Prerequisites to Grandparent Visitation
May 20, 2019 § Leave a comment
After the chancellor dismissed her petition for grandparent visitation, Angela Vermillion appealed, arguing that the chancellor had applied a wrong legal standard. In Vermillion v. Vermillion, handed down March 19, 2019, the COA affirmed. Judge Carlton’s opinion is informative on the question of what a grandparent must prove in order to be entitled to visitation:
¶20. Angela next argues that the chancellor applied the wrong legal standard with respect to grandparent visitation; specifically, by refusing to consider section 93-16-5, which addresses the best interest of the child. Angela asserts that she began her relationship and bonding with her grandchild before Chella Rose’s birth and that the chancellor erred by failing to consider “Angela’s effort prior to the live birth.” Angela maintains that “[t]he proof has shown that through the second and third trimester of pregnancy, everyone was happy.” Angela asserts that the chancellor is required to consider section 93-16-5 prior to sustaining a motion for a directed verdict and dismissing Angela’s claim with prejudice.
¶21. Our careful review of relevant precedent shows that grandparents seeking visitation rights must first satisfy the requirements of section 93-16-3 before the chancellor is required to address the best interests of the child. In Aydelott [v. Quartaro], 124 So. 3d  at 100 (¶10) [(Miss. Ct. App. 2013)] (internal quotation marks omitted), this Court outlined the factors that the grandparents in that case had to prove in order “to have the statutory right to petition for visitation . . . .” This Court explained that the grandparents “first had to show they had established a viable relationship with each granddaughter.” Id. The grandparents “next had to show that ‘the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child.’” Id. at 101 (¶10) (quoting Miss. Code Ann. § 93-16-3(2)(a)). This Court then expressed that “[o]nly by the [grandparents’] establishment of a viable relationship and unreasonable denial of visitation could [they] reach the polestar consideration for statutory grandparent visitation—whether visitation rights of the grandparent with the child would be in the best interests of the child.” Id. at (¶11) (internal quotation marks omitted) (citing Miss. Code Ann. § 93-16-3(2)(b)). This Court explained that “[g]randparent visitation is different than child custody, as there are other evidentiary considerations besides the child’s best interest that must be considered—namely, whether the grandparent has produced sufficient evidence to show he or she is authorized under the statute to be awarded visitation.” Id. at 103 (¶19).
¶22. Similarly, in Hillman v. Vance, 910 So. 2d 43, 47 (¶11) (Miss. Ct. App. 2005), this Court held that because the chancellor found that the grandparent seeking visitation failed to meet one of the requirements of section 93-16-3(2), the chancellor could have disposed of the visitation request without conducting a best-interest analysis under Martin [v. Coop, 693 So.2d 912 (Miss. 1997)]. See also Smith [v. Martin], 222 So. 3d  at 258 (¶2) [(Miss.2017)] (affirming the chancellor’s judgment granting visitation rights to the grandparents when the chancellor considered the Martin factors only “[a]fter determining that the [grandparents] were entitled to visitation under both section 93-16-3(1) and section 93-16-3(2) . . .”).
¶23. Since the record reflects that Angela failed to meet her burden of proving that she had established a viable relationship with Chella Rose, we find that the chancellor was not required to consider section 93-16-5 before granting the motion for directed verdict. This issue lacks merit.
There are, as we know, two types of grandparent visitation. The first, which Professor Bell refers to as “Type 1” is available to grandparents whose child has lost visitation rights and the court finds that visitation is in the child’s best interest.
The court was dealing here with what Bell calls “Type 2” grandparent visitation, which applies to all grandparents who can establish (1) that they have enjoyed a viable relationship with the child(ren) and (2) that the parents are unreasonably denying visitation. Only after those prerequisites are established does the court then analyze the child’s best interest.
Best interest and whether visitation is in the child’s best interest are, under either type visitation, analyzed via the Martin v. Coop factors.