Dalphanie Lofton v. Ruby N. Lofton , 2015 Miss. App. LEXIS 537 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-00226-COA
DALPHANIE LOFTON AND PATRICK APPELLANTS
JOHNSON
v.
RUBY N. LOFTON APPELLEE
DATE OF JUDGMENT: 02/11/2014
TRIAL JUDGE: HON. JOE DALE WALKER
COURT FROM WHICH APPEALED: SIMPSON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS: JEANINE M. CARAFELLO
ATTORNEY FOR APPELLEE: RUBY N. LOFTON (PRO SE)
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: AWARDED VISITATION TO
GRANDMOTHER
DISPOSITION: AFFIRMED: 10/20/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
GRIFFIS, P.J., FOR THE COURT:
¶1. Ruby Lofton filed a petition for grandparent visitation in Simpson County Chancery
Court. Ruby sought visitation with her daughter’s child, Lauren.1 The chancellor awarded
visitation to Ruby. Dalphanie Lofton and Patrick Johnson, Lauren’s mother and father,
appeal. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Lauren was born in January 2010. From January 2010 to October 2012, Lauren and
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To protect the privacy of the minor child, this Court uses a fictitious name.
Dalphanie lived with Ruby. While Dalphanie worked, Ruby and her mother, Bobbie Nell
Lofton, looked after Lauren. During this time, Ruby also provided periodic financial
assistance to Dalphanie and Lauren.
¶3. Prior to October 2012, Ruby and Bobbie Nell took Lauren to the emergency room on
two separate occasions. As a result of these two visits, the Department of Human Services
(DHS) opened two investigations of Patrick. A no-contact order went into place but was
rescinded in October 2012, after which Dalphanie and Lauren moved in with Patrick.
¶4. After this move, Dalphanie prevented Ruby from seeing Lauren. Ruby subsequently
filed a petition for grandparent visitation on April 22, 2013. The chancellor held a hearing
on January 23, 2014. The chancellor found that visitation was in Lauren’s best interests and
awarded visitation. The order, entered on February 11, 2014, stipulated to two afternoon
visits that progressed to one overnight visit a month, and finally to one weekend visit per
month. Dalphanie and Patrick appeal this judgment.
STANDARD OF REVIEW
¶5. “‘Visitation and restrictions placed upon it are within the discretion of the chancery
court.’ We are ‘bound to accept the findings of the chancellor unless he is manifestly wrong
or there is clearly an abuse of discretion.’” Arrington v. Thrash, 122 So. 3d 144, 148 (¶13)
(Miss. Ct. App. 2013) (citation omitted). “Chancellors are afforded wide latitude in
fashioning equitable remedies in domestic relations matters, and their decisions will not be
reversed if the findings of fact are supported by substantial credible evidence in the record.”
Walley v. Pierce, 86 So. 3d 918, 920 (¶8) (Miss. Ct. App. 2011) (quoting Henderson v.
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Henderson, 757 So. 2d 285, 289 (¶19) (Miss. 2000)). But “[w]hen reviewing a chancellor’s
interpretation and application of the law, our standard of review is de novo.” Vaughn v.
Vaughn, 56 So. 3d 1283, 1288 (¶17) (Miss. Ct. App. 2011) (citing Tucker v. Prisock, 791 So.
2d 190, 192 (¶10) (Miss. 2001)).
ANALYSIS
A. Merits of the Appeal
¶6. Dalphanie and Patrick argue on appeal that: (1) Ruby did not prove that Dalphanie and
Patrick unreasonably withheld visitation, and (2) Ruby failed to meet her burden to show
visitation was in Lauren’s best interests. In her pro se brief, Ruby counters that the
chancellor did not err in his findings.
