Mississippi Family Law Blog

Under the second scenario in Mississippi, Sec. 93-16-3 (2) states that in all other cases the grandparents can get visitation rights if the court finds:

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 his or her grandchild; and

That the visitation rights of the grandparent with the child would be in the best interests of the child.

In 2001, the Mississippi Supreme Court addressed the issue of grandparent visitation. Zeman v. Stanford, 789 So.2d 798 (Miss. 2001) In a divorce out of DeSoto County, a husband was granted custody of his two children while the wife was given visitation. The wife’s visitation was severely restricted after she was incarcerated in Arkansas. Her parents had a relationship with both children sharing weekly Sunday dinners and spending time with them at Christmas as well as other family celebrations. After the husband remarried, the grandparents’ visits with their grandchildren were restricted. The grandparents filed a motion seeking visitation rights of their grandchildren. The husband countered by suing for attorney fees as allowed under the statute. The Chancery Court granted visitation rights to the grandparents and the husband appealed.

On appeal, there were three key issues. The first was whether the chancellor applied the correction portion of the statute, section one or two. The husband argued that section one did not apply since the children’s mother was not dead nor were her parental rights terminated. The Court disagreed given the husband was granted sole custody of the children. As such, the wife’s parents were correct in asserting their rights under section one of the statute.

The court then addressed the husband’s second argument that the statute was unconstitutional. However, the Mississippi Supreme Court previously upheld the constitutionality of the Mississippi statute in Martin v. Coop, 693 So.2d 912 (Miss. 1997). In Martin, the Court held:

The Fifth and Fourteenth Amendments to the United States Constitution proscribe governmental interference with individual liberties such as a parent's right to determine his child's care, custody and management. However, this right is not absolute. The Mississippi Legislature has determined that a grandparent may petition the court for visitation if a parent has died. This statute does not deprive the parents of their right to raise their children by determining the care, custody and management of the child. Mississippi's grandparent visitation act does not intrude upon this parental liberty, and as such, it is constitutional.

Martin at 915. The husband finally argued that the chancellor erred in granting excessive visitation to the grandparents. The Court reiterated that the polestar consideration was the best interest of the child, although the grandparents should receive less visitation than normally granted a non-custodial parent. To make the determination of what is in the best interest of the children, the Mississippi Supreme Court held that the chancellor should apply ten factors previously identified in Martin v. Coop. Those were:

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 at 916. Given the chancellor in this case applied the factors and found the visitation was in the best interest of the children, the Court upheld his decision.

Therefore, if you are a grandparent whose child has died, had their parental rights terminated or severely restricted, and/or you had a close relationship with your grandchildren prior to the divorce and are not being allowed to see your grandchildren, you may be able to petition a court for visitation. Given your rights are dependent on the facts of the case, you need to seek the advice of an attorney. If you would like to discuss your potential rights, contact us at the Kisselburgh Law Firm to schedule an appointment.