For many people, some of their fondest memories of childhood are times they spent with their grandparents. One of my earliest memories is me walking to downtown Quitman, hand-in-hand with my grandfather, to Slay’s store. I can still remember the smell of sawdust on the floor of its old-timey butcher shop.

(I digress, but that just goes to show how powerful the memories can be)

There are two situations in which a grandparent may have a court order visitation. The first is when the parent of the child has died or has otherwise lost parental rights. The other is when there was a pre-existing relationship with the grandchild.

Photo credit: Pingu1963

The Death of a Parent

I picture a grandparent’s rights to visitation as going through their child—that is, the child’s parent. When the parent dies or loses their legal rights as parent of the child, the grandparent’s rights go away.

I like to think that’s not true in most families; hopefully the surviving parent wants the grandchild and grandparent to have a good relationship. In reality, that does not always happen. I’ve seen several cases where bad blood between the grandparent and the widowed parent causes the parent to allow no contact with the grandchild.

In such a situation, the grandparent can petition the chancery court to order reasonable visitation.

Photo Credit: Brian Hathcock

An Established Viable Relationship

But what if both parents of the child are living, and the parents just don’t want the grandparent to visit the child?

In this situation, it is possible to obtain visitation, but it is more difficult. If you stop and think about it, it should be. A parent is presumed to know what is best for their child. This presumption is recognized by the legislature by making it more difficult for a grandparent to get visitation rights when both parents are living.

To overcome the parents’ desires to prohibit visitation, the grandparent must prove that there was an established viable relationship with the child. A “viable relationship” may be proven by showing the court that:

• the grandparent(s), voluntarily and in good-faith, supported the child financially for at least six months prior to filing the petition,
• there was  frequent visitation (including occasional overnight visitation) for at least one year, or
• the grandparent(s) cared for the child for a significant period of time during the parent’s absence due to jail or military service.

Where to File?

Where the parent’s rights have been terminated, the grandparents can file their petition for visitation in the county where the order of termination was entered. If the parent has died, then the petition must be filed in the county where the child resides.

If the grandparents are attempting to overcome parental restrictions on visitation, then they must file where an order of custody has previously been entered or where the child resides (if no such order has been entered).

For example, I believe establishing visitation on the first, third, and (when applicable) fifth weekends of the month to be preferable than saying visitation is to take place every other weekend. That way, you can look at a calendar and instantly tell when visitation is to take place as opposed to having count out weekends. Also, I think you need to define how to determine to which month a weekend belongs when a new month starts during the weekend.

A recent decision by the Mississippi Court of Appeals lends some support to my way of doing things. That court recently reviewed the Madison County case of Benal v. Benal. In that case, the judge failed to order specific visitation because that issue had not been submitted to the court for consideration.

Citing an earlier case, the Court of Appeals found that a specific visitation schedule must be addressed by the trial court if the issue of custody is submitted for resolution (the court may adopt the visitation schedule agreed upon by the parties). The Court of Appeals did not address how specific the schedule must be, and that will probably be the eventual subject of another case.