¶7. Mississippi Code Annotated section 93-16-3(2) (Rev. 2013) establishes the framework
for grandparent visitation. A grandparent may petition for visitation “when [she] has shown:
(1) that a ‘viable relationship’ with [her] grandchild has been established, (2) that visitation
with the grandchild has been unreasonably denied by the grandchild’s parent, and (3) that
visitation is in the best interest of the grandchild.” Aydelott v. Quartaro, 124 So. 3d 97, 100
(¶9) (Miss. Ct. App. 2013) (citing Miss. Code Ann. § 93-16-3(2)).
¶8. To prove a viable relationship, a grandparent must show “[she has] voluntarily and
in good faith supported the child financially in whole or in part for a period of not less than
six (6) months . . . [and] had frequent visitation including occasional overnight visitation with
said child for a period of not less than one (1) year.” Miss. Code. Ann. § 93-16-3(3) (Rev.
2013). The parties agree that Ruby and Lauren have a viable relationship. Lauren and
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Dalphanie lived with Ruby for over two and a half years. Ruby also provided some financial
support to Lauren during this time. The parties dispute, however, that Dalphanie and Patrick
unreasonably denied visitation.
¶9. Dalphanie and Patrick contend that they did not unreasonably deny visitation because
Ruby never requested to see Lauren. However, testimony showed that circumstances
interfered with Ruby’s ability to visit Lauren. First, Ruby testified that Dalphanie changed
her phone number and ceased communication with Ruby. Additionally, Ruby, Dalphanie,
and Patrick also testified about an incident at Dalphanie and Patrick’s apartment complex,
which resulted in Ruby’s banishment from the complex. Ruby also testified that when she
saw Lauren in town, whoever was with her would keep Ruby from approaching her. Thus,
the evidence indicated that Ruby could not easily request visitation.
¶10. Alternatively, Dalphanie and Patrick argue that if they did deny Ruby visitation, it was
reasonable. At the hearing, Dalphanie and Patrick testified they denied visitation because
Ruby and Bobbie Nell initiated the two DHS cases against Patrick. Dalphanie and Patrick
admitted, however, that while they believed Ruby and Bobbie Nell reported Patrick, they had
no proof. Further, Ruby and Bobbie Nell testified that neither of them filed a complaint with
DHS against Patrick.
¶11. “The determination whether parents are unreasonable in denying visitation in whole
or part to grandparents is not a contest between equals. Parents with custody have a
paramount right to control the environment, physical, social, and emotional, to which their
children are exposed.” Stacy v. Ross, 798 So. 2d 1275, 1280 (¶23) (Miss. 2001) (citations
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omitted). In Stacy, the Mississippi Supreme Court found the record did not support the
chancellor’s findings that the parents unreasonably denied visitation. Id. at 1282 (¶29). The
supreme court found the circumstances did not justify the extent of the visitation ordered by
the chancellor. Id.
¶12. Unlike in this case, however, the parents in Stacy were willing to allow some form of
visitation. Id. at (¶28). Here, Dalphanie and Patrick denied all visitation. Further, the
chancellor found that based on their assumptions, Dalphanie and Patrick prevented any
visitation with Lauren. The chancellor concluded that Dalphanie and Patrick’s belief that
Ruby and Bobbie Nell reported to DHS was unfounded and, therefore, unreasonable. As
such, the chancellor did not err in finding Dalphanie and Patrick unreasonably denied
visitation.
¶13. Lastly, Dalphanie and Patrick argue the chancellor erroneously found that visitation
with Ruby was in Lauren’s best interests. To determine whether grandparent visitation is in
the best interests of the child, the chancellor must consider the factors set forth by Martin v.
Coop, 693 So. 2d 912, 916 (Miss. 1997). The Martin factors include:
1. The amount of disruption that extensive visitation will have on the
child’s life. This includes disruption of school activities, summer
activities, as well as any disruption that might take place between the
natural parent and the child as a result of the child being away from
home for extensive lengths of time.
2. The suitability of the grandparents’ home with respect to the amount of
supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
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5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents’ home from the child’s home.
8. Any undermining of the parent’s general discipline of the child.
9. Employment of the grandparents and the responsibilities associated
with that employment.
