papers in 

connection with a motion,” and “[o]ther parts of the record to which the parties wish to 

direct the Court’s attention.” W. V. R. App. P. 7(d) (emphasis added). 

This requirement is expounded upon in Rule 10(c)(7) of the West Virginia 

Rules of Appellate Procedure which requires that “[t]he argument must contain appropriate 

and specific citations to the record on appeal, including citations that pinpoint when and 

how the issues in the assignments of error were presented to the lower tribunal.” Under this 

Rule, “[t]he Court may disregard errors that are not adequately supported by specific 

references to the record on appeal.” As we have previously held,

An appellant must carry the burden of showing error in 

the judgment of which he complains. This Court will not 

reverse the judgment of a trial court unless error affirmatively 

appears from the record. Error will not be presumed, all 

presumptions being in favor of the correctness of the judgment.

Syllabus Point 5, Morgan v. Price, 151 W. Va. 158, 150 S.E.2d 897 (1966). Further, we 

“will not consider an error which is not properly preserved in the record nor apparent on 

the face of the record.” Syllabus Point 4, State v. Browning, 199 W. Va. 417, 485 S.E.2d 1 

(1997).

In this case, Petitioner’s citations to the record overwhelmingly consist of 

citations to orders and pleadings filed below. As noted above, there was no record of the 

May 15, 2019 family court hearing. However, the family court gave the parties the 
10

opportunity to request another hearing “for the purpose of making a record and presenting 

any testimony or evidence presented at the hearing on May 15, 2019.” No party took the 

family court up on that extraordinary offer. Petitioner did ask for and receive a hearing on 

August 26, 2019, on her motion for reconsideration. However, the only testimony offered 

by Petitioner at that hearing and available for this Court to review consists of testimony 

from the children’s therapists. Even after adducing this testimony, Petitioner does not cite 

to or quote any portion of their testimony in her brief. Instead, she places substantial 

reliance upon the family court’s orders despite having some record evidence to which she 

could point. 

Thus, Petitioner neither created a reviewable record for appellate review 

when the family court gave her the opportunity to do so nor did she point to any evidence 

adduced at the August 26, 2019 hearing in her filings with this Court. In fact, none of the 

testimony offered on August 26, 2019, provided any helpful insight into the relevant 

statutory factors. As noted throughout this opinion, that dearth of testimony makes it 

impossible for this court to find error and is fatal to Petitioner’s appeal. Nevertheless, given 

the gravity of the factual matters and to afford consideration of petitioner’s arguments 

which are not affected by the absence of a reviewable record, we will proceed to address 

petitioner’s assignments of error as asserted.
11

III. ANALYSIS

This matter contains some of the most heart-wrenching facts imaginable. Six 

innocent children witnessed their father and grandfather die in a most terrifying manner. 

At that moment, not only did the children lose their father but Respondents lost a son. With 

this devastating background, the family court was tasked with the difficult duty of weighing 

the interests of the children who have endured tremendous emotional hardship, their 

Petitioner mother who has strived to help them move forward from this trauma, and the 

Respondent grandparents who lost their son and all contact with the children.

As the family court found Petitioner to be a fit parent, we acknowledge that 

the United States Supreme Court has recognized that the rearing of children is of 

constitutional importance and that the preference of a fit parent regarding grandparent 

visitation must be given significant weight. See Troxel v. Granville, 530 U.S. 57 (2000). 

“‘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[labus] [Point] 3, Lindsie D.L. v. Richard W.S., 214 W. Va. 750, 591 

S.E.2d 308 (2003).” Syllabus Point 2, Meagan S. v. Terry S., 242 W. Va. 452, 836 S.E.2d 

419 (2019).

In discussing the rationale of Troxel, this Court has 

observed that the Supreme Court “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.” [Visitation of] Cathy L.[(R.)]M. v. Mark 
12

Brent R., 217 W. Va. 319, 327–28, 617 S.E.2d 866, 874–75 

(2005). 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 re Visitation of A.P., 231 W. Va. 38, 42, 743 S.E.2d 346, 350 (2013). 

At common law, “grandparents possessed no legal right to custody or 

visitation of a grandchild over the parent’s objection.” Petition of Nearhoof, 178 W. Va. 

359, 361, 359 S.E.2d 587, 589 (1987) (cleaned up). Thus, our Legislature has created a 

framework for grandparents to seek visitation. “The Grandparent Visitation Act, W. Va.

