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.
October 1, 2019 § Leave a comment
Last week I posted about the Abercrombie case which relied on Burgess v. Williamson to reach the conclusion that res judicata may operate to bar raising a claim of lack of subject matter jurisdiction on appeal.
Back in April, the COA faced the same issue and reached the same conclusion.
On April 3, 2016, a chancellor granted grandparent visitation rights to Toni Lisenby-Grundy, the paternal grandmother, with her grandson, John. The defendant in that case was the maternal grandmother, Jessie Lou Price. A year later Jessie was found in contempt for not allowing Toni her visitation. Jessie never appealed either of these judgments, and she never raised the issue of lack of jurisdiction in either of them.
Again, in May, 2017, Jessie was found in contempt for the same behavior.
Following the May, 2017, contempt judgment Jessie appealed, asserting as one ground that the contempt judgment is void because the trial court never had jurisdiction in the first place to award grandparent visitation. The basis for her jurisdictional challenge is that neither her husband, Roy, nor her daughter Theresa, had been joined as required by statute. A post on who are those required parties is at this link. Jessie charged that the failure of the court to have jurisdiction over all persons required to be joined voids the original judgment and all of its subsequent judgments and renders them unenforceable. In other words, the trial court never acquired subject matter jurisdiction.
In the case of Price v. Lisenby-Grundy, an April 16, 2019, decision, the COA rejected Jessie’s position and affirmed. Judge Carlton wrote the majority opinion:
¶26. At no time did Jessie challenge the court’s jurisdiction as to Toni’s original grandparent’s visitation action; nor did Jessie appeal the April 3, 2015 visitation order. [Fn 6] The doctrine of res judicata, therefore, bars Jessie’s attempt to challenge that order on jurisdictional grounds in this appeal. We find that Burgess v. Williamson, No. 2017-CA-00788-COA, 2018 WL 4705709 (Miss. Ct. App. Oct. 2, 2018) [270 So. 3d 1031 (Miss. Ct. App. 2018)], is instructive on this issue. In that case, Burgess appealed a May 9, 2017 contempt order against her based upon the court’s determination that she failed to comply with a final judgment awarding custody and support entered on September 8, 2015. Burgess, 2018 WL 4705709, at *2 (¶¶11-12). Among other issues on appeal, Burgess asserted that the chancery court “erred in assuming jurisdiction” over the matter. Id. at *2 (¶12).
6 We also observe that at no time did Theresa Price or Roy Price object to the chancery court’s jurisdiction on any basis, and neither Roy nor Theresa Price appealed the April 2015 visitation order.
¶27. We held that “if Burgess is trying to argue that the chancery court lacked jurisdiction to enter the original (September 8, 2015) final judgment awarding custody and support, her claim is barred by the doctrine of res judicata.” Id. at *3 (¶17). In so holding, we found that Burgess had defended the original proceeding on the merits, and did not appeal the September 8, 2015 judgment. The same is true in this case. Jessie was a party to Toni’s visitation action, participated in that action on the merits, and never challenged the chancery court’s jurisdiction on any basis. Indeed, Jessie Price’s attorney agreed to the form of the final order of visitation entered in the consolidated proceeding, which specifically provides that “[the] Court has complete and plenary jurisdiction over the subject matter and the parties involved herein.” Finally, Jessie did not appeal the April 2015 visitation order.
¶28. As we explained in Burgess, 2018 WL 4705709, at *3 (¶17), “[a]ny challenge to the . . . court’s jurisdiction should have been taken up in the original proceeding or on direct appeal from the original order.” In this regard, “[o]nce a case is litigated to a final judgment, and no appeal is taken, a party who participated in the original litigation cannot collaterally attack the court’s jurisdiction in a later proceeding.” Id. (citing Phillips v. Kelley, 72 So. 3d 1079, 1084 (¶18) (Miss. 2011) (“[S]ubject matter jurisdiction . . . may not be attacked collaterally.”) (quoting Travelers Indem. Co. v. Bailey, 557 U.S. 137, 152 (2009)). See also Dep’t of Human Servs. v. Shelnut, 772 So. 2d 1041, 1045 (¶13) (Miss. 2000) (“The principles of res judicata apply to questions of jurisdiction as well as to other issues whether the questions relate to jurisdiction of the subject matter or jurisdiction of the parties.”); Restatement (Second) of Judgments §12 (1982) (“When a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court’s subject matter jurisdiction in subsequent litigation [subject to three narrow exceptions, inapplicable in this case].”). We find the same principle applies here and bars Jessie’s attempt to challenge the April 3, 2015 visitation order on jurisdictional grounds.