10. The willingness of the grandparents to accept that the rearing of the
child is the responsibility of the parent, and that the parent’s manner of
child rearing is not to be interfered with by the grandparents.
Id. The Martin court continued: “[N]one of these factors should receive more weight in the
chancellor’s analysis than any other. These factors are further not all-inclusive. The
chancellor should weigh all circumstances and factors he feels to be appropriate.” Id.
¶14. Dalphanie and Patrick allege the chancellor failed to make a proper finding as to all
of the Martin factors. Specifically, they argue the chancellor failed to address the first two
factors: whether visitation would disrupt Lauren’s life, and whether Ruby’s home was
suitable.
¶15. The chancellor detailed his findings of the Martin factors at the conclusion of the
hearing. The chancellor specifically found that Lauren’s age of four favored an interaction
with Ruby, Ruby was in good health and only fifty years old, Ruby and Lauren likely shared
emotional ties, Ruby lived only ten miles from Lauren, and Ruby had worked in steady
employment for the previous ten years and rarely worked weekends. Though there was some
testimony questioning Ruby’s moral fitness, the chancellor found the evidence was
insufficient to show she was morally unfit. Further, Ruby testified she would uphold the
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parents’ reasonable discipline of Lauren and not interfere with the parenting of Lauren.
These factors favored visitation.
¶16. The chancellor did, however, fail to address whether the visitation would be disruptive
or if Ruby’s home was suitable. “This Court has held that ‘making findings of fact under the
Martin factors is an integral part of a determination of what is in the best interests of a
child.’” Townes v. Manyfield, 883 So. 2d 93, 96 (¶18) (Miss. 2004) (quoting T.T.W. v. C.C.,
839 So. 2d 501, 505 (¶12) (Miss. 2003)). “However, it is presumed on appeal that the
chancellor has taken all factors into consideration.” T.T.W., 839 So. 2d at 505 (¶11).
¶17. The supreme court reversed and remanded in both Townes and T.T.W. because the
chancellors failed to sufficiently consider all of the Martin factors. Townes, 883 So. 2d at
97-98 (¶30); T.T.W., 839 So. 2d at 506 (¶17). In Townes, the supreme court found the record
lacked any consideration by the chancellor of the Martin factors. Townes, 883 So. 2d at 97
(¶28). Further, the chancellor in T.T.W. failed to consider nine of the ten factors. T.T.W.,
839 So. 2d at 505-06 (¶13).
¶18. In Morgan v. West, 812 So. 2d 987, 992 (¶14) (Miss. 2002), the supreme court found
the chancellor failed to adequately address six of the ten factors, including disruption to the
child and the suitability of the grandparent’s home. The supreme court’s analysis of these
two factors illustrated the deficiencies in the chancellor’s findings. Id. at 992-93 (¶¶15-17).
¶19. The supreme court found the chancellor improperly considered the disruption factor
because the custodial parent, the noncustodial parent, and the grandparent lived in three
separate parts of the state, and the parents objected to the disruption in the child’s life due
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to the extensive travel involved. Id. at 993 (¶16). In contrast, Ruby and Dalphanie lived only
ten miles apart, both of Lauren’s parents lived together, and Ruby’s visitation would not
interfere with Lauren’s activities. The Morgan court also raised concerns of whether the
grandparent home was suitable when the parent had not met the grandparent’s new husband.
Id. at (¶17). Here, Ruby lives with another daughter and grandchild, the home contains four
bedrooms and three bathrooms, and Lauren would stay in the same room as when she and
Dalphanie lived with Ruby. These two factors favored visitation.
¶20. Unlike in Townes, T.T.W., and Morgan, the chancellor here clearly considered the
majority of the Martin factors. Though the chancellor did not make specific findings on the
two factors discussed above in his analysis, the testimony was sufficient to conclude that the
chancellor considered all of the factors in his decision. Therefore, the chancellor did not err
in applying the Martin factors, and the award of grandparent visitation was in Lauren’s best
interests. We affirm.