Code § 48–10–101 et seq., 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). Under this Act, a “grant [of] reasonable visitation to a grandparent”

shall be made when two elements are satisfied: 1) “upon a finding that visitation would be 

in the best interests of the child and [2)] would not substantially interfere with the parentchild relationship.” W. Va. Code § 48-10-501 (2006). “[I]f a preponderance of the 

evidence shows that visitation is in the best interest of the child,” grandparent visitation 

“shall be granted.” W. Va. Code § 48-10-702(a) (2001).

To weigh a petition for grandparent visitation, our Legislature adopted 

thirteen factors for courts to consider. See W. Va. Code § 48-10-502. These thirteen factors 

are:

(1) The age of the child;
13

(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 

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.

Id. 

This Court has held that those provisions contemplate the special weight that 

is constitutionally afforded a fit parent’s wishes in its twelfth factor. See State ex rel. 

Brandon L. v. Moats, 209 W. Va. 752, 763, 551 S.E.2d 674, 685 (2001). We are mindful 

that:
14

In an ideal world, parents might always seek to cultivate 

the bonds between grandparents and their grandchildren. 

Needless to say, however, our world is far from perfect, and in 

it the decision whether such an intergenerational relationship 

would be beneficial in any specific case is for the parent to 

make in the first instance. And, if a fit parent’s decision of the 

kind at issue here becomes subject to judicial review, the court 

must accord at least some special weight to the parent’s own 

determination. 

In re Visitation of A.P., 231 W. Va. at 42, 74. S.E.2d at 350 (citation omitted). Although 

we have never attached mathematical certainty to a fit parent’s parental preference, we 

have noted that “in light of the Troxel decision it is clear that the court must accord at least 

some special weight to the parent’s own determination provided that the parent has not 

been shown to be unfit.” Id. (internal quotation omitted). 

In this case, Petitioner first maintains that the family court and circuit court 

infringed on her constitutional right to rear her children by not properly applying “special 

weight” to her preference. We have previously ruled our Grandparent Visitation Act is 

constitutional. See, Syllabus Point 3, Brandon L. (“The West Virginia Grandparent 

Visitation Act, West Virginia Code §§ 48–2B–1 to –12 (1998) (Repl.Vol.1999) [recodified 

in West Virginia Code §§ 48-10-101 to 48-10-1201 in 2001], by its terms, does not violate 

the substantive due process right of liberty extended to a parent in connection with his/her 

right to exercise care, custody, and control over his/her child[ren] without undue 

interference from the state.”). However, that holding does not necessarily preclude us from 

finding the application of the statute unconstitutional as applied to the facts of a particular

case. See Troxel, 530 U.S. at 75 (Washington statute unconstitutional as applied). Thus, 
15

even though this Court has found the statute facially constitutional, it must still be applied 

in a constitutional manner to comply with Troxel’s mandate. 

To find such application constitutionally sound, three aspects of Troxel must 

be met. First, a parent’s “fundamental liberty interest” in the rearing of their children must 

be recognized because fit parents are presumed to act in the best interests of their children. 

Id., 530 U.S. at 65. Second, given a parent’s liberty interest in childrearing, the state will 

“normally” have no reason to question parental decisions. Id., 530 U.S. at 68. Troxel

emphasized that its ruling did not rest on a fit parent’s “normal” right to be free of state 

intervention in parenting decisions, but instead rested on a “combination of ... factors.” Id.

530 U.S. at 68, 71. Third, the United States Supreme Court established that a fit parent’s 

preference regarding grandparent visitation must be afforded the “special weight” we 

discussed above. Id. 530 U.S. at 70. The trial court in Troxel failed to give “at least some 

special weight” to the mother’s “determination of her daughters’ best interests.” Id. 530 

U.S. at 69. This “special-weight” prerequisite is codified as factor twelve of our 

Grandparent Visitation Act. As explained more fully below, the family court did place 

significant weight upon Petitioner’s preference and determined that this factor weighs 

against grandparent visitation. 

 Petitioner’s second argument is that the lower tribunals improperly applied 

the thirteen factors contained in West Virginia Code § 48-10-502. Specifically, Petitioner 

takes issue with the family court’s findings as to factors one, two, four, seven, nine, ten, 
16

eleven, twelve, and thirteen. Respondents and the guardian ad litem respond that the lower 

court gave special weight to Petitioner’s preference and that the thirteen factors were 

properly balanced. We reiterate, however, that this case has an inadequate record and the 

parties chose to forego the opportunity afforded them by the family court to supplement 

the record in light of the absence of a recording of the May 15, 2019 hearing. With rare 

exception, nearly all of Petitioner’s citations to the “record” are citations to the family 

court’s orders themselves. For this reason, we are disinclined to disturb the findings of the 

factfinder, particularly with regard to its credibility findings. We will now examine each 

of the thirteen factors, in turn.

