Articles
MISSISSIPPI GRANDPARENTS' VISITATION RIGHTS STILL INTACT AFTER U.S. SUPREME COURT DECISION
Thomas W. Crockett author
The recent United States Supreme Court decision, Troxel v. Granville1, struck down as unconstitutional a state of Washington statute that allows courts to grant visitation rights to grandparents and others without the parents' consent. This decision in all probability, however, will not affect the visitation rights of Mississippi grandparents.
At issue was a Washington statute which allowed anyone at any time to obtain court ordered visitation rights with children if the court believed it to be in the best interests of the children, without regard to the parents' wishes. The Supreme Court stated that this statute was "breathtakingly broad" and violated parents' constitutional rights to make decisions regarding the rearing of their children.
The Troxel decision thus dealt with the difficult problems of parents' rights, grandparents' rights, and the rights of the state courts to determine the best interests of the children. That these are not clear cut issues is indicated by the fact that the nine justices of the Supreme Court produced six different opinions on this issue.
This decision, however, appears not to affect the statutory rights of Mississippi grandparents to visit their grandchildren, which are much more restrictive than those set out in the Washington statute. The Mississippi statute2 provides that grandparents may visit the grandchildren under the following conditions:
1. the grandparent's child who is the parent of the grandchild loses custody of the child for any reason, or dies; or
2. the grandparents can prove that (a) they have provided financial support to their grandchild for not less than six months, (b) they have had frequent visitation with the child, including overnight stays, for more than one year, (c) the parent or custodian of the child unreasonably denied the grandparent visitation, and (d) the visitation rights of the grandparent are in the best interest of the child.
That these restrictions are important is shown by the fact that the Court impliedly gave approval to the Mississippi statute by specifically contrasting the Mississippi statute restrictions on visitation to the unrestricted rights given by the Washington statute.
Under the decisions3 interpreting the Mississippi statute, the grandparents of a deceased parent are not entitled to the same visitation rights as the deceased parent's would have been. The extent of the visitation will be determined by the following factors: (1) amount of disruption extensive visitation will have on the grandchild's life, (2) suitability of grandparents' home with respect to amount of supervision received by the grandchild, (3) age of grandchild, (4) age and physical and mental health of grandparents, (5) emotional ties between grandparents and grandchild, (6) moral fitness of grandparents, (6) distance of grandparents' home from grandchild's home, (7) distance of grandparents' home from grandchild's home, (8) any undermining of parent's general discipline of grandchild, (9) employment of grandparents and responsibilities associated with it, and (10) willingness of grandparents to accept that rearing of child is parents' responsibility and that parents' manner of child rearing is not to be interfered with.
The statute also provides that the grandparents may be required to advance attorneys' fees to the parent prior to the hearing and will be taxed with reasonable attorneys' fees and court costs regardless of the outcome of the hearing.
In all probability, the Mississippi statute, because of these protections to the parents, is constitutional.
FOOTNOTES:
Thomas W. Crockett is a shareholder in Watkins Ludlam Winter & Stennis, P. A., which has offices at 633 North State Street, P. O. Box 427, Jackson, Mississippi 39205-0427; One Hancock Plaza, Suite 1125, 2510 14th Street (39501), P. O. Box 160, Gulfport, Mississippi 39502-0160; and 8925 East Goodman Road, P. O. Box 1456, Olive Branch, Mississippi 38654; tcrockett@wlslaw.com.
1. 2000 WL 712807 (U. S.)
2. Miss. Code Ann. §93-16-3
3. Martin v. Coop, 693 So. 2d 912 (Miss. 1997)
