Pt. One. Grandparent Visitation, the Legislative Mandate…Sometimes

Like just about any other legal matter governed by state statute, the legislature has carved out certain situations in which grandma and grandpa have a right to see their grandchildren. The right to do so is not without its limitations, nor should it be. The matter is governed by MS Code Annotated section 93-16-3 (2013), and reads as follows;

Section One:

Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child’s parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.

Section Two:

Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:

(a) 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 the child; and

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

Section Three:

For purposes of subsection (2) of this section, the term “viable relationship” means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child, the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year, or the child has been cared for by the grandparents or either of them over a significant period of time during the time the parent has been in jail or on military duty that necessitates the absence of the parent from the home.

Section Four:

Any petition for visitation rights under subsection (2) of this section shall be filed in the county where an order of custody as to the child has previously been entered. If no custody order has been entered, then the grandparents’ petition shall be filed in the county where the child resides or may be found. The court shall on motion of the parent or parents direct the grandparents to pay reasonable attorney’s fees to the parent or parents in advance and prior to any hearing, except in cases in which the court finds that no financial hardship will be imposed upon the parents. The court may also direct the grandparents to pay reasonable attorney’s fees to the parent or parents of the child and court costs regardless of the outcome of the petition.

WOW…..talk about a mouthful of undecipherable legislative jargon. I want to cut through said jargon and simply point out a few key points that are applicable to the majority of those who are reading this article. No one cares to read legalise, sometimes not even the writer of this piece who, many moons ago, was not a lawyer. Let’s start by looking at the bones (basic structure) of the statute’s most commonly invoked provision.

The viability of the relationship is paramount to obtaining rights to see your grandkids. Other than the extreme scenarios mentioned in section one (1), which include death of a parent or the termination of their rights as a parent, viability is the cornerstone of the majority of grandparent litigation. As you can clearly see in section 2, the language is not entirely clear until we break down the fundamentals of the English language. The gist of it is that grandparents who have done the following are clearly entitled visitation rights:

1. Given 6 months of financial support to the child/children

2. Had a year of frequent visitation with some overnight visits as well

3. Cared for the child for a large amount of time because parents are not available due to military service or incarceration

The unusual thing that muddies the clarity of this section is that the word “or” only appears between prong 2 and prong 3…..which begs the question “do prongs one and two need to both be met? Or do they function separately?”. Even though less than clear, it appears that the legislature intended the latter…..they simply could have placed an “or” between all three prongs. Welcome to legislative lingual murkiness at its best. If you meet any one of the three prongs, you have demonstrated a viable relationship and your foot is in the door, so to speak. From there, you can begin the process of obtaining one of the most important familial rights available….time with the grandkids.

If you need help with a grandparent related legal issue, I have 16 years of experience dealing with some of the most complex related cases. Telephone consultation is always free of charge.

Matthew Poole is a 2001 Millsaps Second Century Scholar and 2003 Finalist at the University of Mississippi School of Law annual Steen, Reynolds, and Dalehite Trial Competition. He will speak to members of the bar for the National Business Institute on July 18 at the Pearl, MS Marriott.

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