A. The Uncontested Factors

The parties agree with the family court’s rulings on factors three, five, six, 

and eight. As there is no disagreement as to these factors, we will only briefly discuss them 

here.

1) Factor Three – The Relationship Between Petitioner and Respondents

Prior to the shooting there was a good relationship between Petitioner and 

Respondents. Nonetheless, because of the clear animus between Petitioner and 

Respondents duly noted in the family court’s order, the family court determined this factor 

weighed against visitation. 
17

2) Factor Five – Effect On Relationship Between Petitioner and The Children

The family court weighed this factor against visitation mainly based upon the 

concern that the animus among the parties would infect the relationship between Petitioner 

and the children. 

3) Factor Six – Custody and Visitation Between Divorced Parents

The family court found this factor to be neutral based upon the fact that 

L.C.M. is deceased. 

4) Factor Eight – Respondents’ Good Faith In Filing Visitation Petition

There was no dispute regarding the fact that the grandparent visitation 

petition was filed in good faith.

B. The Contested Factors

As for the remaining factors, Petitioner challenges the family court’s rulings, 

pointing this Court to the family court’s orders in support of her arguments. We cannot 

say that the family court erred if Petitioner does not point us to evidence that refutes the 

findings made by the family court. Petitioner’s failure to create a more comprehensive

record when offered the chance to do so, coupled with the lack of citation to evidence, 

leads us to conclude that the family court did not err. Bearing that in mind, we now 
18

examine the remaining factors, noting where Petitioner did not provide evidentiary support 

for meaningful review. 

1) Factor One – The Children’s Age

On September 21, 2018,9 the children were the following ages: L.M., ten 

years old, A.M., nine years old, E.M., eight years old, J.M., seven years old, B.M., three 

years old, and S.M., one year old.

The family court found that this factor weighed “more heavily in favor of the

four” oldest children having visitation with Respondents but “it is important that the 

younger siblings [B.M. and S.M.] be included in any visitation involving their siblings.” 

Petitioner argues that because the children are of an age that they should be allowed to 

express their own preferences, the family court erred by not giving any consideration to 

their preferences, and that the age of the two youngest children militates against visitation. 

Thus, Petitioner contends, this factor should be weighed against visitation. In support of 

this argument, Petitioner cites only to two exhibits10 in the record that are not orders or 

9

 This date is significant in that it is the date that the shootings took place 

and is the last date that Respondents saw the children. The instant petition was filed a mere 

fourteen days later.

10 These two exhibits are: 1) A Treatment Summary for L.M. dated May 8, 

2019, and attached as Exhibit 1 to the guardian ad litem’s disclosure of documents and 2) 

A Treatment Summary for J.M. dated November 28, 2018, and attached as Exhibit 10, to 

the guardian ad litem’s report. Both documents were attached to pleadings below.
19

pleadings. Neither of these exhibits demonstrate the family court erred. Thus, we cannot 

conclude that the family court was wrong in weighing this factor in favor of visitation. 

2) Factor Two – The Relationship Between The Children and Respondents

The family court found this factor to weigh in favor of visitation. Similar to 

the first factor, the older children had a more substantial relationship with Respondents 

than the younger children. L.M. lived with Respondents on two occasions and most of the 

children lived with them at least once.

11 Respondents served as babysitters for all the 

children numerous times over the better part of a decade. 

Petitioner argues that although Respondents babysat the children, such 

babysitting was sporadic. Petitioner further argues that “the lack of communication”

between Respondents and the children since this litigation ensued weighs against visitation. 

Thus, Petitioner urges, it was error to weigh this factor in favor of visitation.

In support of this argument, Petitioner again points to no evidence to support 

her position. Every citation to the record relating to this point is to orders or pleadings. It 

11 The July 8, 2019 family court order indicates that L.M. lived with 

Respondents for approximately two years after he was born in 2007. Specifically, when 

the other children resided with Respondents is unclear due to a lack of an appealable record 

from the May 15, 2019 hearing. However, the family court specifically found that L.M. 

