Conerly v. Davis
| Docket Number: | 2009-CA-00534-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-02-2010 Opinion Author: Lee, P.J. Holding: Vacated and remanded. |
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| Additional Case Information: |
Topic: Grandparent visitation - Viable relationship - Section 93-16-3 - Martin factors Judge(s) Concurring: King, C.J., Myers, P.J., Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Dissenting Author : Irving, J., dissents without separate written opinion. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 03-06-2009 Appealed from: Amite County Chancery Court Judge: Debbra K. Halford Disposition: GRANTED GRANDPARENT’S VISITATION RIGHTS TO PATERNAL GRANDMOTHER AND AWARDED HER $3,887.50 IN ATTORNEY’S FEES Case Number: 2006-0091 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Rickey Len Conerly and Linda R. Conerly |
WAYNE SMITH |
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| Appellee: | Nan B. Davis | RONALD L. WHITTINGTON | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Grandparent visitation - Viable relationship - Section 93-16-3 - Martin factors |
| Summary of the Facts: | Nan Davis is the paternal grandmother to Mason Conerly. Mason is the son of Charles Davis and Sherry Lynn Conerly. Sherry’s parents, Rickey Len Conerly and Linda R. Conerly, adopted Mason in April 1999. Charles’s and Sherry’s parental rights were terminated at that time. Although Sherry’s parental rights were terminated, Mason spends approximately four to five nights a week at her house. In 2006, Davis filed suit in chancery court seeking grandparent’s visitation rights. The chancellor granted Davis’s request for grandparent’s visitation. The chancellor granted Davis at least three visitation periods of five hours minimum per visit during the first sixty days. The Conerlys appeal. |
| Summary of Opinion Analysis: | Issue 1: Viable relationship The Conerlys argue that the chancellor erred in not determining whether a viable relationship existed between Davis and Mason as required by section 93-16-3(2) and (3). According to section 93-16-3(1), if a parent of a minor child has his or her parental rights terminated, either parent of the minor child’s parents may petition the court for visitation. However, a chancellor need only address section 93-16-3(2) and (3) if 93-16-3(1) does not apply. In this case, Davis’s situation is addressed by 93-16-3(1) because her son’s parental rights were terminated. The chancellor was not required to determine whether Davis and Mason had a viable relationship. Issue 2: Martin factors The Conerlys argue that the chancellor failed to specifically address the factors enumerated in Martin. In Martin, the Mississippi Supreme Court listed ten factors that should be considered in determining grandparent visitation. As always, the best interest of the child is the paramount consideration when determining visitation. The Martin factors are to be applied and discussed in every case in which grandparent visitation is an issue. In this case, the chancellor did not mention the Martin factors or make any on-the record finding supporting the visitation award. From language appearing in the record, it seems the chancellor believed Davis was statutorily entitled to be awarded visitation with Mason. However, the grandparent-visitation statutes simply give a grandparent such as Davis standing to file a request seeking visitation rights. The chancellor’s judgment is remanded for an on-the-record consideration of the Martin factors. |
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