B. Jurisdiction
¶21. The dissent addresses the issue of jurisdiction, which neither party raised. The dissent
would vacate and remand the chancery court order, finding the chancery court did not have
jurisdiction. We disagree.
¶22. Ruby brought a pro se2 petition for grandparent visitation against Dalphanie and
Patrick. Ruby alleged that Dalphanie and Patrick were the “birth parents” of the child.
Dalphanie and Patrick were represented by Jeanine Carafello, and because this was a
2
One week after the petition was filed, attorney Wesley Broadhead entered an
appearance on behalf of Ruby. Ruby filed a pro se appellee’s brief.
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Mississippi Rule of Civil Procedure 81 matter, no answer was filed.
¶23. The record contains sufficient evidence to establish the chancery court’s jurisdiction.
Considering the record in the order of the witnesses presented, Ruby testified to the
following on cross-examination by Carafello:
Q. . . . [Y]ou’ve been adamant in your testimony that you will not
recognize that – despite your sworn petition – that Mr. Johnson is your
granddaughter’s natural biological father; is that fair to say?
A. Excuse me, now.
Q. Your whole testimony today, you have refused and fought like a cat and
dog to not have to say that Mr. Johnson is [Lauren]’s dad; is that fair to
say?
A. He don’t know. And I don’t either.
Q. Okay. All right. So despite the animosity between you and Mr.
Johnson and the previous escapades and fights and cops and whatnot,
you’re not even willing to tell [Lauren] that Mr. Johnson is her daddy,
are you?
A. I’m not what now?
Q. You’re not willing to even tell your own granddaughter that Mr.
Johnson is her own daddy, are you?
A. I don’t know if he is her daddy or not.
Q. And you think that that’s in her best interest? Yes or no[?]
A. She’s calling a man daddy that she don’t even know is her daddy. I feel
like that’s her mom’s place to let her know whether that’s her real
daddy or not, but she don’t know.
Ruby then testified to the following on redirect by Broadhead:
Q. You don’t know whether or not Dalphanie has had a paternity test done
with Patrick Johnson and [Lauren,] do you?
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A. Not as far as I know.
Q. You just don’t know, do you?
A. I just don’t know.
Just before taking a lunch break, the following discussion occurred:
Court: . . . [B]ut let me ask y’all both while we [are] on the record. Do
y’all have any DNA test or anything to show that Mr. Johnson
is [Lauren]’s father? Has that been done?
Carafello: I have nothing. No.
Court: I just wanted to know if something had been done and if we
know he is. I know he’s a party to this.
Carafello: Yes.
Court: Because he’s listed as a party. But we don’t know whether there
is a DNA test that he is the father or not?
Carafello: No. They said that there is none. No.
Court: And someone else is listed on the birth certificate, right?
Carafello: Yes, Your Honor.
Court: And he has been determined not to be the daddy of the child by
a DNA test; is that correct?
Carafello: Yes, Your Honor.
Court: Is anybody paying child support on this child?
Dalphanie: He is.
Court: Is there a Court order for him to pay child support on this child?
Carafello: Out of this Court.
Court: Where is a copy of that order?
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Carafello: I don’t have a copy of it. There’s a copy of it downstairs, Your
Honor.
Court: Will you get it here in this lunch break, if you can. If you need
additional time, there’s no problem. I would just like to see that,
to see if there has been an adjudication.
Carafello: Yes.
Court: Or if for some reason other than adjudication he’s paying child
support. Okay?
Carafello: Yes, Your Honor, I will do that.
After the lunch break, the following occurred:
Broadhead: . . . Your Honor, for the record during the break, Ms. Carafello
went and pulled the court file from the Department of Human
Services as it relates to Mr. Johnson.
Court: [Examines File.] Have you looked at this?
Carafello: Yes, Your Honor.
[OFF-THE-RECORD DISCUSSION AT THE BENCH.]
Court: Go ahead.
Broadhead: Judge, can the parties for the record state on the record that
we’re not challenging paternity and there is an order in the court
file. From Ruby Lofton. We see that order in the court file and
are not challenging it.