“lived in [Respondents’] home on two (2) occasions” and that “most of the children lived 

with them on at least one occasion.” Petitioner could have clarified this issue during the 

August 26, 2019 hearing, but did not.
20

would have been a simple task to call a witness at the August 26, 2019 hearing to create a 

record regarding the relationship between the children and Respondents. Yet, Petitioner 

chose to focus solely upon the testimony of the children’s therapists at that hearing and 

does not point us to anything specifically within that testimony to support Petitioner’s 

position. The findings and conclusions of the family court were not effectively challenged

by Petitioner. 

Thus, we cannot say that the family court was incorrect in weighing this 

factor in favor of visitation. The family court found that Respondents’ relationship with 

the children was shown to include periods of co-habitation and serving as primary 

babysitters and Petitioner did not point to record evidence to refute those findings.

3) Factor Four – Time From Contact Between The Children and Respondents

There has been no contact between the children and Respondents since 

September 21, 2018. Respondents filed their visitation petition only fourteen days later. 

Included with the visitation petition was an ex parte request for the children to attend 

L.C.M.’s memorial service, which was denied by the family court. Essentially, the family 

court found that delays caused by the process should not be attributable to any action or 

inaction by Respondents and weighed this factor in favor of visitation. Petitioner argues

that there has been a significant period since Respondents last saw the children and that 

this factor weights against visitation.
21

In the matter of Michael C. v. Teressa D., No. 13-1077, 2014 WL 4930191 

(W. Va. Oct. 2, 2014) (memorandum decision), the adoptive parents of the grandchildren 

caused the matter to remain in litigation for much longer than necessary. See id. at *5. 

Additionally, the circuit court failed to timely enter orders. See id. Ultimately, this Court 

found that delays that were caused by a party or the court were not attributable to the 

grandparents when considering this factor. See id. Although there is no evidence here that 

any party was intentionally delaying the family court proceeding or that the family court 

was slow to rule, we agree with the principle set forth in Michael C. that ongoing litigation 

which “contributed to the lack of . . . grandparent visitation,” Id., should not be attributed 

to Respondents. Thus, the family court correctly allocated this factor in favor of visitation.

4) Factor Seven – Time Available to The Children and Petitioner

The family court found the time available to the children and Petitioner to be 

neutral but found such availability should be considered in fashioning visitation. Petitioner 

argues that this factor should have weighed against visitation as there are many activities, 

both school and extracurricular, that were not properly considered by the family court. 

Petitioner also urges that the amount of notice needed for work schedules and the distance 

and time associated with potential visitation should have tilted this factor against visitation.

Again, Petitioner points to nothing in the record to support this argument. 

Neither letters between counsel nor the orders and pleadings filed below constitute 

evidence to refute the family court’s findings. Petitioner could have offered testimony on 
22

this subject at the August 26, 2019 hearing but did not. Thus, we cannot conclude that the 

family court erred in finding this factor as neutral.

5) Factor Nine – Abuse by Respondents

There were no substantiated reports of Respondents performing, procuring, 

assisting, or condoning any abuse or neglect on the children found by the family court. 

There were allegations that Respondents and L.C.M. were “mean” to the children. 

However, during L.M.’s first meeting with the guardian ad litem he made unsolicited 

statements to the guardian ad litem that the other children were going to fabricate abuse 

allegations. The other children did thereafter allege that they had been abused by 

Respondents. 

Petitioner argues that there were allegations of abuse by Respondents and 

that Respondents “unfairly attempt[ed] to villainize” Petitioner which were both 

overlooked by the family court. Thus, Petitioner contends this factor weighs against 

visitation.

What Petitioner is essentially arguing is that the family court improperly 

weighed the credibility of the witnesses before it. Again, to refute this finding, Petitioner 

had the opportunity to offer testimony to establish any such abuse at the August 26, 2019 

hearing. Instead, Petitioner merely cites to the family court’s order. Such argument is 

insufficient to establish error since the family court was the trier of fact and had to weigh 
23

the credibility of the allegations made by the children with the statement of L.M. See State 

v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) (“An

appellate court may not decide the credibility of witnesses or weigh evidence as that is the 

exclusive function and task of the trier of fact.”). Thus, we cannot conclude that the family 

court erred as to this factor.

6) Factor Ten – The Children Residing With Respondents

It was found by the family court that L.M. lived with Respondents on two 

occasions and most of the remaining children lived with Respondents on at least one 

occasion. Petitioner essentially argues that the times were itinerant and that the younger 

two children did not spend as much time residing with Respondents as the older children. 

