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.

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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