By: Ann Regan Bilbo, Esq. and Jeremy P. McNinch, Esq.
Grandparents often play a major role in the lives of children. Some grandparents see their grandchildren on a daily basis, while others may only see their grandchildren a couple of times a year, at best. In either case, most of us have many fond memories of good times with our grandparents, especially during the holidays. While visiting with grandparents is often a great thing, there is a fairly common misconception about grandparents’ “rights.” Many people believe that grandparents are entitled to visit with their grandchildren. As logical as that might seem, in short, there is no common law right to grandparent visitation. However, there are certain circumstances in which the grandparents can petition the court for visitation rights if the need arises.
Grandparents may request visitation rights in the following circumstances: 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. Miss. Code Ann. § 93-16-3.
Absent any of these scenarios, grandparents must prove a viable relationship with their grandchild(ren) and that the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child(ren). The grandparents must also prove that awarding them visitation rights would be in the best interest of the child. Miss. Code Ann. § 93-16-3. If there is more than one child involved, the grandparents must prove the viable relationship separately for each child. Aydelott v. Quartaro, 124 So. 3d 101 (Miss. Ct. App. 2013).
To show establishment of a viable relationship, grandparents must prove one of the following: that the grandparents voluntarily and in good faith supported the child financially for at least 6 months before filing the petition; that the grandparent had frequent visitation including occasional overnight visitation with the child for at least one year; or that the grandparents cared for the grandchild over a significant period of time during the time the parent had been in jail or on military duty that necessitates the absence of the parent from the home. Miss. Code Ann. § 93-16-3
If a grandparent does decide to petition the court for visitation rights, venue is proper in the county where an order of custody as to the child has previously been entered. If no custody order has been entered, then the grandparents’ petition shall be filed in the county where the child resides or may be found. Grandparents should also be aware that a court has discretion to award the parents their attorney’s fees and court costs for this type of action, regardless of the outcome of the petition. Miss. Code Ann. § 93-16-3.
The Mississippi Court of Appeals notes the importance of the narrowness of the grandparent visitation statute in Aydelott. “By placing limitations on who may petition for visitation, the criteria keep a grandparent’s statutory right to visitation from impermissibly encroaching on the parents’ rights to rear their children as they see fit.” Aydelott at 99.
One very, very important part of the grandparent’s visitation statute is the possibility that the grandparents can be forced to pay the parent’s attorney’s fees up front. According to the statute, “The court shall on motion of the parent or parents direct the grandparents to pay reasonable attorney’s fees to the parent or parents in advance and prior to any hearing, except in cases in which the court finds that no financial hardship will be imposed upon the parents.” This element of the statute also shows the Legislature’s deference to parents in these situations.
As we have written elsewhere on this website, the court’s ultimate goal in cases regarding children is to do what is best for the children. In the end, once we look past all the unique features of the grandparent’s visitation statute, we see that theme again, just as we should.