Not much more to say about that.
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.
June 18, 2014 § 5 Comments
I have heard it said that chancery courts routinely grant temporary relief in any matters pending before them. Is that so? And in what matters is temporary relief available?
Let’s look at family law.
Anyone who has done any Mississippi family law knows that temporary relief is available in divorce cases. The authority of the chancery court to grant temporary relief in a divorce proceeding is found in MCA 93-5-17(2), which provides:
The chancellor in vacation may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.
Divorce is a creature of statute unknown in the common law; therefore, any relief obtainable in a divorce must have its source in a statute. Since this statute is part of the title dealing with divorce, and is a subsection of the statute that requires divorce hearings to be held in open court, I am confident in saying that this particular statute is not authority to grant temporary relief outside the context of a divorce.
Likewise, in cases of determination of parentage, MCA 93-11-65(10) creates a remedy:
Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic testing or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.
Notice that the latter statute does not not include custody among the relief provided. The COA has held that both natural parents have an equal right to custody of the child, regardless whether parentage has been finally determined. So, on the one hand, it would appear in a custody dispute between parents in a parentage case that the tug-of-war between them must continue unabated by temporary custody because there is no provision in the statute for temporary custody. The conundrum is exacerbated by the simple fact that support is customarily (always?) paid to the parent with custody, which is certainly logical, because we have to know where the child will be in order to know where to direct the support. If the court has no statutory authority to award custody in such a case, how can the court award child support?
It could be that the chancellor may simply order extra-statutory temporary relief in a given case based on equitable principles. In the parentage case, for example, the court could award temporary custody in order to get to the statutorily permissible temporary support award.
But would such an order stand? After all, we know that there is no appeal of right from a temporary or interlocutory order.
I think the distinction may lie in the nature of the review. If the merits of the order are attacked, then I think the appeal fails. If the power of the court to grant the temporary relief is attacked, then I think the appeal would have merit. An example of the latter is Martin v. Falcon, #2013-IA-1985-SCT (December 5, 2013), in which Justice Coleman vacated a temporary order granting grandparent visitation.
Is there even a right to a temporary hearing in a grandparent visitation case? I would argue in the negative, for two reasons: (1) the grandparent visitation statute has no provision whatsoever for temporary relief, and like divorce and parentage, it is a creature solely of statute; and (2) to grant temporary relief is to presume on the ultimate issue that the petitioner is entitled to such relief, which is not always so.
Of course, temporary relief is expressly available in injuntions, per MRCP 65, in the form of a TRO. A TRO does require the existence of an emergency or danger of irreparable harm if no relief is immediately granted. And the domestic violence statutes incorporate such relief.
Custody modification cases and third-party custody cases are somewhat more problematical. There are statutes dealing with custody, and its award and forms, but they do not specifically mention temporary relief. In this district, we do not allow temporary relief in a child-custody-modification case unless there is an emergency or it is clearly necessary to protect the best interest of a child until a final determination may be made. To do otherwise would peremptorily adjudicate the ultimate issue in the case.
When the chancellor acts in an emergency or other exigent situation to protect the child, her actions are based on Article 6, § 159 of the Mississippi Constitution, which gives chancery courts “full jurisdiction” over “All matters in equity,” and “Minor’s business.” Custody has long been recognized as being under the mantle of chancery jurisdiction, and, indeed, our cases speak in terms of the chancellor being the “superior guardian” and protector of the child’s best interest. I think as between the apparent form required by statute and the chancellor’s determination that action must be taken for the best interest of a child, the court will and should go with the best interest every time.
I would reconcile all of the foregoing by saying that I believe that, in the absence of exigent circumstances requiring immediate intervention the court should avoid temporary relief unless there is a statutory provision or rule expressly providing that relief. Your chancellor may see it differently, based on an entirely different rationale, but that is the way I view it.
