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.