WHO ARE THE PARTIES IN A GRANDPARENT VISITATION CASE? PART TWO

April 18, 2012 § 1 Comment

In an earlier post we talked about how critical it is under the grandparent visitation statutes to join the natural parents.

The COA in Bolivar v. Waltman, decided April 3, 2012, raised the issue on its own and tossed out the appeal, vacating the trial court judgment in the process.

The natural parents of two minor children were divorced in 2006. The mother got custody and the father had visitation. In 2008, the Waltmans, who were maternal grandparents, got guardianship of the children due to both parents’ substance abuse. Initially the Waltmans afforded Bolivar, the paternal grandmother, the same every-other-weekend visitation that her son had enjoyed. Over time, however, the Waltmans began to curtail the time they allowed Bolivar, and she filed suit against the Waltmans in Jones County Chancery Court asking to be restored the full extent of her son’s visitation. The natural parents were not made parties.

Following a hearing the trial court granted Bolivar the same visitation that her son had under the original divorce judgment, and the Waltmans appealed.

In his opinion for the court, Judge Maxwell said:

¶6. Although neither party raises the issue of jurisdiction, we must do so on our own initiative. E.g., Michael v. Michael, 650 So. 2d 469, 471 (Miss. 1995) (citing Common Cause of Miss. v. Smith, 548 So. 2d 412, 414 (Miss. 1989); Cotton v. Veterans Cab Co., 344 So. 2d 730, 731 (Miss. 1977); Byrd v. Sinclair Oil & Refining Co., 240 So. 2d 623 (Miss. 1970)). Whether the chancery court had jurisdiction over a particular matter is a question of law, which the appellate court reviews de novo. In re Guardianship of Z.J., 804 So. 2d 1009, 1011 (¶9) (Miss. 2002) (citing Burch v. Land Partners, L.P., 784 So. 2d 925, 927 (¶7) (Miss. 2001)).

¶7. Mississippi Code Annotated section 93-16-5 establishes the necessary parties to a proceeding for grandparent visitation:

All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights shall be made parties to any proceeding in which a grandparent of a minor child or children seeks to obtain visitation rights with such minor child or children; and the court may, in its discretion, if it finds that such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child.

(Emphasis added). Section 93-15-107(1) lists as necessary parties in an action to terminate parental rights: “the mother of the child, the legal father of the child, and the putative father of the child, when known[.]” Miss. Code Ann. § 93-15-107(1) (Rev. 2004). Likewise, we find these same parties are also indispensable in a custody determination. See Miss. Code Ann. § 93-27-205 (Rev. 2004) (requiring service of process on “any parent whose parental rights have not been previously terminated” in interstate custody disputes); see also generally Deborah H. Bell, Bell on Mississippi Family Law § 19.01[3] (2005); cf. Smith v. Watson, 425 So. 2d 1030 (Miss. 1983) (finding a third-party with custody of a child is a proper party to a custody dispute between parents but not a necessary party).

¶8. We find section 93-16-5’s mandate clear and unambiguous that the natural parents whose parental rights have not been terminated must be parties to a grandparent-visitation proceeding. And we conclude that the requirement for the joinder of necessary parties in section 93-16-5 is jurisdictional. See Garrett v. Bohannon, 621 So. 2d 935, 937-38 (Miss. 1993) (holding similar mandatory “shall” language in Mississippi Code Annotated section 91-7-25 (Rev. 2004), which establishes necessary parties to will contest, is a jurisdictional requirement); In re Estate of McClerkin, 651 So. 2d 1052, 1058 (Miss. 1995) (holding trial court lacked jurisdiction over will contest because “necessary and proper parties were not before the court.”) (citations omitted). As the supreme court similarly found in Garrett, we find that to give validity and credence to the trial court’s judgment without joinder of necessary parties would undermine the legislative mandate in section 93-16-5. Garrett, 621 So. 2d at 937.

The court vacated the judgment and remanded the case to the chancery court for further proceedings.

Earlier this year, an astute lawyer raised the non-joinder of a natural parent as a defense in a grandparent visitation case and stopped a trial in my court dead in its tracks. To be honest, had he not raised the issue, I would have gone ahead with the trial simply because I had no reason to read the statute. If I had granted visitation, as the learned chancellor did in Bolivar, I guess it would have been reversible on the same ground.

As a practitioner, don’t rely on your rusty memory of the ins and outs of the code sections you are relying upon when you bring an action. Read the code. And, for Pete’s sake, don’t just blindly do a cut and paste job on the last similar set of pleadings you filed back in 2008. Code sections get amended. Case law changes things. Read the code. Stay current. Produce a quality product for your client that can’t be overturned.

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