The Extent of Grandparental Visitation

November 2, 2015 § 4 Comments

Jason McKinney and his wife, Shelida, had three children. Jason’s parents, Harold and Kim McKinney, enjoyed spending time with their grandchildren.

After Jason was killed in an automobile accident in 2012, however, Harold and Kim found it increasingly difficult to see and spend time with the grandchildren. It seemed that every time they tried to visit the children had some kind of scheduled activity that prevented or precluded the visit.

Harold and Kim filed a petition with the court for grandparental visitation. Shelida responded by denying that they were not entitled to a court order because she had not denied them visitation, so that they were not entitled. she also denied in her testimony that the grandparents had been involved enough in her children’s lives during Jason’s lifetime so as to entitle them to a court order.

The chancellor found that Harold and Kim were entitled to a court order, and directed visitation every Monday afternoon from 3:30 pm until 7:00 pm, and the third weekend of every month from Saturday at 8:00 am until Sunday at 4:00 pm, and one week in the summer. Shelida appealed.

In McKinney v. McKinney, handed down September 29, 2015, the COA affirmed.

The COA opinion, by Judge Irving, first addressed Shelida’s contention that Harold and Kim were not entitled to visitation because they had not shown that they had been denied, and they did not establish the quality of relationship with the children that would qualify them under the statute. Rejecting Kim’s argument, the court pointed out that Harold and Kim were entitled to an order establishing visitation by virtue of MCA 93-16-3(1), due to the fact that their son, the father of the grandchildren, had died. That fact was the sole prerequisite to a court order, and they were not required to show that they had been denied visitation, or that they had established a viable relationship with the children, as required in MCA 93-1603(2), which applies when both parents of the grandchildren are alive.

Next, the court turned to Shelida’s argument that the chancellor awarded the grandparents too much visitation. Judge Irving’s opinion:

¶14. Shelida next argues that even if visitation was warranted, the chancery court erred in granting the grandparents more visitation than they exercised prior to their son’s death. She stresses that the grandchildren did not visit with their grandparents more than two or three times a week while Jason was alive, and she takes issue with the chancery court granting overnight visitation since the children had rarely spent the night at their grandparents’ house during Jason’s lifetime.

¶15. The Mississippi Supreme Court in Settle v. Galloway, 682 So. 2d 1032, 1035 (Miss. 1996) (internal citations omitted), in expressing concern over excessive grandparent visitation, stated:

Natural grandparents have no common-law “right” of visitation with their grandchildren. Such a right must come from a legislative enactment. Although the Mississippi Legislature created this right by enacting [section] 93-16-3, it is clear that natural grandparents do not have a right to visit their grandchildren that is as comprehensive as the rights of a parent.

¶16. For guidance, our supreme court has listed ten factors that should be considered in determining grandparent visitation. The factors are as follows:

1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time;

2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child;

3. The age of the child;

4. The age and physical and mental health of the grandparents;

5. The emotional ties between the grandparents and the grandchild;

6. The moral fitness of the grandparents;

7. The distance of the grandparents’ home from the child’s home;

8. Any undermining of the parent’s general discipline of the child;

9. Employment of the grandparents and the responsibilities associated with that employment;

10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

Martin v. Coop, 693 So. 2d 912, 916 (Miss. 1997). In arriving at the decision to grant the grandparents visitation, the chancery court considered the best interests of the minor children and each of the Martin factors and ultimately fashioned a visitation schedule that took into consideration the grandchildren’s weekly schedule. And regarding the summer visitation, the court noted that it would grant visitation to the grandparents the second week in July so that Shelida would be able to celebrate the Fourth of July holiday with her children. We find nothing excessive about the amount of visitation ordered, and certainly nothing as comprehensive as would be awarded to a noncustodial parent. Therefore, we find no error in the decision of the chancery court. This issue is without merit.

A couple of takeaways:

  • The grandparents’ visitation is not limited to the amount they experienced during the deceased parent’s lifetime. Rather, the extent of visitation must be based on consideration of the Martin factors and the circumstances of the children’s lives, taking into account that grandparental visitation is less extensive than parental visitation.
  • Read this decision carefully and understand that there are two categories of grandparental visitation. The first category is nearly automatic; the second is much trickier and requires more proof.
  • In rural areas it is not uncommon for the children to get on and off the school bus at the grandparents’ home, to run next door to see them at will, to spend nights and weekends with the grandparents, and to have the grandparents participate in almost every facet of the children’s lives. That less “comprehensive” rule announced in Settle v. Galloway seems too stringent in this kind of living arrangement. If a parent dies, why would the grandparents not have more visitation, even to the extent that the dead parent would have had if not deceased.
  • The more detailed proof you offer to support the time the children have spent with the grandparents, and its quality, and what the grandparents have to offer, will strengthen your case when you represent the grandparents.
  • In my experience, only grandparents who have truly had a negative influence on the family and would be genuinely bad for the children are denied visitation. Even if your client wants them to have no visitation, you need to help your client understand how the judge will use and apply the Martin factors. Tailor your proof to showing how that visitation should be minimized rather than denied.

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§ 4 Responses to The Extent of Grandparental Visitation

  • Victor Fleitas says:

    Understood. Zeman seems to stake out a position in conflict with Troxel, through its use of the Martin v. Coop multi-factored balancing test, despite its claim to fealty. Not saying Mississippi takes the wrong approach, it just seems constitutionally suspect, despite the Mississippi Supreme’s unanimous decision in Smith v. Wilson, 90 So. 3d 51 (Miss. 2012).

    There’s definitely a major conflict nationwide on what Troxel requires, with Mississippi on one end of the issue and Iowa and Kansas on the other. See Lauren Worsek, It Really Does Take a Village: Recognizing the Total Caregiving Network by Moving Toward a Functional Perspective in
    Family Law After Troxel v. Granville, 30 Wash. U. J. L. & Pol’y 589 (2009),
    http://openscholarship.wustl.edu/law_journal_law_policy/vol30/iss1/18) (favoring the Mississippi approach).

  • Victor Fleitas says:

    How can this decision be reconciled with Troxel v. Granville, 530 U.S. 57 (2000)? It appears the Mississippi statute authorizing grandparent visitation is as unconstitutional as the Washington statute in so far as it obligates a fit, non-consenting parent to submit to grandparent visitation.

    Curious why the Court’s discussion doesn’t even mention Troxel, given it appears controlling.

    • Larry says:

      I think the MSSC addressed that question in Zeman v. Stanford, 789 So.2d 798, 803 (Miss. 2001). The court pointed out that our statute is more narrow than Washington’s, and that it does require the court to consider the wishes of the parent(s).

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