Best Interest and Grandparent Visitation

May 15, 2017 § Leave a comment

Tier One grandparent visitation, which is provided in MCA 93-16-3(1), allows grandparents to petition for visitation when either (a) one or both of the parents have their parental rights terminated; or (b) one or both of the parents dies.

I think it’s fair to say that most of us have construed 93-16-3(1) to mean that visitation in the specified cases is automatic, and that the real issue at such hearings is the amount and frequency of visitation, based on the trial judge’s analysis of the factors in Martin v. Coop

In the recent case of Smith v. Martin, handed down April 20, 2017, the MSSC granted cert. to address the question whether the language of the statute requires a more thorough analysis. Appellants Smith argued that the provision in MCA 93-16-5 that the court “may, in its discretion, if it finds such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child,” requires the court to use Martin v. Coop not only for a frequency and amount analysis, but also for a best interest analysis.

Justice Kitchens wrote for a unanimous court:

 ¶14. As the Smiths argue, the Martin Court did not take into account Mississippi Code Section 93-16-5, which states that the chancery 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.” Miss. Code Ann. § 93-16-5 (Rev. 2013). Section 93-16-5 obligates the chancellor to consider the best interest of the child(ren), even if the statutory elements of Section 93-16-3(1) are met. This Court has held that “[n]atural grandparents have no common-law ‘right’ of visitation with their grandchildren. Such right must come from a legislative enactment.” Settle v. Galloway, 682 So. 2d 1032, 1035 (Miss. 1996) (citing Matter of Adoption of a Minor, 558 So. 2d 854, 856 (Miss. 1990)). “Although the Mississippi Legislature created this right by enacting § 93-16-3, it is clear that natural grandparents do not have a right to visit their grandchildren that is as comprehensive to the rights of a parent.” Settle, 682 So. 2d at 1035.

¶15. The Martin Court erred by instructing chancellors to consider the best interest of the child(ren) only in the context of the amount of visitation, after finding an entitlement to grandparent visitation under Section 93-16-3(1). See Martin, 693 So. 2d at 916 (“The chancellor in this case found that under [Section 93-16-3(1)] the petitioners are in fact the grandparents of [the child] and that their son is deceased. Thus, all the proof necessary under § 93-16-3(1) was present and, therefore, the grandparents should be awarded visitation.”) The Martin Court ignored the requirement of Section 93-16-5 that the best interest of the child(ren) be considered in determining the grandparents’ entitlement to grandparent visitation rights. The Martin Court stated the following: “In determining the amount of visitation that grandparents should be granted in this situation, some guidelines by this Court may be helpful. As always, the best interest of the child must be the polestar consideration.” Id. (emphasis added). But, under Section 93-16-5, the best interest of the child(ren) must be considered, even if Section 93-16-3(1) is found to apply, since Section 93-16-3(1) states that “either parent of the child’s parent may petition the court . . . and seek visitation rights with the child.” Miss. Code Ann. § 93-16-3(1) (emphasis added). Section 93-16-3(1) only permits the grandparents to seek visitation; it does not entitle them to receive it. [Emphasis in original]

¶16. We have reversed a chancellor’s award of grandparent visitation where “[t]here is no indication from the chancellor’s statement, or anywhere else in the record, that the best interests of [the child] were considered by the chancellor in making her decision.” Morgan v. West, 812 So. 2d 987, 992 (Miss. 2002). This Court observed that the chancellor appeared to have been “more concerned with the best interests” of the grandmother because she found: “from prior testimony and testimony presented today that this grandmother was relied upon during the hard times, and at the present time the parents want to push her aside and treat her as an outsider. It is obvious to the Court they want to break the relationship between the grandchild and the grandmother . . . .” Id.

¶17. The Mississippi Court of Appeals likewise has reversed a chancellor’s award of grandparent visitation, noting that “the Legislature has outlined the steps a grandparent should take to pursue visitation” and that “because the child’s best interest is the fundamental concern, a chancellor must review all relevant factors as outlined in Martin before granting grandparent visitation.” Givens v. Nicholson, 878 So. 2d 1073, 1077 (Miss. Ct. App. 2004).

¶18. We clarify that, under Section 93-16-3(1), the chancellor’s consideration of the child’s or children’s best interest is not limited to the determination of the amount of visitation, but must be considered in determining whether the grandparents should receive visitation in the first place. The Smiths contend that the chancellor’s statements at the hearing indicate that she expected the Smiths, in order for them to prevail, to prove that the mental and emotional health of the Martins rendered them incapable of exercising grandparent visitation and that the Martins posed a threat to Cliff and Hank. But our review of the record leads us to conclude that the chancellor carefully analyzed Sections 93-16-3(1) and (2) and scrupulously weighed each Martin factor, thereby performing the correct analytical process and properly applying the right procedural, evidentiary, and statutory principles. This process led her to a fair and just resolution of a difficult and emotional case. The present case greatly differs from those in which this Court has deemed reversal the only appropriate remedy. See Morgan, 812 So. 2d at 992 (This Court reversed because the chancellor had not considered the best interest of the child at all and “the chancellor did not articulate her findings regarding the Martin factors . . . .”) Here, we can identify no manifest error which would warrant reversal, and the record before us is clear that the paramount consideration supporting the chancellor’s decision was the best interest of the children. [Emphasis mine]

This is an important decision that you need to know about when you handle a Tier One grandparent visitation case. From now on, when you represent the grandparents, you must put on proof that visitation is in the child’s best interest through the filter of the Martin v. Coop factors, as well as your case on the amount and frequency. If you fail to address best interest based on Martin v. Coop, you just might get 41(b)’d out of court.

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