Great-Grandparents Not Entitled to Visitation

In Mississippi grandparents can seek visitation with their grandchildren through the courts. Recently the Mississippi Court of Appeals was tasked with determining whether or not such a right extended to great-grandparents.

In Lott v. Alexander (handed down March 11, 2014) the court of appeals ruled that grandparent visitation does not extend to great-grandparents, because the statute - which is clear and unambiguous - does not include or address great-grandparents.

If the legislature had intended the statute to cover any persons other than grandparents they would have included such language in the statute.

Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro-area. You can reach him at (601)-707-8953 or jtd@jonathantday.com.

Grandparent Custody

Regarding the custody of children, their is a presumption in in Mississippi in favor of the natural parents.

If a grandparent wished to obtain custody of their grandchild there are a couple of avenues by which that could potentially be accomplished. Traditionally they would need to overcome the parental preference by showing that the child's natural parent has become unfit or abandoned the child.

Unfit Parent
Showing parental unfitness can be a difficult standard to overcome. The grandparent must show that the parent engaged in conduct presenting a genuine serious danger to the child. Occasional intoxication and illegal drug use have previously proven insufficient to prove unfitness.

Abandonment
Parental abandonment of a child  is "any course of conduct on the part of a parent evincing a settled purpose to forgo all duties and relinquish all parental claims to the child." It must be proven by clear and convincing evidence. It could consist of a single act or a series of actions. What constitutes abandonment can be tricky to determine, however, the trend would be the longer a parent has gone without contact with their child, the more likely they will be determined to have abandon it.

More recently, Mississippi has acknowledged alternatives to the traditional rule that may allow grandparents to obtain custody if a parent has deserted or constructively abandoned a child, or has relinquished legal custody of a child.

Constructive Abandonment
Constructive abandonment  is a "voluntary abandonment of parental responsibility" and removal from "active participation in a child's life" for a duration of time long enough that the effect is the same as actual abandonment. Constructive abandonment comes into play whenever a natural parent may see the child often enough to avoid loss of custody through actual abandonment, but has in effect abandoned the child. One example was a 2002 case where a mother had left her daughter with grandparents for eleven years, but did contact and visit the child. The grandparents were awarded custody of the grandchild due to the mother's constructive abandonment.

Desertion
Desertion, while it sounds similar to abandonment, is a different concept. While abandonment involves relinquishing parental rights, desertion involves inaction or avoidance of a duty. One example was a father who allowed his daughter to live with her grandmother for four years, during which time the father only sporadically visited. He was found to have deserted his daughter. There certainly appears to be overlap in the types of circumstances that might qualify as constructive abandonment or desertion. Perhaps the primary difference is that a finding of desertion does not immediately call for a transfer in custody, but instead triggers an Albright analysis to determine which arrangement would be in the child's best interests.

Parental Relinquishment of Legal Custody
If a natural parent has voluntarily relinquished custody of a minor child in court, then they also forfeit their parental preference presumption regarding child custody determinations. This applies more in situations where a parent has previously legally given up custody of their children, and then later try to regain custody. In that situation there is no longer a parental preference and the parent must show that a change in custody would be in the child's best interests.

Grandparents want what is best for their grandchildren. In an ideal world children would grow up with two great parents that love them. This is not always the case. Sometimes the kids need help out of a bad situation.

If you have been the primary caretaker for your grandchildren for some time now, or if you know that your grandchildren are in a bad situation at home with a natural parent - contact a family lawyer today to discuss what options you may have as a grandparent.

Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro area. He understands that not all kids have an ideal home life, but grandparents can help.

Grandparent Visitation

Mississippi expressly allows for grandparent visitation by statute. The statute permits grandparent visitation in a couple of instances - such as if a parent dies, loses custody, or loses parental rights. Should one of these things occur, the grandparents may petition the court for visitation with their grandchild. Visitation may be granted if the court finds that such an arrangement would be in the child's best interests.

Additionally, the grandparent visitation statue allows for grandparents to petition the court for visitation under a different set of circumstances. If the grandparent had a viable relationship with the child, the parent or custodian of that child unreasonably denied visitation with the grandparent, and visitation would be in the child's best interests, the court my grant the grandparents visitation.

Grandparents can prove that they have a viable relationship with the grandchild by showing that they have provided some financial support for the child for at least six months, or by showing they had frequent visitation with the child, including overnight visits, for at least one year.

Then, if a grandparent can meet the statutory requirements for visitation, the court will consider the Martin v. Coop factors to determine whether visitation would be in the child's best interests. Those factors are:

1) Potential disruption in the child's life
2) Suitability of the grandparents' home
3) The child's age
4) The age and physical and mental health of the grandparents
5) The emotional ties between grandparent and child
6) The grandparents' moral fitness
7) Physical distance from the parents' home
8) Any undermining of the parents' discipline
9) The grandparents' employment responsibilities
10) The Grandparents' willingness not to interfere with the parents' rearing of the child

Of course grandparent visitation, if granted, will not be as large as parental visitation, but you will be able to see your grandchildren more often and regularly.

If you have been denied time with your grandchildren, be sure to contact a family law attorney to inform you about your rights - you may be able to obtain visitation rights through the courts.

Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro area. He knows how much grandparents enjoy spending time with their grandchildren!