MORE ABC’S OF GRANDPARENT VISITATION

May 8, 2012 § Leave a comment

We’ve talked here and here about who are the necessary parties in a grandparent-visitation case under MCA 93-16-3. Here is a link to a post on the ins and outs of grandparent visitation.

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.

ONCE AGAIN ON THE IMPORTANCE OF CHECKLIST PROOF

November 24, 2010 § Leave a comment

I’ve talked before here about how important it is to develop your proof at trial based on the various lists of factors — I call them “checklists” — that have been handed down by the appellate courts. 

The Court of Appeals on November 2, 2010, reversed a Chancellor’s decision granting grandparent visitation for failure to address the Martin v. Coop factors.  In the case of Conerly v. Davis, the court stated that ” … the grandparent-visitation statutes simply give a grandparent … standing to file a request seeking visitation rights. It is then within the chancellor’s discretion to award or deny visitation after reviewing the Martin factors and considering the best interest of the child. Therefore, we vacate the chancellor’s judgment and remand this case for an on-the-record consideration of the Martin factors and the entry of an appropriate judgment based on those factors.”

The Martin v. Coop factors are here.

A guide to the intricacies of grandparent visitation is here.

The retrial in this case may be due to a simple oversight on the judge’s part.  Or, it may be that neither party at trial developed any evidence that would have supported findings under the appropriate factors.

When representing a client in any case where proof of trial factors is required to support the chancellor’s decision, be sure you present evidence to establish each and every one.  If you do not have proof on every factor, develop as many as you can.  If the judge renders an opinion at the conclusion of the case and does not address the applicable factors, ask her to adress them or to render a supplemental opinion doing so.  If the judge renders a written opinion and/or judgment, file an MRCP Rule 59 motion immediately, but not more than ten days after the judgment is entered, asking the court to address the factors based on the proof in the record.

You are setting the stage for a remand and a second, costly trip to court for your client if you don’t.

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