Legal Question in Family Law in West Virginia

Re: custodial parent died

Unfortunately, given the facts your are describing, and the situation you are confronting, it looks like you will have to got to get a court order that compels the grandparents to release the children to you.

Several years ago the US Supreme Court, in Troxel v. Granville, made it clear that in a dispute between a parent and a "non-parent" (such as a grandparent or other relative), regarding custody and/or visitation, the rights of the parent have prcedence and take priority.

Absent some substantially compelling reason (meaning a whole lot more than merely the grandparents' opinion as to what is in the best interest of the children), an otherwise fit parent will not be denied the natural right of custody of his/her children, nor will that parent's decision regarding contact (vistitation) be overridden by a judge.

"Best interests of the child" is the standard used by judges in making custody and visitation decisions between parents (mom and dad). But it is NOT the standard used in making such decisions between a parent and a non-parent.

As a matter of law, with you now being the children's only parent, you have a "natural right" of custody of your children. The grandparents have no legal right to retain their physical custody without your consent and over your objection. What you now need is a Writ of Habeaus Corpus, or a Writ of Assistance (or such similar procedural device as is appropriate under the law of your state) that commands the grandparents to surrender the children to you (and authorizes the local sherriff to assist you, using force if necessary, to recover the children.

Best advice. GET A LAWYER... now. And I wish you all the best.

LAWRENCE D. GORIN

http://www.divorcesource.com/OR/pages/ldgorin.html

Law Offices of L.D. Gorin

521 S.W. Clay St., Suite 205

Portland, Oregon 97201

Telephone: 503.224.8884

Fax: 503.226.1321

E-mail: [email protected]