In decades gone by, it was not unusual for children and grandchildren to grow up and live in the community of the parents/grandparents for much of their mature lives. Grandparents have a special affection for their grandchildren. However, the movement of young adults from their parents’ communities in search of education and jobs in urban areas, and the increased incidence of (and decreased social stigma associated with) divorce – have placed strains on family closeness. Children have sometimes found themselves in the middle of a struggle of wills or disagreement between their parents and grandparents. This article will describe the current status of grandparents’ legal rights in Mississippi.
In July 1990, the Mississippi legislature enacted the Grandparents’ Visitation Rights Act. This law empowers a Chancery Court “to grant visitation rights with a minor child or children to the grandparents of such minor child or children” on the terms provided in the statute. The Act states that, where the court has awarded custody of the child to one parent, or has terminated a parent’s rights, or a parent has died, a grandparent whose child died or was not granted custody may file a petition with the Chancery Court seeking visitation. Also, the grandparent may petition the court for visitation where the grandparent (1) has established a “viable relationship” with the child and the parent has unreasonably denied the grandparent visitation, or (2) where the visitation of the child with the grandparent would be in the best interests of the child. “Viable relationship” is defined as having voluntarily provided financial support in whole or part for the grandchild for at least six months or having had frequent visitation including occasional overnight stays for at least one year.
Numerous courts have grappled with the issue of when grandparents (or others) might have legal access to children over the objection of the parents. In 2000, the United States Supreme Court addressed this question in the case of Troxel v. Granville. In that case, the Court ruled that a Washington State statute violated the due process clause of the Fourteenth Amendment by not giving deference to the parents’ rights in raising their children to limit with whom the children could associate. The Washington statute permitted “any person” at “any time” to apply to a court for visitation with “any child” which application shall be granted if it serves the child’s best interests. The Supreme Court ruled that Washington’s law, as written and interpreted, was too broad. Courts across the country have taken two approaches to the issue of grandparents’ rights following the Troxel case. The first approach presumes that parents have a “fundamental right” to raise their children as they see fit, including making decisions about which third parties should have access to their children. In order to overcome that presumption there must be a showing of compelling state interest, usually on the basis of preventing either physical or psychological harm to the children. The second approach compares the particular state law against the Washington statute to determine whether it is constitutional. In the states following this approach (including Mississippi), those that have upheld the state statute have found it to be narrower than the Washington statute and to require more than merely the best interests of the child as the measuring standard.
In the Mississippi case of Zeman v. Stanford, decided in May 2001, sole custody of two children, ages 7 and 10, was granted to their father. Their mother was granted regular visitation, but such visitation was restricted after she was subsequently incarcerated for attempted murder in Arkansas. The children had routinely eaten Sunday dinners, spent Christmases, and celebrated their cousins’ birthdays at their grandparents’ home prior to the divorce, and after the divorce their mother would bring the children to the grandparents’ home since she was living with them at that time. After the mother was incarcerated, the grandparents continued to visit with the children regularly until the fall of 1999, when their relationship with their son-in-law began to deteriorate. The curtailment of such activities was a factor in prompting the grandparents to file their petition seeking visitation rights. The trial court granted the grandparents visitation rights, finding that a viable relationship had been established between the grandparents and the children and that it would be in the best interest of the children to allow such visitation rights. The father challenged the constitutionality of the Act, arguing that the statute granted the Chancellor the unrestrained authority to invade the privacy of his family. The Court responded that, while the Fifth and Fourteenth Amendments to the United States Constitution prohibit governmental interference with individual liberties such as a parent’s right to determine his child’s care, custody and management, the Mississippi Act does not deprive the parents of such rights and is constitutional. The Zeman opinion emphasized that the best interest of the child must always remain the primary consideration.
The Court also set forth ten factors to be considered by a chancellor in determining grandparent visitation:
- The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, and disruptive separation from the natural parent for extensive lengths of time;
- The suitability of the grandparents’ home and amount of supervision received by the child;
- The age of the child;
- The age, and physical and mental health of the grandparents;
- The emotional ties between grandparents and the grandchild;
- The moral fitness of the grandparents;
- The distance of the grandparents’ home from the child’s home;
- Any undermining of the parent’s general discipline of the child;
- Employment of the grandparents and the responsibilities associated with that employment; and
- 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.
The Zeman decision has been echoed in later Mississippi cases and sets out the current framework for balancing the rights of parents and grandparents regarding time spent with grandchildren.