Child Visitation in Mississippi

Before we discuss how visitation works, we should point out that there are two kinds of visitation orders: those that the chancellor signs after a full-blown trial, and those that the chancellor signs pursuant to the parents’ written agreement. Visitation orders that were agreed to are far more common than visitation orders that were imposed after a trial.

We make this distinction between visitation orders from trials vs. visitation orders from agreements because not many rules apply to the latter case. In other words, people can agree to rights and/or restrictions that the chancellor could not have imposed on them against their will.

For example, the law says that a chancellor can’t prohibit a parent from taking his teenager scuba diving (assuming that the child has the appropriate training and gear). But the chancellor can order that prohibition if the parents have agreed to it. Generally speaking, a chancellor can’t prohibit a father from having his girlfriend around the children, but the chancellor can order that prohibition if the parents have agreed to it.

There’s not much to write on the subject of the terms of visitation orders to which parents are allowed to agree. As long as it’s not adverse to the child’s best interests, a chancellor is likely to approve your visitation agreement.

But these agreements aren’t negotiated in a vacuum. As with all negotiations, parents gauge the reasonableness of a visitation proposal by comparing it with what a chancellor is likely to order if the case goes to trial. In other words, if you know the range of likely outcomes at trial, it’s easier to decide whether your ex’s proposal is reasonable.

So what visitation order will your chancellor enter if your case goes to trial? We can start with the basics.

Basic Visitation

The first question is whether the chancellor believes that you pose a danger to the child. If you have a history of:

• Violence (particularly domestic violence)

• Substance abuse (particularly recent substance abuse) or

• Abuse or negligence in your care of children

then you must be alert to the possibility that the chancellor will find that you pose a danger to the child. In those cases, you will be looking at an award of supervised or phased-in visitation, discussed below, or possibly even no visitation at all, until the chancellor decides that you no longer pose a danger.

If the chancellor does not believe that you pose a danger to the child, then at a minimum, you are entitled to an award of basic visitation. This consists of:

• 2 weekends/month

• 4–5 weeks each summer

This provides the non-custodial parent about 79 of the 365 days in a year, i.e., 21.6 percent of the year. We’ll show you the math in a minute.

Basic visitation could also include substantial periods of holiday visitation (e.g., spring break, Thanksgiving, Christmas), which of course increases the total percentage of time that the parent has the child during the year.

Weekends include the full weekend, i.e., overnight visitation. In other words, if the order provides that the child returns to the custodial parent’s house on Friday and Saturday night, then the non-custodial parent did not have a full weekend.

We should point out that Mississippi law does not use the term “basic visitation.” What we mean by that term is a bare minimum that a chancellor is supposed to award in the absence of the visitation parent’s violence, substance abuse, etc., discussed above. The Mississippi Supreme Court has said that in an ordinary case (one not involving abuse, neglect, drugs, violence, etc.), a chancellor is likely to be reversed on appeal if he does not order at least this bare minimum of visitation.

We are not saying that this is the only visitation that a non-custodial parent is entitled to. Instead, basic visitation is the starting point, the minimum that any fit parent is entitled to. The non-custodial parent in your case very well might be entitled to significantly more than this.

COUNTING DAYS AND NIGHTS

Before we go further, we should describe a helpful convention that lawyers use in adding up how much time a particular visitation schedule provides to each parent. You might think that the easiest way to do that would be to take the schedule in one hand and a calendar in the other, then plot out how many days are awarded to you vs. how many days are awarded to your ex.

But if you try that, you’ll find that it doesn’t work. The problem is that there’s no clear way to count the days when both parents have the child. For example, let’s say that on the Friday of your ex’s weekend with the child, you take the child to school, and your ex picks her up after school, keeping her all weekend, and taking her to school on Monday morning. That’s a common arrangement.

If you’re counting How many days with me vs. How many days with my ex, you have a problem. Do you count the Friday as a day with you or a day with your ex? After all, the child was with both parents during part of the day. What about the Monday that the child began with your ex but ended with you?

Also, let’s suppose that your visitation schedule provides that the child will be exchanged at noon on Christmas Day. Each parent gets precisely 12 hours with the child. Is that a Mom Day or a Dad Day? There’s no clear answer.

It can be unclear whether a day should be counted as a mom day or as a dad day. But there’s no such vagueness on the question of how a night should be counted. If the child spent the night with you, it was your night; if with your ex, then it was your ex’s night. In our example, your ex would be considered to have had the child on Friday, Saturday, and Sunday because the child spent those nights with your ex. Monday would be counted as yours because the child spent Monday night with you.