Petitioner contends that the finding by the family court that this factor weighs in favor of 

visitation was erroneous and that it actually weighs against visitation.

Once again, Petitioner only directs us to orders and pleadings to support this 

argument. As in our discussion above, Petitioner could easily have offered evidence at the 

August 26, 2019 hearing to establish precisely when the children did or did not reside with 

Respondents. Petitioner’s argument requires specificity, but none is offered. Based upon 

that, we cannot say that the family court erred in weighing this factor in favor of visitation.
24

7) Factor Eleven – Respondents as Significant Caretaker

The family court found Respondents provided care for the children whenever 

needed, with two small windows of time as exceptions, and the children lived with 

Respondents as noted in the factor ten analysis. Thus, the family court found this factor to 

weigh in favor of visitation. Petitioner argues that occasional babysitting does not rise to 

the level of a significant caretaker but offers no evidence to refute the family court’s 

findings. 

Because Petitioner again only cites to the findings of the family court and 

points to no specific testimony to refute the family court, we believe the family court 

correctly allocated this factor in favor of visitation. The family court found that 

Respondents regularly babysat the children for the better part of a decade, that the children 

lived with Respondents for varying periods of time, and that after Petitioner and L.C.M. 

divorced, Respondents were supported by Petitioner as the party to supervise the children’s 

visitation with L.C.M. Petitioner cites nothing to refute these findings.

8) Factor Twelve – Petitioner’s Preference

As discussed above, this factor must be given special weight and we believe 

that the family court afforded such weight. First, we note that Petitioner12 stated early on 

12 We commend Petitioner on her efforts to protect the children considering

the tragedy that they witnessed. In the face of extreme adversity, her efforts demonstrated 

(continued . . .)
25

in the proceedings that she was not against visitation. She clearly communicated to the 

guardian ad litem that she believed the children should have visitation with Respondents 

when they are ready and she allowed a letter from Respondents to be read to the children 

during a therapy session. She also purchased cell phones for the older children and 

programmed Respondents’ phone numbers into them to allow the children to contact 

Respondents whenever they wanted. In fact, while L.C.M. was still living, Petitioner had 

no problems with allowing Respondents to babysit the children and she insisted 

Respondents supervise L.C.M.’s visitation with the children. 

Later in the proceeding, Petitioner changed her position and clearly espoused 

that she wanted Respondents to have no visitation with the children. Based upon this 

change in position, the family court placed significant weight upon Petitioner’s change of 

mind and found that this factor weighed against visitation. The parties agree that this factor 

weighs against visitation. However, Petitioner vehemently argues that the family court did 

not accord this factor the “special weight” it requires. 

It is clear to us that the family court did attach the special weight required by 

Troxel to Petitioner’s preference but, nonetheless, ultimately found in favor of 

Respondents. As we have said:

unmatched love and compassion for the children. Following the shooting, she immediately 

enrolled them in therapy sessions and has strongly advocated for them throughout the 

process. Our affirmance of the lower tribunals should not in any way negatively reflect 

upon Petitioner. 
26

A fundamental principle, properly gleaned from the 

scholarly writings and legal opinions reviewed by this Court, 

is that the pronouncements of Troxel do not predispose every 

case to an ultimate determination favoring the natural parent in 

a complete and conclusive manner. An assessment of the 

specific circumstances of each case is still required, and while 

the reviewing court must accord special weight to the 

preferences of the parent, the best interests of the child are not 

to be ignored and must be included as a critical component of 

the dialogue regarding visitation or custody.

In re K.H., 235 W. Va. 254, 265, 773 S.E.2d 20, 31 (2015) (internal footnote omitted).

Thus, we believe the family court did properly place significant weight upon

this factor. In its order, it stated that “[t]he [c]ourt believes it has given this factor special 

weight in rendering a decision” and “[e]ven giving the twelfth factor ‘special weight,’ the 

[c]ourt finds by a preponderance of the evidence that the totality of the thirteen (13) factors 

weigh in favor of a grant of reasonable grandparent visitation.” 

