Bolivar v. Waltman
| Docket Number: | 2010-CA-01982-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-03-2012 Opinion Author: Maxwell, J. Holding: Vacated and remanded |
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| Additional Case Information: |
Topic: Grandparent visitation - Joinder of necessary parties - Section 93-16-5 - Section 93-15-107(1) - Section 93-16-3 - Findings by judge Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts, Carlton, Russell and Fair, JJ. Concur in Part, Concur in Result 1: Irving, P.J., concurs in part and in the result 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: 09-30-2010 Appealed from: Jones County Chancery Court Judge: Franklin C. McKenzie, Jr. Disposition: VISITATION AWARDED TO PATERNAL GRANDMOTHER Case Number: 2008-0420 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Stanley R. Bolivar and Cindy Bolivar |
DEBRA LYNN ALLEN |
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| Appellee: | Joyce Waltman | BILLIE J. GRAHAM | ||
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 - Joinder of necessary parties - Section 93-16-5 - Section 93-15-107(1) - Section 93-16-3 - Findings by judge |
| Summary of the Facts: | This dispute concerns the Bolivars’ and Waltman’s two grandchildren, who were approximately six and four years old at the time of the hearing in this case. The children’s parents were divorced in August 2006. Because both parents have a prolonged history of substance abuse, in May 2008 the chancellor appointed the Bolivars (the maternal grandparents) the children’s co-guardians. Following their appointment, the Bolivars allowed Waltman (the paternal grandmother) visitation with the children every other weekend. Waltman’s arrangement was identical to the visitation granted to the children’s father (Waltman’s son) under the judgment of divorce, which remained the controlling custody order. The Bolivars eventually began limiting Waltman’s visitation from every other weekend to every other Saturday from 8:00 a.m. to 5:00 p.m. Dissatisfied with this new arrangement, Waltman filed a petition for grandparent visitation. Following a hearing, the chancellor granted Waltman’s petition for grandparent visitation. He ordered Waltman’s visitation be the equivalent of father’s visitation under the judgment of divorce. The Bolivars appeal. |
| Summary of Opinion Analysis: | Issue 1: Joinder of necessary parties Section 93-16-5 establishes the necessary parties to a proceeding for grandparent visitation. Section 93-15-107(1) lists as necessary parties in an action to terminate parental rights: “the mother of the child, the legal father of the child, and the putative father of the child, when known[.]” These same parties are also indispensable in a custody determination. Section 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. And the requirement for the joinder of necessary parties in section 93-16-5 is jurisdictional. Because the trial court lacked jurisdiction to award grandparent visitation without joinder of the parents, the case is vacated and remanded. Issue 2: Grandparent visitation Grandparent visitation in Mississippi is governed by section 93-16-3. Once the statutory criteria are established, the chancellor must apply the Martin factors to determine appropriate visitation. Making findings of fact under the Martin factors is an integral part of a determination of what is in the best interest of a child. There is additional general guidance regarding the amount of visitation that should be awarded. And in cases where a chancellor finds a grandparent should be awarded equivalent visitation to that of a parent, those findings must be fully discussed on the record. Both the grandparent-visitation statute and the Martin factors apply to the present situation where a grandparent is seeking visitation rights from the children’s legal guardians. Therefore, on remand, the chancellor should fully discuss his findings concerning the grandparent visitation statute and Martin factors. |
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