Carafello: Yes, Your Honor. On behalf of Mr. Patrick Johnson, we’re not
challenging the December 20, 2010 judgment determining
paternity and other relief in cause number 10-397.
Court: So we’re both on the record, and for and on behalf of your
clients, you’re saying they’re not challenging it?
Carafello: Yes, Your Honor.
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¶24. Dalphanie then testified to the following questioning on direct examination by
Carafello:
Q. Who lives with you?
A. My daughter . . . and Patrick.
Q. And Patrick is [Lauren’s] biological father?
A. Yes, sir. Yes, [m]a’am.
¶25. Patrick then testified to the following questioning on direct examination by Carafello:
Q. Who lives with you?
A. Dalphine Lofton and [Lauren].
Q. And are you the biological father of [Lauren]?
A. Yes, [m]a’am.
¶26. Mississippi Code Annotated section 93-16-1 (Rev. 2013) provides: “Any court of this
state which is competent to decide child custody matters shall have jurisdiction to grant
visitation rights with a minor child . . . to the grandparents of such minor child . . . as
provided in this chapter.” Section 93-16-3(2) controls whether Ruby may obtain visitation
rights. Mississippi Code Annotated section 93-16-5 (Rev. 2013) dictates who must be made
a party to a grandparent-visitation action. Section 93-16-5 reads:
All persons required to be made parties in child custody proceedings or
proceedings for the termination of parental rights shall be made parties to any
proceeding in which a grandparent of a minor child or children seeks to obtain
visitation rights with such minor child or children; and the court may, in its
discretion, if it finds that such visitation rights would be in the best interest of
the child, grant to a grandparent reasonable visitation rights with the child.
Whenever visitation rights are granted to a grandparent, the court may issue
such orders as shall be necessary to enforce such rights and may modify or
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terminate such visitation rights for cause at any time.
¶27. To terminate parental rights, Mississippi Code Annotated section 93-15-107(1) (Rev.
2013) requires the following be parties: “the mother of the child, the legal father of the child,
and the putative father of the child, when known.” The dissent does not specifically state
who Ruby Lofton should have previously joined or must join on remand. However, the
dissent’s opinion implies that Fredrick Thornton is the “legal” or “putative” father who must
be joined for the chancery court to have proper jurisdiction. The dissent recognizes that
Fredrick was listed on Lauren’s birth certificate, which is not in the record, as her father, and
that he ended the relationship with Dalphanie and Lauren when he learned he was not her
biological father.
¶28. We do agree with the dissent that Ruby’s testimony did not establish jurisdiction. She
said she did not know who Lauren’s father was. However, Dalphanie’s and Patrick’s
testimonies, which were elicited by their own attorney, confess that they are Lauren’s mother
and father. Further, they are the two individuals who control the custody of Lauren. There
was no evidence that Fredrick asserted any rights whatsoever as Lauren’s parent. We find
that the chancery court had jurisdiction under section 93-16-5.
¶29. THE JUDGMENT OF THE CHANCERY COURT OF SIMPSON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
IRVING, P.J., BARNES, ISHEE, MAXWELL AND WILSON, JJ., CONCUR.
CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY
LEE, C.J., FAIR AND JAMES, JJ.
CARLTON, J., DISSENTING:
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¶30. I respectfully dissent from the majority’s opinion. Mississippi statutory law and
caselaw establishes that a minor child’s parents, whose parental rights have not been
terminated, constitute necessary parties to a proceeding for grandparent visitation. See
Bolivar v. Waltman, 85 So. 3d 335, 337 (¶¶7-9) (Miss. Ct. App. 2012); Miss. Code. Ann. §
93-15-107 (Rev. 2004); Miss. Code Ann. § 93-16-5 (Rev. 2004). During the chancery court
hearing on Ruby’s petition for grandparent visitation, testimony revealed that the child’s
biological father is unknown. Furthermore, the record is ambiguous as to the identity of the
child’s legal father.