This post addresses temporary relief in family law matters. Temporary relief in the many other types of cases within chancery jurisdiction is the subject of another post.
Thanks to Attorney George S. Whitten of Greenwood for supplying some of the material for this post.
March 19, 2014 § Leave a comment
Grandparent visitation is a legislative creation that first made its appearance in Mississippi in 1983, and it is now codified at MCA 93-16-1. The concept was unknown to the common law.
We posted here before that there is no right of sibling or step-parent visitation.
But what about great-grandparents? They are, after all, grandparents themselves.
That was the question squarely before the COA in the case of Lott v. Alexander, handed down March 11, 2014.
The Alexanders are the great-grandparents of the children with whom visitation was sought. Lott, the children’s mother, is the Alexanders’ granddaughter. It appears from the record that, for whatever reason, the Alexanders have stood in the shoes of their own daugher, who is or was the grandmother of the children with whom visitation was requested. Based on that relationship, and on the judge’s findings that they met the criteria for grandparent visitation, the chancellor found that they were entitled to grandparent visitation. Lott appealed.
Judge Fair, for the majority, wrote that the statute, which is plain and unambiguous, does not include or even define great-grandparent status. The courts have no authority to expand or add to the scope of an unambiguous statute, so great-grandparent visitation is not available in Mississippi.
Judge Fair’s analysis is detailed and comprehensive. I commend it to your reading.
The outcome in this case should be no surprise. The statute is in derogation of common law, and, therefore, must be strictly construed. There is no room for the courts to add great-grandparents, siblings, step-parents, or any other categories of relatives whatsoever. That’s up to the legislature.
July 22, 2013 § 1 Comment
Unlike grandparent visitation, which became a part of Mississippi’s legal landscape by act of the legislature in 1983, sibling and step-parent visitation are matters that have not found their way into our body of law.
In the case of Scruggs v. Satterfiel, 693 So.2d 924 (Miss. 1997), the court was confronted with the question whether siblings have a right to visitation with each other.
Stacey Scruggs and her half-brother, Dustin Anthony “Tony” Satterfiel, were the children of Donna Sue Bowman, who died. After their mother’s death, Donna’s sister, Sandra Friend, got guardianship of Stacey, and she sought to keep the two children together in Meridian, but Tony’s natural father, who lived in Ackerman, was awarded his custody in chancery court, and Tony moved to Choctaw County with him.
At first, the parties arranged for visitation between the siblings, but when disputes and differences arose, Stacey, by Sandra, filed suit in Lauderdale county Chancery Court, seeking visitation with her brother. The chancellor dismissed the petition, finding that there was no legal basis to support an award of visitation in the case. Stacey appealed.
The MSSC affirmed the dismissal:
Stacey and Friend first assert that although no statutory provision has been made for visitation of siblings separated by divorcing parents, the circuit court [sic] erred in not ordering the parties to provide for the children to have regular visits with each other. In support of their argument, they look to case law in Mississippi and other jurisdictions which emphasizes the importance of considering the best interests of the child and preserving sibling relationships. Further, they turn to Miss.Code Ann. § 93-16-1, et seq., which provides for grandparent visitation. Saterfiel merely recites the chancellor’s specific findings made pursuant to the Litigation Accountability Act and asserts that because there is no Mississippi law on the subject of sibling visitation, the chancellor properly dismissed the case.
  This Court, as Scruggs and Friend point out, has recognized the value of encouraging sibling relationships. In Sellers v. Sellers, 638 So.2d 481 (Miss.1994), which involved a custody dispute between an aunt and a natural parent, we clarified our position that “the presumption of awarding custody to a natural parent should prevail over any imperative regarding the separating of siblings.” Id. at 485. Nevertheless, quoting Mixon v. Bullard, 217 So.2d 28, we reiterated that:
The Court shall in all cases attempt insofar as possible, to keep the children together in a family unit. It is well recognized that the love and affection of a brother and sister at the ages of these children is important in the lives of both of them and to deprive them of the association ordinarily would not be in their best interests. [Emphasis in original]
Sellers, 638 So.2d at 484, quoting Mixon, 217 So.2d at 30-31 (emphasis added). Despite our respect for the preservation of sibling bonds, however, it is not our prerogative to make new laws governing sibling visitation. That decision belongs to the legislature.