Further, in its September 19, 2019 order, the family court modified the

original visitation schedule established in its July 8, 2019 order. As a result of Petitioner’s 

concerns, instead of a graduated visitation schedule as originally crafted, the family court 

adopted reunification therapy as the keystone to allowing future visitation. Additionally, 

the family court afforded the reunification therapist great deference in making 

determinations regarding the progress of reunification. These changes clearly demonstrate 

that the family court accorded special weight to Petitioner’s preference as required under 
27

Troxel by not ordering unfettered grandparent visitation but requiring a reunification 

therapist to determine if such visitation could be effectively accomplished.

9) Factor Thirteen – Other Relevant Factors In Best Interest of The Children

The family court found this factor to weigh in favor of visitation. This 

finding stems from the family court’s concern that Petitioner would never encourage the 

children to have visitation with Respondents. Further, given the acrimonious relationship 

between Petitioner and Respondents, the family court doubted the children would ever feel 

safe in expressing a desire for visitation. Thus, the family court found that in the best 

interest of the children, this factor weighed in favor of visitation. 

Petitioner essentially contends that these findings tread into Troxel territory 

and that, because Petitioner does not want visitation, she is under no obligation to 

encourage the children to engage in it. However, this factor is for the family court to weigh 

information through the prism of what is in the best interest of the children and Petitioner 

points to nothing but the family court’s orders for her position. Given that, we cannot say 

that the family court erred, and we concur that this factor weighs in favor of visitation.

C. Testimony of The Children’s Therapists – August 26, 2019

Finally, we address Petitioner’s argument regarding the testimony of the 

children’s therapists that the children do not want to visit with Respondents and that it was 

their opinion that grandparent visitation was not in the children’s best interest. We agree 
28

with Petitioner that this testimony was relevant. However, as noted above, Petitioner did 

not point to the actual testimony gleaned from the therapists at the August 26, 2019 hearing 

but instead directed us to the findings in the family court’s orders. Further, Petitioner has 

not pointed us to where in the Legislative framework the testimony of the therapists should 

be weighed. 

It is clear that the family court gave serious and thoughtful consideration to 

the therapists’ opinions. In fact, the family court used the therapists’ testimony as a basis

to modify the visitation plan from a regimented schedule to one in which the determination 

of when, if ever, visitation would occur hinged upon the recommendation of the 

reunification therapist. In its September 19, 2019 order, the family court required 

Respondents and the children to undergo reunification counseling. The requested 

grandparent visitation would only commence “in accordance with the recommendations of 

the reunification therapist.” The family court deferred to the expertise of the reunification 

therapist as to when joint therapy would commence and notified the parties of its intent to 

conduct review hearings to monitor progress. Finally, the order excluded A.M. and E.M.

from the sessions, deferring any decision regarding visitation between them and 

Respondents for another time. We believe the family court gave careful consideration to 

the concerns of the children’s therapists and responded to those concerns to ensure the 

children would not be subjected to grandparent visitation until recommended by the 

reunification therapist.
29

Thus, the family court found, and we agree, that factors one, two, four, eight, 

nine, ten, eleven, and thirteen weigh in favor of a grant of grandparent visitation. The sixth

and seventh factors were neutral. Factors three, five, and twelve weigh against a grant of 

grandparent visitation. Therefore, the family court found eight factors were in favor of 

visitation, two were neutral, and three were against, including the twelfth, which it gave 

special weight. We have previously “emphasize[d] that the objection of a parent would 

not serve to defeat a grandparent’s attempt to seek visitation in every instance.” Visitation 

of Cathy L.(R.)M. v. Mark Brent R., 217 W. Va. 319, 328, 617 S.E.2d 866, 875 (2005)

(footnote omitted). This case represents one of those instances where weighing the thirteen 

factors tipped the balance in favor of a reunification plan that could ultimately lead to 

visitation. We believe Petitioner’s failure to cite to record evidence in support of her 

position leads us to only one logical conclusion – that she failed to meet her burden of 

showing the judgment below was erroneous. The family court’s order affords Petitioner’s 

preference against visitation special weight in accordance with the holding in Troxel. 

Moreover, the family court’s September 19, 2019 order does not immediately grant 

grandparent visitation but instead requires reunification therapy, gives great deference to 

the reunification therapist to determine the course of reunification, allows for an immediate 

hearing if there is any negative impact on the children, and provides for review hearings to 

monitor the children’s progress. Therefore, we cannot conclude that the family court erred.
30

IV. CONCLUSION

For the foregoing reasons, we affirm the circuit court’s December 19, 2019 

order affirming the family court’s establishment of reunification therapy as a means to 

provide for future grandparent visitation.

Affirmed.