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Posted on Wednesday, April 16th, 2014 by Peter Klenk

It was not long ago when the definition of a family, and to whom a court would allow visitation to minor children, was simple; biological mother and biological father. Then times changed.

If you are reading this article, it is possible that by the time your issue appears before a magistrate or judge the rules in your county will have changed from what they are today. The rules, like the definition of family, are changing.

Reading the facts and the decision in Arrington v. Thrash , from the Mississippi Court of Appeals allow you to see the law change before your eyes. The court ruled that the facts and circumstances in that case justified an award of grandparent visitation comparable to that which would have been given to a noncustodial parent. The court reasoned that this decision was in the best interest of the minor child.

If your involvement in a case is over guardianship, this case also shows the factors that a court might examine in determining whom should be the principal guardian of a minor, or for an incapacitated person. It is reasonable to argue that under the right circumstances, it might be in the best interest of the child for grandparents to have principal custody over a child, even if the biological parent is alive, but less able to provide for the child.

Summary:

On September 3, 2005, 19-year old Jonathan was cleaning up Hurricane Katrina debris at his parents’ home with a Bobcat when it turned over, killing him. A short time later Allison contacted the parents, informing them that Jonathan was the father of Payton, born in 2005. She had not told Jonathan of the child. A DNA test confirmed the paternity, and a relationship began between the parents, Allison and Payton.

Beginning when Payton was four months old the parents regularly kept Payton in their home on weekends and holidays, sometimes for a week or more at a time. Visitation included holidays and family trips and eventually the parents had Payton at their house for nearly one year. Over the 4.5 years when the parents had custodial visitation, Allison gave birth to two other illegitimate children. The parents took Payton, Allison and the two younger siblings on occasional vacation trips and contributed financial to Payton’s support and aided in obtaining Jonathan’s Social Security benefits for Payton. Payton had her own room at the parent’s house and had birthday and holiday parties with them each year.

In 2010 the parents contacted the Mississippi Deterrent of Human Services concerning the children’s living conditions. Allison cut off their visitation rights.

The parents filed an action for grandparent visitation. The chancellor determined that the parents relationship with Payton was a viable one and found the grandparents were entitle to visitation because their child was deceased and because they had a close relationship with the child.

Later, Allison appealed the decision, but it was upheld with the court finding that it be in Payton’s best interest that thee grandparents have visitation rights. Factors sited were the time the grandparents had spent caring for Payton since she was 4 months old, their extensive presence in her life, the viable relationship they had established with her and their statement that they understood that they were not to undermine Allison in raising Payton.

Peter Klenk, Esq. LL.M.

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