This explains why, when adding up how much time a visitation schedule awards to each parent, lawyers count nights instead of days. If a parent only receives five weeks of summer visitation (that’s 35 nights), and two weekends during the other 11 months (that’s four nights/month x 11 months; 44 nights total), then he gets 79 nights out of the year; 79 nights is 21.6 percent of 365 nights/year.

Typical Increase from Basic Visitation

If the non-custodial parent has a strong relationship with the child, he is likely to receive more than basic visitation. In this discussion, we are building out from a specific, concrete standard — the minimum visitation required by law — to something far more indefinite and abstract, the visitation that is in the child’s best interests.

In other words, the chancellor in every case is required to award visitation that is in the child’s best interests. An award of less than basic visitation is presumptively not in the child’s best interests. But beyond that, the optimal visitation that is in the child’s best interests is, at least to some extent, a judgment call.

If basic visitation is 79 nights (assuming zero holiday visitation), and a schedule awarding half of the time with the child is 182 nights, then there is a spectrum of between 79–182 nights/year that could be in the child’s best interests. How do you choose?

Here is a progression of the typical increases that we might see in negotiating away/building up from basic visitation weekends.

1. 6:00 p.m. on Friday to 6:00 p.m. on Sunday (basic visitation)

2. After school on Friday to 6:00 p.m. on Sunday

3. After school on Friday to beginning of school on Monday

4. After school on Friday to beginning of school on Tuesday when Monday is a school holiday (e.g., Labor Day)

5. After school on Thursday to beginning of school on Monday

6. After school on Thursday to beginning of school on Tuesday

7. In addition to weekend visitation, two afternoons/month, e.g., first and third Wednesday of each month, from end of school to 7:00 p.m.

8. In addition to weekend visitation, two overnights/month, e.g., first and third Wednesday of each month, from end of school to beginning of school Thursday morning

We could go on and on, adding afternoons and overnights until we reach the point where each parent has the children half the time. Remember, we’re listing settlement offers that parents commonly make in negotiating visitation.

Limits on What the Visiting Parent Can Do

The general rule is that when a parent is exercising visitation, that parent has the same decision-making rights as a custodial parent. This means that the other parent does not have the right to tell the other parent what to do/not do. We often see a custodial parent telling a non-custodial parent that he has to take the child to a birthday party, or a softball game, or some other activity that is scheduled to take place during the non-custodial parent’s period of visitation. Simply stated, the custodial parent has no right to tell the non-custodial parent what he has to do when the child is with him.

Similarly, the custodial parent might tell the non-custodial parent what he can’t do — you can’t take the child on a boat, or to hunting camp, or out of state, or to another country, or around your new girlfriend. The non-custodial parent has no duty to follow these prohibitions, unless they are imposed by the chancellor. Obviously a parent cannot put a child in an unsafe situation. Barring that, when a parent is exercising visitation, he can do what he wants. He can take the child to Alaska if he likes, as long as he gets the child back to the custodial parent on time.

The only prohibitions that the non-custodial parent has to follow are the ones imposed by the chancellor. What are the prohibitions that a chancellor can impose?

In one famous case, the Mississippi Supreme Court said that visitation rights of the non-custodial parent should be tantamount to custody with respect to the place and manner of exercise in which they are exercised, except in the most unusual circumstances. Something approaching actual danger or other substantial detriment to the children (as distinguished from personal inconvenience or offense to middle-class sensibilities) is required before a chancellor may restrict visitation.

Phased-in and Supervised Visitation

Sometimes the problem isn’t that the parent wants to do something with the child that the other parent finds objectionable. Sometimes the problem is that the visiting parent himself is objectionable. For example, suppose that:

• A parent poses a risk to the child’s safety (e.g., the parent has neglected or abused a child or has a history of substance abuse or violence)

• Other persons are likely to be around the child while in the parent’s care, if those other persons pose a danger to the child

In some situations, the arrangement that is in the child’s best interests is no visitation at all — or at least not until the dangerous situation has been resolved.

Even after the parent “cleans up his act,” the chancellor might be skeptical that the parent really has put the improper behavior behind him. For example, if a parent has been abusing drugs for years, he likely will not be restored to full visitation after being sober for just one week. Chancellors tend to look for an established history that proves that the parent really has resolved the problem once and for all (e.g., by getting sober, getting rid of an abusive boyfriend, establishing a stable residence/lifestyle, etc.).

Rather than terminate visitation altogether while the parent is cleaning up his act, chancellors have the ability to award a limited amount of visitation, which usually takes on at least one of these aspects:

• Supervised visitation. Ideally, one of the parents has a family member that the chancellor can trust to supervise the visitation so that (a) the child is never left alone with the parent; and (b) the family member will immediately terminate visitation if the parent behaves inappropriately. In the absence of a trusted family member who can serve as the supervisor, in many counties there are private services that will supervise visitation for a fee. In a pinch, some DHS offices will offer very limited supervised visitation (1–2 hours/week).