¶31. I find the record fails to reflect that all the necessary parties were served notice and
joined in this action. Without proper joinder of, and notice by service of process to, all the
necessary parties to this action, including the child’s father, the chancellor lacked jurisdiction
to award grandparent visitation. See Bolivar, 85 So. 3d at 337 (¶¶7-9).3 As a result, I would
vacate the chancellor’s judgment and remand this case to chancery court for further
proceedings. On remand, all necessary parties should be joined in this proceeding before the
chancellor applies the grandparent-visitation statute4 and the Martin5 factors to determine
whether to award grandparent-visitation rights.
¶32. The record reflects that Dalphanie gave birth to her daughter in 2010. At the time,
Dalphanie was engaged to Fredrick Thornton, whom the child’s birth certificate identifies
3
See also M.R.C.P. 19 (discussing joinder of persons needed for just adjudication);
M.R.C.P. 21 (discussing misjoinder and nonjoinder of parties).
4
Miss. Code Ann. § 93-16-3 (Supp. 2012).
5
Mart. v. Coop, 693 So. 2d 912, 916 (Miss. 1997).
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as her father. Ruby testified, though, that a subsequent paternity test revealed Fredrick was
not the child’s biological father. Following the results of the paternity test, Fredrick and
Dalphanie ended their engagement. Further testimony in the record implied that a chancery
court subsequently entered a judgment against Patrick and that the judgment allegedly
ordered Patrick to pay child support for Dalphanie’s daughter. However, because the
judgment was not made part of the record, this Court should not speculate as to its contents.
¶33. Interestingly, during the hearing on Ruby’s petition for grandparent visitation, the
chancellor questioned the parties as to the identity of the child’s biological father. Patrick
and Dalphanie’s attorney informed the chancellor that no paternity test had been conducted
to determine whether Patrick was, in fact, the child’s biological father. The couple’s attorney
also informed the chancellor of the apparent child-support order against Patrick. However,
the attorney stated that she brought no copy of the order with her to chancery court to admit
into evidence.
¶34. The chancellor asked Patrick and Dalphanie’s attorney to try to obtain a copy of the
child-support order for him to review to determine whether there had been an adjudication
regarding Patrick’s paternity or whether Patrick was paying support for some other reason.
When the hearing resumed, the chancellor reviewed “the court file from [DHS] as it relate[d]
to [Patrick].” As previously acknowledged, however, the record on appeal fails to contain
documentation of either a child-support order or the contents of the DHS file. Furthermore,
even though the chancellor reviewed these documents during the hearing, he failed to make
any on-the-record findings regarding the contents of the DHS file.
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¶35. After the chancellor reviewed the contents of the DHS file, the parties stated, on the
record, that they were not challenging the child-support order. Although Ruby testified
during the hearing that she did not know whether Patrick was actually the child’s father, her
attorney also agreed that Ruby was not in chancery court to challenge Patrick’s paternity. In
addition, Patrick and Dalphanie both testified that Patrick was the child’s biological father.
The couple made this assertion even though the parties claimed no paternity test had been
performed, the parties failed to admit any evidence to support the assertion, and the child’s
birth certificate failed to identify Patrick as the father.6
¶36. Although neither party raised the issue of jurisdiction due to a failure to join all
necessary parties, “[j]urisdiction is a question of law, which [the appellate court] reviews de
novo.” Issaquena Warren Counties Land Co. v. Warren Cnty., 996 So. 2d 747, 749 (¶5)
(Miss. 2008) (citations omitted). “[A]ll courts must be constantly aware of questions of their
jurisdiction to proceed and must be prepared to decide a question pertaining to jurisdiction
at any time, even if the court must raise the issue on its own motion.” Dunaway v. Dunaway,
749 So. 2d 1112, 1120 (¶25) (Miss. Ct. App. 1999) (citation omitted).
¶37. In establishing the parties who must be joined in a proceeding for grandparent-
visitation rights, section 93-16-5 states:
All persons required to be made parties in child custody proceedings or
proceedings for the termination of parental rights shall be made parties to any
proceeding in which a grandparent of a minor child or children seeks to
6
See Miss. Code Ann. § 93-17-1 (Rev. 2004) (establishing that, upon the petition of
any person, the chancery court possesses jurisdiction “to alter the names of such person, to
make legitimate any living offspring of the petitioner not born in wedlock, and to decree said
offspring to be an heir of the petitioner”).
