CONSTITUTIONAL: MARTIN FACTORS AND GRANDPARENT VISITATION
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.
WHO ARE THE PARTIES IN A GRANDPARENT VISITATION CASE? PART TWO
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[3] (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.
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