Posts Tagged ‘grandparent visitation’

Grandparent Visitation…How to Get MORE

Friday, July 5th, 2019

Last summer, we wrote an article about how deployment in a military capacity is quite specifically addressed by our state laws. I am going to republish it in part (it has some minor redactions) below because it is very telling as to the affect of a parent being unavailable to exercise visitation under certain circumstances upon grandparent rights. After the bulk of this somewhat technical article, I will briefly discuss other parent unavailability issues, primarily incarceration of a parent. So, here we go……(this is long, but bear with me, it will be worth it!)

According to the Defense Manpower Data Center (under the Office of the Secretary of Defense), the United States currently has approximately 200,000 active-duty troops deployed across 170 countries.

The Uniform Deployed Parents Custody and Visitation Act (UDPCVA) was designed to resolve child custody and visitation issues that military families may face during a soldier’s deployment, temporary duty, or mobilization.

The UDPCVA is divided into five articles, with the first of these defining the foundational terms for the rest. Most importantly, Article 1 states that a parent’s “residence” is not changed during deployment and that deployment cannot be considered in deciding what is in “the best interest of the child.”

Article 2 discourages litigation on child custody and visitation issues by outlining procedural protections for simple agreements between parties.

This act also assists the UCCJEA* in preventing the issuance of competing orders via Article 3, which covers court procedures and includes the use of electronic testimony and the expedition of hearings.

In addition, this article allows for the designation of visitation rights to a nonparent where the court finds that doing so would be in the best interest of the child and Article 4 explains the termination process for these rights following deployment. Finally, Article 5 summarizes the information within each article.

Mississippi Code § 93-5-34 states that “Custody and visitation procedure upon parental temporary duty, deployment, or mobilization” follows the guideline provisions of the UDPCVA on these issues and answers my earlier hypothetical question regarding who would take care of the children similarly to Article 3. It states that “(4) If the parent with visitation rights receives military temporary duty, deployment or mobilization orders that involve moving a substantial distance from the parent’s residence or otherwise have a material effect on the parent’s ability to exercise rights, the court otherwise may delegate the parent’s visitation rights, or a portion thereof, to a family member with a close and substantial relationship to the service member’s minor child for the duration of the parent’s absence, if delegating visitation rights is in the child’s best interest.”

To answer the second question regarding the end of deployment, the same section of Mississippi Code contains a provision like Article 4 of the UDPCVA, stating that “(3) When a parent who has custody, or has joint custody with primary physical custody, receives temporary duty, deployment or mobilization orders from the military that involve moving a substantial distance from the parent’s residence having a material effect on the parent’s ability to exercise custody responsibilities:

(a) Any temporary custody order for the child during the parent’s absence shall end no later than ten (10) days after the parent returns, but shall not impair the discretion of the court to conduct a hearing for emergency custody upon return of the parent and within ten (10) days of the filing of a verified motion for emergency custody alleging an immediate danger of irreparable harm to the child; and

(b) The temporary duty, mobilization or deployment of the service member and the temporary disruption to the child’s schedule shall not be factors in a determination of change of circumstances if a motion is filed to transfer custody from the service member.

(c) Any order entered under this section shall require that:

(i) The non-deployed parent shall make the child or children reasonably available to the deployed parent when the latter parent has leave;

(ii) The non-deployed parent shall facilitate opportunities for telephonic, “webcam,” and electronic mail contact between the deployed parent and the child or children during deployment; and

(iii) The deployed parent shall provide timely information regarding the parent’s leave schedule.

Ok, so what effect would incarceration have on grandparent visitation in our state? What about if a parent or both are in a mental institution? What if they are, in a coma, God forbid? There is little case law wherein other unavailability issues have been hashed out by our appellate courts, although based on my experience courts are willing to bolster grandma and grandpa’s time for any of the above reasons even though no statute exists as it does for military deployments. My advice is to raise this issue with your attorney, it is a solid argument almost every time.

Matthew Poole is a Jackson, Mississippi Domestic Attorney with 16 years of trial experience. He will be speaking at the National Business Institute on July 18, 2019.

*For more information about this statute, go to our search bar on the home page of our site.