• Phased-in visitation. The parent is initially awarded very little time, but if nothing goes wrong and the parent continues “on good behavior,” the time is gradually increased to full visitation. For example, the progression might be (a) 1–2 hours every week or two; then
  (b) 4 hours/week; then (c) 8 hours on Saturday; then (d) 24 hours from Saturday morning to Sunday morning; then (e) 48-hour weekends, and so forth. The parent is given the opportunity to renew a healthy relationship with the child and to build a parenting history that he could not build if visitation had been terminated.

• Both. Sometimes, visitation will be both phased-in and supervised at the same time. These restrictions eventually fall off, not necessarily at the same time, as the visiting parent builds a history of being trustworthy. The rate at which the restrictions are removed is largely within the chancellor’s discretion and will depend in some measure upon the severity of the problem being remediated.

Other Limits on Visitation

Distance and Work Schedule. If a parent lives too far from the child to exercise regular, every-other-weekend visitation, the chancellor has the authority to tailor the visitation schedule to accommodate the needs of the parent and child. For example, if the mother and child live in Jackson but the father lives in Dallas (approximately six hours away), the chancellor would be concerned about the amount of time that the child would have to spend in the car going back and forth. Thus, the chancellor might order that the father can only have one weekend a month. However, the father might be awarded a longer weekend — say, from Thursday afternoon to Sunday afternoon — and the chancellor might also award more time during the holidays and during the summer. In a similar vein, if a parent has an unusual work schedule (e.g., working on weekends or at unusual hours), the chancellor is likely to tailor the visitation schedule to accommodate that situation.

Child’s Preference. We noted above that we’re often asked how old a child has to be before he can decide custody. The other question we often hear is how old does a child have to be before he can refuse visitation. As with custody, there is no such age.

Grandparent Visitation

There are two different roads that the grandparent can travel to obtain visitation. First, he can prove:

1. That the grandparent is a parent of a parent who has died, lost custody, or had his parental rights terminated; and

2. Visitation would be in the grandchild’s best interests (more on this below).

Or if the grandparent cannot prove all of the foregoing, then he can still have visitation if he can prove:

1. That the grandparent had established a viable relationship with the grandchild;

2. The grandchild’s parents unreasonably denied the grandparent visitation rights; and

3. Visitation would be in the grandchild’s best interests (more on this below).

The viable relationship mentioned above is not required if the visitation is sought due to the parent’s death, loss of custody, or termination of parental rights. A viable relationship means that at least one of these things happened before the grandparent visitation lawsuit was filed:

• Financial Support. The grandparent voluntarily provided financial support for the grandchild for at least six months before the lawsuit was filed; or

• Frequent Visitation. The grandparent had frequent visitation with the grandchild, including at least occasional overnight visitation, during the year before the lawsuit was filed; or

• Active Care. The grandchild was cared for by the grandparent over a significant period of time while the grandchild’s parent was in jail or absent from the home due to military duty.

To determine whether grandparent visitation is in the child’s best interest, the chancellor is required to consider 10 factors:

1. Potential disruption in the child’s life

2. Suitability of the grandparent’s home

3. The grandchild’s age

4. The grandparent’s age and physical/mental health

5. The emotional ties between the grandchild and the grandparent

6. The grandparent’s moral fitness

7. The physical distance between the child’s home and the grandparent’s home

8. Any undermining by the grandparent of the parents’ discipline

9. The grandparent’s employment responsibilities

10. The grandparent’s willingness to not interfere with the parent’s rearing of the child

These 10 factors are sometimes called the Martin Factors or the Martin v. Coop Factors, based on the name of the case in which the Mississippi Supreme Court directed chancellors to consider them in grandparent visitation cases.

How Much Grandparent Visitation is Awarded?

If grandparent visitation is awarded, in most situations it will not be as extensive as what a parent would be awarded. A good rule of thumb is one weekend/month, one to two weeks during the summer, and a few days of the “long holidays” (e.g., spring break, Thanksgiving, Christmas).

If the visitation is sought due to a parent’s deployment, which makes his exercise of visitation untenable, the grandparent should consider, rather than seeking grandparent visitation, proceeding under the statute that allows family members of deployed parents to exercise the deployed parent’s visitation.

Who Else Can Sue for Grandparent Visitation Besides Grandparents?

The statute that provides for grandparent visitation does not extend visitation rights to any other third parties, such as the child’s adult siblings, cousins, aunts, uncles, step-parents, foster parents, or even great-grandparents. As of this writing, the law does not permit any of these persons to sue for visitation rights with the child.