First of all let’s make clear that natural parents do have a presumptive right to have custody of their child. This is because the child’s best interest is presumed to be best served by being placed with natural parents. Custody can only be granted to a third party with clear and convincing evidence that the natural parent has either abandoned the child, is unfit to have custody, or engages in conduct which is so immoral as to be detrimental to the child’s best interests. However, in Mississippi the Supreme Court has reversed an award of custody to grandparents based on a chancellor’s finding that the natural father was unprepared to take custody as opposed to unfit to have custody of his children. In other words, there is a very high standard applied to these cases, although grandparents could potentially have custody of a child that is their biological grandchild, the bar is set fairly high as it should be. For instance, in one case the court denied a custody award to grandparents who made a claim that the mother abandoned the child. The mother left the child for several years in the care of the grandparents, however; she still sent gifts and maintained contact, even visiting with the child. She never stated that she was going to permanently give custody to the grandparents see Payne vs. Payne (Mississippi Supreme Court 1952).
Visitation rights also pose a difficult set of circumstances for most grandparents because although some states do permit grandparent visitation by statute, many including Mississippi rely also on common law principles. Mississippi will only permit a court to order a visitation of grandparents under a showing of either the custody is awarded to a parent and a parent dies, or a parent’s rights are terminated. The parents of the non-custodial dead or terminated parent may obtain visitation rights. Alternatively, if the grandparent had a viable relationship with the child, (which means they supported the child in whole or part for at least six months, had frequent visitation including overnight visitation for at least a year, and that the visitation order is in the best interest of the minor child) may also obtain rights to visit their grandchild. One case that gives grandparents some hope for visitation of their grandchildren under exigent circumstances is Galloway vs. Galloway (Mississippi Supreme Court 1996). In this instance the lower court ordered the grandparent be permitted visitation on every other weekend and on several holidays. The court of appeals did express concern over the extent of the visitation but did uphold the order because the visitation appeared to be in lieu of visitation by the father, who could not exercise it because of his military service.
It is also clear that grandparents do have rights to visit under certain circumstances once facts are shown that meet the threshold for the court’s approval, however; natural grandparents don’t have a right to visit grandchildren as comprehensive as the rights of natural parents –see Martin vs. Coop (Mississippi Supreme Court 1997). In summation, grandparents do have some hope for gaining visitation rights of their grandchildren in disputed custody matters however, it is not as comprehensive as that of a natural parent. Anything the grandparent can do to further the relationship between themselves and the child including exercising visitation at any time possible and supporting the child will be viewed in the best light if the case comes in front of a judge who has to make a determination in the furtherance of a child’s best interests. Remember the polestar consideration is the best interest of the minor child. (See Albright vs Albright which is located on our website mspoole.com). Also please let it be clear that even though the bar is set high, it doesn’t mean that grandparents should give up on having a viable relationship with their grandchild. There is hope! It does take a significant showing of fact and this can be done particularly for those who have made extensive efforts to have a relationship with their grandchild or for those people whose son or daughter is the biological parent who is unavailable to exercise visitation and or custody.Matthew Poole