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obtain visitation rights with such minor child or children; and the court may,
in its discretion, if it finds that such visitation rights would be in the best
interest of the child, grant to a grandparent reasonable visitation rights with the
child. Whenever visitation rights are granted to a grandparent, the court may
issue such orders as shall be necessary to enforce such rights and may modify
or terminate such visitation rights for cause at any time.
(Emphasis added).
¶38. As our precedent establishes, in addition to a minor child’s mother, the child’s legal
father and putative father constitute necessary parties to a custody proceeding. Bolivar, 85
So. 3d at 337 (¶7). “[S]ection 93-16-5’s mandate [is] clear and unambiguous that the natural
parents whose parental rights have not been terminated must be parties to a
grandparent-visitation proceeding.” Id. at (¶8). Furthermore, “the requirement for the
joinder of necessary parties in section 93-16-5 is jurisdictional.” Id. (citations omitted). “As
the supreme court [has] similarly found . . . , we find that to give validity and credence to the
[chancellor’s] judgment without joinder of necessary parties would undermine the legislative
mandate in section 93-16-5.” Id. (citation omitted).
¶39. Pursuant to Mississippi statutory law regarding the determination of a petition for
grandparent visitation,7 the record reflects that jurisdiction over the instant proceeding failed
to vest in the chancery court. The chancellor lacked jurisdiction to award grandparent
visitation without joinder of and service of process to the child’s legal father and putative
father, who constitute necessary parties to the proceeding. See Bolivar, 85 So. 3d at 337
(¶¶7-8). I would therefore vacate the chancellor’s judgment and remand the case for further
proceedings consistent with this opinion.
7
See Miss. Code Ann. § 93-16-3; Miss. Code Ann. § 93-16-5.
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¶40. In writing to remand this case, I acknowledge that the right to grandparent visitation
is purely statutory and may only be awarded where the proper criteria have been met. See
Lott v. Alexander, 134 So. 3d 369, 371 (¶6) (Miss. Ct. App. 2014); Aydelott v. Quartaro, 124
So. 3d 97, 100 (¶9) (Miss. Ct. App. 2013). Even if the proper and necessary parties are
joined to this action and are notified by service of process, then “[s]ufficient findings are
[still] required under the applicable statutory framework and factors” to support an award of
grandparent visitation. Bolivar, 85 So. 3d at 338 (¶10). Therefore, if the chancellor found
upon remand that the requirements set forth in section 93-16-3(2)8 have been met, he must
still consider the factors established in Martin to determine “both whether to award
grandparent visitation and then, if it is awarded, its extent.” Arrington v. Thrash, 122 So. 3d
144, 149 (¶19) (Miss. Ct. App. 2013). Accordingly, after joinder of, and service of process
to, all necessary parties, the chancellor should fully discuss and apply section 93-16-3’s
framework and the Martin factors to determine whether grandparent visitation is appropriate
in this case.
¶41. Because I find the record reflects that not all the necessary parties to this action were
served notice and joined, I find the chancellor lacked jurisdiction to award grandparent
visitation. I therefore respectfully dissent from the majority’s opinion because I would vacate
the chancellor’s judgment and remand this case to chancery court for further proceedings.
LEE, C.J., FAIR AND JAMES, JJ., JOIN THIS OPINION.
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Section 93-16-3(2) provides that a chancellor may award grandparent visitation
where the grandparent establishes: (1) a viable relationship with the grandchild; (2) that
visitation with the grandchild has been unreasonably denied by the grandchild’s parent; and
(3) that visitation is in the grandchild’s best interest.
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