By statute, the legislature has extended third party visitation rights to grandparents when “such visitation rights would be in the best interest of the child.” Miss.Code Ann. § 93-16-5. While, ordinarily, the exercise of grandparent visitation rights might serve as a catalyst for preserving the relationship between half-siblings separated by the death of the common parent, in the case sub judice, the only known maternal grandparent died several months before the children’s mother’s death. We recognize, as Scruggs and Friend argue, that some jurisdictions, in the absence of any statutory imperative, have made provision for sibling visitation when the children’s best interests so dictate. See, e.g. In re Interest of Daniel W., 3 Neb.App. 630, 640, 529 N.W.2d 548, 555 (1995)(as distinguished from grandparent’s “right” to visitation which is derived through natural parent’s parental rights, “siblings possess the natural, inherent and inalienable right to visit with each other.” quoting L. v. G., 203 N.J.Super. 385, 497 A.2d 215, 222 (1985)); In re Custody of D.M.M., 137 Wis.2d 375, 387-388, 404 N.W.2d 530, 535 (1987)(statutes providing visitation to family members are intended to supplement, not supplant, common law rights). We are not so inclined. Rather, we invite the legislature to consider the matter and to expand the rights set forth in § 93-16-5 to siblings or other third parties as it sees fit.
The legislature has not RSVP’d. Until it does, it appears there will be no sibling visitation in Mississippi.
In the case of Pruitt v. Payne, 14 So.3d 806 (Miss. App. 2009), in a procedurally peculiar case, the stepfather, Jackie Ray Pruitt, had obtained an order of visitation with his stepchildren in a habeas corpus proceeding before one chancellor. When he sought to enforce the order before a successor chancellor, the natural father, Richard Payne, objected, and the second judge struck down and dismissed the prior order, noting that the stepfather had no right cognizable under Mississippi law to visitation. The COA affirmed, at page 811:
In the case at bar, Jackie Ray is seeking visitation with his stepchildren. However, as the chancery court noted, Jackie Ray has no right to visitation with his stepchildren under the laws of the State of Mississippi. In order for Jackie Ray to obtain custody of his stepchildren, he must demonstrate to the court that their biological father is unfit. As noted by Jackie Ray at the second hearing, there is a separate proceeding, Civil Action Number 06-162-M, in which he is seeking a determination of whether Richard is an unfit parent. Jackie Ray’s proper relief is contained in that separate proceeding. Therefore, Jackie Ray must show that Richard is an unfit parent in order to gain custody or visitation with his stepchildren. While the Legislature has chosen to extend visitation rights to grandparents by statute, they have declined to extend that same right to stepparents. Therefore, we find that the chancellor was correct to grant the motion to dismiss since Jackie Ray had no visitation rights under the laws of the State of Mississippi. This issue is without merit.
The only visitation rights in derogation of the common law that have been established in Mississippi are visitation rights on the part of grandparents. That’s the way it will stand unless and until the legislature sees fit to expand the scope of third-party visitation.
July 18, 2013 § 2 Comments
In most cases, grandparent visitation should not be as comprehensive or extensive as that of natural parents. Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997).
But just what amount of visitation is reasonable for grandparents? Here is a collection of cases addressing the question:
- Settle v. Galloway, 682 So.2d 1032 (Miss. 1996). The MSSC affirmed an award of alternating weekends, plus Easter and Thanksgiving in alternating years. The court pointed out that grandparent visitation on alternating weekends would probably be excessive in the usual case, but that it was appropriate in this particular case because the non-custodial parent was in the military and could not exercise his usual visitation.
- Martin v. Coop, 693 So.2d 912 (Miss. 1997). The MSSC reversed an award of 86 days in even-numbered years, and 81 days in odd-numbered years. The court found that “Grandparents do not stand in lieu of or in the shoes of the deceased parent,” and “[V]isitation granted to grandparents should not be the equivalent to that which would be granted to a non-custodial parent unless the circumstances overwhelmingly dictate that it should be.” Id., at 916.
