The Mississippi Grandparents’ Visitation Act, Mississippi Code Annotated section 93-16-3 (Rev. 2013), provides as follows:

(1) 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.

(2) 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.

A recent case considered the two types of grandparents recognized in the statute and what they may be required to prove to establish visitation rights with children of their deceased child.
Harold and Kim McKinney are the parents of Shelida’s late husband, Jason McKinney, who died in an automobile accident in 2012. Jason is survived by Shelida and their three minor children: Kaylee, Zachary and Kara.  In April 2013, the grandparents filed a complaint against Shelida to establish reasonable grandparent-visitation rights under Mississippi Code Annotated section 93-16-3(1).  Shelida denied the grandparents’ allegation that she had denied them reasonable visitation with their grandchildren since Jason’s death and asked the chancery court to dismiss the complaint. However, the parties agreed to a temporary order allowing the grandparents visitation on the first, third, and fifth Saturday of each month from 12:00 p.m. to 5:00 p.m., beginning August 17, 2013, and ending upon the chancery court’s final determination of visitation.
At the hearing, Shelida testified that she had allowed the grandparents to visit with the children when there was no conflict with the children’s schedule. She testified that Monday was often the best day to schedule a visit because the rest of the week was busy with after school activities, homework, and visits with friends. Shelida also testified that when Jason was alive, the grandparents were not very involved with the children, other than visits on special occasions and when she needed their help. Shelida agreed that “it was a good idea for the kids to have a relationship with the [grandparents]” but testified that the grandparents disrespected her authority as a parent.
Harold testified that, while Shelida allowed them to see their grandchildren, they were not allowed a “reasonable” amount of visitation. Harold further testified that, prior to Jason’s death, they would see their grandchildren three or four times a week and that they all had a close relationship. Harold stated that he and Kim lived about two miles from Shelida and the grandchildren. He also stated that when they would attempt to visit after Jason’s death, Shelida would turn them away because “[the children were] busy or doing something all the time.]” Harold further stated that he was willing to take the children to their Saturday activities if he and his wife were allowed visitation on that day. He could not recall ever interfering with Shelida’s raising or disciplining of the children.
The Mississippi Court of Appeals ruled:  “It is clear from even a casual reading of the statute that the statute recognizes two different categories of grandparents. The first category includes the grandparent of a minor child who has lost one of his or her parents, section 93-16-3, subsection (1), and the second category is a grandparent not described in subsection (1). In other words, the grandparent of a child who has both parents living falls under section 93-16-3, subsection (2). It is also clear from a reading of the statute that a grandparent falling under subsection (2) may petition a chancery court for visitation, and the visitation may be granted, provided the court finds that the grandparent meets the requirements of subsections (a) and (b) of section 93-16-3(2) – that is, the grandparent has established a viable relationship with the child, the parent or custodian of the child has unreasonably denied the grandparent visitation rights, and visitation would be in the best interests of the child.
. . . Here, it is clear that the grandparents fall in the first category of grandparents discussed above, because of the death of their son, Jason. So the question is: are the grandparents required, as Shelida argues, to show that they have been unreasonably denied visitation with their grandchildren when the subsection of the statute authorizing them to petition for visitation is silent as to the prerequisite(s) for granting visitation? The grandparents point out that the argument that Shelida makes here was made and rejected in Zeman v. Stanford, (citation omitted). We agree. The chancery court did not err in finding that since the grandparents’ petition for visitation was properly brought under section 93-16-3(1), the grandparents were not required to meet the requirements of section 93-16-3(2).
“For guidance, our supreme court has listed ten factors that should be considered in determining grandparent visitation. The factors are as follows:

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 v. Coop, 693 So. 2d 912, 916 (Miss. 1997). In arriving at the decision to grant the grandparents visitation, the chancery court considered the best interests of the minor children and each of the Martin factors and ultimately fashioned an appropriate visitation schedule.
McKinney v. McKinney, NO. 2014-CA-00614-COA (Sept. 2015).
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