Is a Step-Grandparent a Grandparent?

January 8, 2020 § Leave a comment

Not for grandparent visitation purposes, says the MSSC.

That was one of the holdings of the court in the case of Garner (aka Garcia) v. Garner, decided October 3, 2019.

In that case, the chancellor modified custody of Andrew, awarding an uncle custody, and allowed visitation with the maternal grandparents, Judi and Ron. Ron was the child’s step-grandfather. The mother, April, appealed.

Justice Griffis wrote for a 5-4 court:

¶85. The chancellor determined that Andrew’s best interests would be served by allowing visitation with his maternal grandparents, Judi and Ron. April argues the chancellor erred by awarding grandparent visitation to Ron. She does not contest or appeal the chancellor’s award of grandparent visitation to Judi.

¶86. April asserts that Ron does not meet the statutory criteria for grandparent visitation because he is a step-grandparent. Whether a step-grandparent has a right to petition to seek visitation with the child depends entirely on whether he or she is a “grandparent” within the
meaning of Mississippi Code Section 93-16-3 (Rev. 2018). This presents an issue of statutory interpretation, which is reviewed de novo. T.T.W. v. C.C., 839 So. 2d 501, 503 (Miss. 2003).

¶87. Grandparents do not possess a common-law right of visitation. Smith v. Wilson, 90 So. 3d 51, 58-59 (Miss. 2012). Such a right is purely statutory. Section 93-16-3 provides,

(1) Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child’s parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.

(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:

(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and

(b) That visitation rights of the grandparent with the child would be in the best interests of the child.

Miss. Code Ann. § 93-16-3 (Rev. 2018).

¶88. Section 93-16-3 does not expressly define “grandparent,” but it does refer to a grandparent as the “parent of a child’s parent.” Miss. Code Ann. § 93-16-3(1). Notably, no reference is made to a step-grandparent in the statute.

¶89. In Lott v. Alexander, 134 So. 3d 369, 374 (Miss. Ct. App. 2014), the court reversed the chancellor’s award of visitation to great-grandparents. The court noted that “[n]either subsection one or two of 93-16-3 purports to authorize visitation awards to greatgrandparents.” Id. at 372. The court found that “[g]iving the term ‘grandparent’ its plain and ordinary meaning, the intent of the Legislature is clear and unambiguous.” Id. at 373. As a result, the court found it “lack[ed] authority to add words or meaning to a statute that is plain on its face.” Id. at 374. Additionally, in Pruitt v. Payne, 14 So. 3d 806, 811 (Miss. Ct. App. 2009), the court found a stepfather “ha[d] no right to visitation with his stepchildren under the laws of the State of Mississippi.”

¶90. Here, as in Lott, “[n]either subsection one or two of [Section] 93-16-3 purports to authorize visitation awards to [step]-grandparents.” Id. at 372. This Court does not have the “authority to write into the statute something which the Legislature did not itself write therein, nor can [this Court] ingraft upon it any exception not done by the lawmaking department of the government.” Id. at 373 (quoting Wallace v. Town of Raleigh, 815 So. 29 2d 1203, 1208 (Miss. 2002)). “While the Legislature has chosen to extend visitation rights to grandparents by statute, they have declined to extend that same right to step[-grandparents].” Pruitt, 14 So. 3d at 811.

¶91. Because Ron, as Andrew’s step-grandparent, does not meet the criteria of a “grandparent” under Section 93-16-3, the chancellor erred by granting Ron grandparent visitation rights with Andrew. [Fn 11] Accordingly, we reverse and render on this issue.

[Fn 11] Although Ron has no legal right to grandparent visitation under Section 93-16-3, nothing in Section 93-16-3 prevents Ron from visiting or having a relationship with Andrew. “[T]the more familial bonds a child has is generally better for the child . . . .” Lott, 134 So. 3d at 374 (quoting Cole v. Thomas, 735 S.W.2d 333, 335 (Ky. Ct. App. 1987)).

You probably were scratching your head as I was over what difference this ruling would make for Ron. He would undoubtedly get to see and visit with the child when Judi had him, and most likely any other time he wanted, because he, Judi, and the uncle were allied in this case (and then the court pointed that out in Fn 11).

The difference here is the case’s precedential value. Now Mississippi law is that step-grandparents are not grandparents for purposes of the grandparent visitation statute.

Justice King wrote a sharp dissent.

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