- Zeman v. Stanford, 789 So.2d 798 (Miss. 2001). In a case where the non-custodial parent was incarcerated, and was unable to exercise any visitation, the MSSC affirmed a chancellor’s award of one weekend per month, finding that the situation was analogous to the Settle case, supra.
- Woodell v. Parker, 860 So.2d 781 (Miss. 2003). Affirmed the chancellor’s award of: one weekend per month; every other Spring Break/Easter holiday; the Friday and Saturday following Thanksgiving; the five days following Christmas; two weeks during the summer; and regular telephone and “postal” access. Id., at 790.
- T.T.W. v. C.C. and J.C., 839 So.2d 501 (Miss. 2003). The court remanded for a full consideration of the Martin factors in a case where the parents resisted visitation due to the grandparents’ interference with parental decisions and discipline. Interestingly, the court suggested that, “on remand the chancellor might consider options other than a wholesale grant or denial of visitation,” and pointed out that supervised visitation might alleviate many of the problems that had arisen. Id., at 506.
Remember that the amount and extent of grandparent visitation may only be determined by the trial court after application of the Martin v. Coop factors.
Visitation may be modified “for cause.” MCA 93-16-5; Rose v. Upshaw, 69 So.3d 74, 79 (Miss. App. 2011).
[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]
May 21, 2012 § 3 Comments
Ever since grandparent visitation was enacted by our legislature in 1983, I have heard grumblings from some members of the bar that the statute is unconstitutional. The complaint chiefly is that it intrudes the state into the parent-child relationship and invades the province of parents’ decison-making, which should be beyond the state’s reach when the parents have not violated any laws or hurt their children.
The first test came in the case of Martin v. Coop, 693 So.2d 912 (Miss. 1997), in which the MSSC upheld the constitutionality of the statutes and established factors that trial courts were required to consider in adjudicating whether there should be grandparent visitation in a given case, and its terms.
The matter appeared to be settled until the US Supreme Court’s decision in Troxel v. Granville, 530 US 57 (2000), which held a visitation statute of the State of Washington to be unconstitutional. In Troxel the opponents saw another avenue of attack, and it was only a matter of time before the issue would percolate up from a trial court.
The first case in the aftermath of Troxel was Zeman v. Stanford, 789 So.2d 798 (Miss. 2001), in which the appellants questioned the constitutionality of MCA 93-16-3(1), which affords grandparental visitation when the parents are divorced and one parent has been awarded custody. The court in Zeman held that the constitutionality of that very statute had already been addressed and found constitutional in Martin v. Coop, and that Troxel added nothing new to the conversation.
The most recent iteration on the subject came in the case of Smith v. Wilson, an appeal from Chancellor Jim Davidson’s ruling in Lowndes County Chancery Court. In this case, the grandparents had sought visitation on the basis that their daughter, the child’s mother, had died. The judge granted the visitation in favor of the Wilsons, and the Smiths appealed, questioning the constitutionality of both MCA 93-16-3 and 93-16-5 in light of Troxel.
In its May 3, 2010, opinion authored by Justice King, the court first distinguished the statute deemed unconstitutional in Troxel. That Washington law provided:
Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.
The statute was too broad in scope, since it did not define any specific class of persons who would have standing to petition for visitation, and it did not protect the parent’s right to make decisions about rearing her children. As for other non-parental visitation statutes, the Supreme Court declined to go further, stating:
Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific non-parental visitation statutes violate the Due Process Clause as a per se matter.
Justice King pointed out that the Mississippi statute is not overly broad as was the statute in Troxel, and that both Martin and Zeman correctly dispose of the constitutionality argument through the application of the Martin factors, which protect the parents’ substantive due process rights. The court held that neither of the statutes nor the Martin factors violate the Constitution.
A couple of other points from the decision:
- The Smiths’ argument that the burden of proof should be by clear and convincing evidence, was rejected by the court, which found no authority for the proposition (¶¶ 26-27).
- The court found (¶30) no merit to the argument that chancellors should be required to defer to parents’ wishes. The court stated that “While a chancellor should accord special weight to a parent’s wishes, there is no automatic right to deference.
- Also rejected was the Smith’s argument that a parent must be found unfit before awarding grandparent visitation (¶¶31-32).
- The court held (¶¶33-35) that there is no requirement in the statute providing for visitation by the parents of a dead parent that there have been an unreasonable denial of visitation as a prerequisite.
