Archive for the ‘HAPPY HOLIDAYS TO EVERYONE…ESPECIALLY GRANDPARENTS’ Category

HAPPY HOLIDAYS TO EVERYONE…ESPECIALLY GRANDPARENTS

Saturday, December 29th, 2018

As the year 2018 comes to an end, it is appropriate and perhaps customary to reflect on the events and happenings of the past twelve months and look forward to the New Year to come. This may be especially true of the members of families who have experienced the difficulties of a divorce and custody matter where children are divided between households.

In my previous article we explored some generic ways that we can make this time of year a bit more joyful for everyone with a specific focus on our children. If you haven’t read it yet, please do so soon, and if you have read it, we hope that you appreciate the common sense suggestion (and legal benefits that accompany these issues) of “Be Nice” that it promotes. For all our future blog entries, you may automatically infer and assume that “be nice” is a given. In this short work we will attempt to expound on “be nice”, but with a more specific focus on our parents: the grandparents of our beloved children. They are often the most valuable asset to young ones.

Pursuant to Section 96-16-3 of the Mississippi Code, a grandparent may be allowed visitation when the grandparent shows a viable relationship with his or her grandchild has been established, visitation with the grandchild has been unreasonably denied, AND visitation is in the grandchild’s best interest. (Emphasis provided). The AND in that sentence is not at all suggestive or subtle: it is a mandate that all 3 elements are proven. A grandparent must show to the Court that these three factors, cumulatively, exist in their case, else any legal action taken may be fatally flawed. As always, these elements are considered on case by case basis and the terms are subject to the interpretation, and significant weight given to each, is in the discretion of each individual Chancellor. That said, consider the following:

The Mississippi laws include provisions for grandparents to seek legal relief regarding child custody and/or visitation. In fact, calls and email inquiries involving Holiday visitation for grandparents are becoming more and more frequent. Of course the specifics are as diverse as the spread of individual dinner tables; of course, but the central and prevailing question is almost always the same: How can I get Grandparent’s rights so that I can see my grandchildren during the Holidays? It’s a fair question that usually would be easily solved if the adults in the children’s lives would all heed our prior advice repeated above. But not everyone can or will simply “be nice”. Those instances may require legal action, to-wit:

WHAT IS A VIABLE RELATIONSHIP?

A viable relationship is difficult to define, but it is something more than a Birthday card and a text every now and then to say “how is school?” and “I wish you would come see us sometime”. Those gestures are nice and I encourage this type of contact. If you have this relationship with your grandchild, keep it up and good for you! If not, then maybe you should seek to incubate and nurture a relationship. (Those words are chosen intentionally so that you will approach this with “baby steps”). You can’t be fake, it can’t be forced and it cannot be for reasons other than the love of the child. A viable relationship with a child, or anyone for that matter, is none of those things.

This generation of parents is unfortunately forced to rely on neighbors and friends and, thankfully, grandparents, in the day-to-day business of child rearing. Parents work, kids participate in school and after school activities. This is all healthy and normal, and time consuming. The grandparents that participate in this juggling act/struggle are more likely to fair well in their efforts to have meaningful time with the kids. And if they must press this matter to Court then their efforts will always be a factor and should be rewarded. That is not to say that a “score-card” is being kept, or that one should be kept. Do what you can when you can. Financial support and assistance for your grandchildren is also considered, but that alone will not convince the Chancellor that a viable relationship exists.

Some are more able to participate because of their job or transportation or schedule flexibility or what have you, and some simply cannot do it. They should not be punished, right? Yet some grandparents are able but maybe not so willing to help out when the parents are in a pinch. It’s not as easy to discern who can and who can’t. It’s much easier to figure out who will and who won’t. And so grandpa, ask yourself: when asked to pick up the kids from school or from soccer practice, are you the one in the carpool line? How flexible are you to host the kids for the weekend if asked? Do you offer to keep the scout fees current?

Suffice it to say that a “viable relationship” with your grandchildren is not formed overnight – it’s formed and developed and molded over many nights, months and years. A viable relationship is developed through the sacrifice of time on the part of the grandparent who attends the ballet recital and the baseball games. Are you this grandparent? Or are you too busy to develop a viable relationship with your grandchildren? The good news is that it’s never too late to start.

HAVE I BEEN UNREASONABLY DENIED VISITATION?

A grandparent who lives across the street, across town, or even across the State has a better chance of proving this element than does the one who lives across the country. But again, there is no easy “one size fits all” answer to this query.

Most grandparents would say that ANY denial of a request for visitation with the grandkids is in and of itself unreasonable. But we must assent to factors of the day such as school duties (homework, tests, etc) clubs and activities, or maybe a friend’s birthday party or a planned trip to the water park. In other words, are the requests for visitation interfering with some other important event? If it is, then perhaps the denial is not unreasonable after all. Furthermore, if the request for visitation includes extensive travel, it may simply be unreasonable to drive hundreds of miles for a few hours spent in front of the television with grandma. Perhaps a better question might be “Have I been unreasonably denied a reasonable request for visitation”? Whatever the situation and however geography, employment duties and other logistics play their parts, reasonable requests for visitation made by grandparents who have already formed a viable relationship should not be denied.

WHAT IS IN THE CHILD’S BEST INTERESTS?

This is the most important question for the Chancellor to ask and attempt to answer. I could (and very well may) write dozens of articles on this subject alone. This question is the polestar consideration for each and every case, as it should be. Ironically, we will spill the least amount of ink, as it were, on this third prong of the test after declaring it to be the most important.

Absent some extraordinary issues, we could all agree that time spent with the grandparents is consistent with our overall meaning of the phrase “best interests of the children”. To that end, parents reading this article should always want the best for their children and grandparents visitation, even if they are the parents of your ex, should be part of your routine whenever possible.

May God bless you and your family during this Holiday Season!!!

Matthew Poole is a Jackson, Mississippi lawyer who specializes in family law and domestic relations conflict resolution. Matthew was admitted to the Mississippi Bar Association in 2004 and was named Top 10 Family Lawyer in the State by the National Association of Family Attorneys in 2018.