Sibling and Step-parent Visitation

July 22, 2013 § 1 Comment

Unlike grandparent visitation, which became a part of Mississippi’s legal landscape by act of the legislature in 1983, sibling and step-parent visitation are matters that have not found their way into our body of law.

In the case of Scruggs v. Satterfiel, 693 So.2d 924 (Miss. 1997), the court was confronted with the question whether siblings have a right to visitation with each other.

Stacey Scruggs and her half-brother, Dustin Anthony “Tony” Satterfiel, were the children of Donna Sue Bowman, who died. After their mother’s death, Donna’s sister, Sandra Friend, got guardianship of Stacey, and she sought to keep the two children together in Meridian, but Tony’s natural father, who lived in Ackerman, was awarded his custody in chancery court, and Tony moved to Choctaw County with him.

At first, the parties arranged for visitation between the siblings, but when disputes and differences arose, Stacey, by Sandra, filed suit in Lauderdale county Chancery Court, seeking visitation with her brother. The chancellor dismissed the petition, finding that there was no legal basis to support an award of visitation in the case. Stacey appealed.

The MSSC affirmed the dismissal:

Stacey and Friend first assert that although no statutory provision has been made for visitation of siblings separated by divorcing parents, the circuit court [sic] erred in not ordering the parties to provide for the children to have regular visits with each other. In support of their argument, they look to case law in Mississippi and other jurisdictions which emphasizes the importance of considering the best interests of the child and preserving sibling relationships. Further, they turn to Miss.Code Ann. § 93-16-1, et seq., which provides for grandparent visitation. Saterfiel merely recites the chancellor’s specific findings made pursuant to the Litigation Accountability Act and asserts that because there is no Mississippi law on the subject of sibling visitation, the chancellor properly dismissed the case.

[1] [2] This Court, as Scruggs and Friend point out, has recognized the value of encouraging sibling relationships. In Sellers v. Sellers, 638 So.2d 481 (Miss.1994), which involved a custody dispute between an aunt and a natural parent, we clarified our position that “the presumption of awarding custody to a natural parent should prevail over any imperative regarding the separating of siblings.” Id. at 485. Nevertheless, quoting Mixon v. Bullard, 217 So.2d 28, we reiterated that:

The Court shall in all cases attempt insofar as possible, to keep the children together in a family unit. It is well recognized that the love and affection of a brother and sister at the ages of these children is important in the lives of both of them and to deprive them of the association ordinarily would not be in their best interests. [Emphasis in original]

Sellers, 638 So.2d at 484, quoting Mixon, 217 So.2d at 30-31 (emphasis added). Despite our respect for the preservation of sibling bonds, however, it is not our prerogative to make new laws governing sibling visitation. That decision belongs to the legislature.

By statute, the legislature has extended third party visitation rights to grandparents when “such visitation rights would be in the best interest of the child.” Miss.Code Ann. § 93-16-5. While, ordinarily, the exercise of grandparent visitation rights might serve as a catalyst for preserving the relationship between half-siblings separated by the death of the common parent, in the case sub judice, the only known maternal grandparent died several months before the children’s mother’s death. We recognize, as Scruggs and Friend argue, that some jurisdictions, in the absence of any statutory imperative, have made provision for sibling visitation when the children’s best interests so dictate. See, e.g. In re Interest of Daniel W., 3 Neb.App. 630, 640, 529 N.W.2d 548, 555 (1995)(as distinguished from grandparent’s “right” to visitation which is derived through natural parent’s parental rights, “siblings possess the natural, inherent and inalienable right to visit with each other.” quoting L. v. G., 203 N.J.Super. 385, 497 A.2d 215, 222 (1985)); In re Custody of D.M.M., 137 Wis.2d 375, 387-388, 404 N.W.2d 530, 535 (1987)(statutes providing visitation to family members are intended to supplement, not supplant, common law rights). We are not so inclined. Rather, we invite the legislature to consider the matter and to expand the rights set forth in § 93-16-5 to siblings or other third parties as it sees fit.

The legislature has not RSVP’d. Until it does, it appears there will be no sibling visitation in Mississippi.

In the case of Pruitt v. Payne, 14 So.3d 806 (Miss. App. 2009), in a procedurally peculiar case, the stepfather, Jackie Ray Pruitt, had obtained an order of visitation with his stepchildren in a habeas corpus proceeding before one chancellor. When he sought to enforce the order before a successor chancellor, the natural father, Richard Payne, objected, and the second judge struck down and dismissed the prior order, noting that the stepfather had no right cognizable under Mississippi law to visitation. The COA affirmed, at page 811:

In the case at bar, Jackie Ray is seeking visitation with his stepchildren. However, as the chancery court noted, Jackie Ray has no right to visitation with his stepchildren under the laws of the State of Mississippi. In order for Jackie Ray to obtain custody of his stepchildren, he must demonstrate to the court that their biological father is unfit. As noted by Jackie Ray at the second hearing, there is a separate proceeding, Civil Action Number 06-162-M, in which he is seeking a determination of whether Richard is an unfit parent. Jackie Ray’s proper relief is contained in that separate proceeding. Therefore, Jackie Ray must show that Richard is an unfit parent in order to gain custody or visitation with his stepchildren. While the Legislature has chosen to extend visitation rights to grandparents by statute, they have declined to extend that same right to stepparents. Therefore, we find that the chancellor was correct to grant the motion to dismiss since Jackie Ray had no visitation rights under the laws of the State of Mississippi. This issue is without merit.

The only visitation rights in derogation of the common law that have been established in Mississippi are visitation rights on the part of grandparents. That’s the way it will stand unless and until the legislature sees fit to expand the scope of third-party visitation.

 

 

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