The decision, joined in by all nine justices, affirmed Judge Davidson’s award of grandparent visitation.
So it would appear that the constitutionality of Mississippi’s grandparent visitation is laid to rest, at least for now. I do not know whether a petition for rehearing has been filed, but that would likely be a futile gesture considering the unanimity of the court. Maybe the appellants are maneuvering for a run at the US Supreme Court. We’ll see.
May 8, 2012 § Leave a comment
After the petitioner has established entitlement to grandparent visitation under the statute, the chancellor must apply the factors set out in Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997). The Martin v. Coop factors are here, in checklist form.
In the recent COA case of Bolivar v. Waltman, decided April 3, 2012, Judge Maxwell outlined the decision-making process:
Once the statutory criteria are established, the chancellor must apply the following Martin factors to determine appropriate visitation:
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.
Townes v. Manyfield, 883 So. 2d 93, 95-96 (¶17) (Miss. 2004) (quoting Martin, 693 So. 2d at 916). The Mississippi Supreme Court has explained that “making findings of fact under the Martin factors is an integral part of a determination of what is in the best interest of a child.” Id. at 97 (¶29) (quoting T.T.W. v. C.C., 839 So. 2d 501, 505 (¶12) (Miss. 2003)). Because of the “integral” nature of these findings, our supreme court specifically instructs that “the Martin factors are to be applied and discussed in every case in which grandparent visitation is an issue.” Id. (emphasis added).
¶11. There is additional general guidance regarding the amount of visitation that should be awarded. “The visitation granted to a grandparent should be less than that which would be awarded to a non-custodial parent, unless the circumstances overwhelming[ly] dictate that that amount of visitation is in the best interest of the child, and it would be harmful to the child not to grant it.” Id. at 96 (¶21). And in cases where “a chancellor finds . . . a grandparent should be awarded equivalent visitation to that of a parent, those findings must be fully discussed on the record.” Id. at 97 (¶29).
¶12. Further, we note that the grandparent-visitation statute and the Martin factors apply whether the grandparent is seeking visitation from a natural or adoptive parent. T.T.W., 839 So. 2d at 503-06 (¶¶1-2, 7, 10, 17) (finding grandparent-visitation statute and Martin factors applicable where maternal grandparents adopted children, and paternal grandmother sought visitation); see also Woodell v. Parker, 860 So. 2d 781, 785-86 (¶15), 789-90 (¶29) (Miss. 2003). Thus, we find it logical that both the grandparent-visitation statute and the Martin factors should similarly apply to the present situation where a grandparent is seeking visitation rights from the children’s legal guardians. See Townes, 883 So. 2d at 97 (¶29) (instructing that Martin factors must always be applied where grandparent visitation is at issue).
¶13. Because chancellors are required to make specific findings on the Martin factors in every case involving grandparent visitation, the supreme court has vacated grandparent visitation awards unsupported by such findings. Townes, 883 So. 2d at 97-98 (¶30); T.T.W., 839 So. 2d at 506 (¶17); Morgan v. West, 812 So. 2d 987, 992 (¶14), 997 (¶38) (Miss. 2002).
On remand, the chancellor should fully discuss his findings concerning the grandparent visitation statute and Martin factors. Failure to do so may amount to reversible error. See Townes, 883 So. 2d at 97-98 (¶¶28-30).
If your opinion or judgment does not include findings on the Martin factors, file a timely MRCP 59 motion asking the court to make such findings. That assumes, of course, that you put on enough evidence for the court to make such findings. As Judge Maxwell so clearly states, every grandparent vissitation case pivots on the Martin factors. They are vital to your case. Question the witnesses using them. Make your record, and make sure the chancellor addresses them in the ruling.
Only last week the MSSC unanimously upheld the constitutionality of Mississippi’s grandparent visitation statute and application of the Martin factors. We’ll talk about that later.
April 18, 2012 § 1 Comment
In an earlier post we talked about how critical it is under the grandparent visitation statutes to join the natural parents.
The COA in Bolivar v. Waltman, decided April 3, 2012, raised the issue on its own and tossed out the appeal, vacating the trial court judgment in the process.
The natural parents of two minor children were divorced in 2006. The mother got custody and the father had visitation. In 2008, the Waltmans, who were maternal grandparents, got guardianship of the children due to both parents’ substance abuse. Initially the Waltmans afforded Bolivar, the paternal grandmother, the same every-other-weekend visitation that her son had enjoyed. Over time, however, the Waltmans began to curtail the time they allowed Bolivar, and she filed suit against the Waltmans in Jones County Chancery Court asking to be restored the full extent of her son’s visitation. The natural parents were not made parties.
Following a hearing the trial court granted Bolivar the same visitation that her son had under the original divorce judgment, and the Waltmans appealed.
In his opinion for the court, Judge Maxwell said:
¶6. Although neither party raises the issue of jurisdiction, we must do so on our own initiative. E.g., Michael v. Michael, 650 So. 2d 469, 471 (Miss. 1995) (citing Common Cause of Miss. v. Smith, 548 So. 2d 412, 414 (Miss. 1989); Cotton v. Veterans Cab Co., 344 So. 2d 730, 731 (Miss. 1977); Byrd v. Sinclair Oil & Refining Co., 240 So. 2d 623 (Miss. 1970)). Whether the chancery court had jurisdiction over a particular matter is a question of law, which the appellate court reviews de novo. In re Guardianship of Z.J., 804 So. 2d 1009, 1011 (¶9) (Miss. 2002) (citing Burch v. Land Partners, L.P., 784 So. 2d 925, 927 (¶7) (Miss. 2001)).
¶7. Mississippi Code Annotated section 93-16-5 establishes the necessary parties to a proceeding for grandparent visitation:
All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights shall be made parties to any proceeding in which a grandparent of a minor child or children seeks to obtain visitation rights with such minor child or children; and the 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.
(Emphasis added). Section 93-15-107(1) lists as necessary parties in an action to terminate parental rights: “the mother of the child, the legal father of the child, and the putative father of the child, when known[.]” Miss. Code Ann. § 93-15-107(1) (Rev. 2004). Likewise, we find these same parties are also indispensable in a custody determination. See Miss. Code Ann. § 93-27-205 (Rev. 2004) (requiring service of process on “any parent whose parental rights have not been previously terminated” in interstate custody disputes); see also generally Deborah H. Bell, Bell on Mississippi Family Law § 19.01 (2005); cf. Smith v. Watson, 425 So. 2d 1030 (Miss. 1983) (finding a third-party with custody of a child is a proper party to a custody dispute between parents but not a necessary party).
¶8. We find section 93-16-5’s mandate clear and unambiguous that the natural parents whose parental rights have not been terminated must be parties to a grandparent-visitation proceeding. And we conclude that the requirement for the joinder of necessary parties in section 93-16-5 is jurisdictional. See Garrett v. Bohannon, 621 So. 2d 935, 937-38 (Miss. 1993) (holding similar mandatory “shall” language in Mississippi Code Annotated section 91-7-25 (Rev. 2004), which establishes necessary parties to will contest, is a jurisdictional requirement); In re Estate of McClerkin, 651 So. 2d 1052, 1058 (Miss. 1995) (holding trial court lacked jurisdiction over will contest because “necessary and proper parties were not before the court.”) (citations omitted). As the supreme court similarly found in Garrett, we find that to give validity and credence to the trial court’s judgment without joinder of necessary parties would undermine the legislative mandate in section 93-16-5. Garrett, 621 So. 2d at 937.
The court vacated the judgment and remanded the case to the chancery court for further proceedings.
Earlier this year, an astute lawyer raised the non-joinder of a natural parent as a defense in a grandparent visitation case and stopped a trial in my court dead in its tracks. To be honest, had he not raised the issue, I would have gone ahead with the trial simply because I had no reason to read the statute. If I had granted visitation, as the learned chancellor did in Bolivar, I guess it would have been reversible on the same ground.
As a practitioner, don’t rely on your rusty memory of the ins and outs of the code sections you are relying upon when you bring an action. Read the code. And, for Pete’s sake, don’t just blindly do a cut and paste job on the last similar set of pleadings you filed back in 2008. Code sections get amended. Case law changes things. Read the code. Stay current. Produce a quality product for your client that can’t be overturned.