MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary A

By: Representative Green (34th)

AN ACT TO ENHANCE AND STRENGTHEN THE PARENTAL RIGHTS OF NATURAL PARENTS OF A CHILD IN CASES WHERE THE PARENTS ARE UNMARRIED AT THE TIME OF THE CHILD'S BIRTH; TO CREATE A CIVIL CAUSE OF ACTION FOR THE TORT OF "INTENTIONAL INTERFERENCE WITH PARENTAL RIGHTS"; TO CREATE THE FELONY OFFENSE OF INTERFERENCE WITH PARENTAL RIGHTS; TO PROVIDE THAT WHEN A CHILD IS ADOPTED WITHOUT THE CONSENT OF BOTH OF THE NATURAL PARENTS, THE NONCONSENTING NATURAL PARENT MAY BE AWARDED VISITATION RIGHTS WITH THAT CHILD; TO AMEND SECTION 93-5-24, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT CUSTODY MAY BE AWARDED TO A NATURAL PARENT DESIRING CUSTODY; TO AMEND SECTION 93-13-3, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE GUARDIANSHIP OF A MINOR MAY BE AWARDED TO A NATURAL PARENT; TO AMEND SECTION 93-16-3, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT, IN CERTAIN LIMITED CIRCUMSTANCES, THE NATURAL GRANDPARENTS OF A CHILD MAY BE AWARDED VISITATION RIGHTS WITH THE CHILD REGARDLESS OF THE ADOPTION OF THE CHILD; TO AMEND SECTION 93-17-5, MISSISSIPPI CODE OF 1972, TO REQUIRE THAT THE CONSENT OF THE NATURAL FATHER IS REQUIRED BEFORE THE ADOPTION OF A CHILD; TO AMEND SECTION 93-17-7, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT NO INFANT SHALL BE ADOPTED TO ANY PERSON IF A NATURAL PARENT OBJECTS; TO AMEND SECTION 93-23-3, MISSISSIPPI CODE OF 1972, TO INCLUDE NATURAL PARENTS WHO WERE UNMARRIED AT THE TIME OF THE CHILD'S BIRTH IN THE DEFINITION OF PARENT, FOR PURPOSES OF THE UNIFORM CHILD CUSTODY JURISDICTION ACT; TO AMEND SECTION 93-23-5, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT CHILD CUSTODY MAY BE AWARDED TO A NATURAL PARENT IF THE CHILD HAS BEEN ADOPTED WITH THE CONSENT OF BOTH OF THE NATURAL PARENTS OF THE CHILD; TO AMEND SECTION 93-23-45, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT THE POLICIES AND APPLICATION OF THE UNIFORM CHILD CUSTODY JURISDICTION ACT EXTEND TO FOREIGN COUNTRIES; TO AMEND SECTIONS 93-16-5, 93-16-7, 93-23-27 AND 97-3-51, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. It is the intent of the Legislature in enacting this law to recognize that:

(a) The parental rights of natural parents should be recognized and protected;

(b) Even though natural parents of a child may be unmarried, if the natural father or mother has demonstrated a willingness to accept his or her parental responsibilities to the child, that natural parent has rights to the custody of the child which cannot be terminated absent a showing of his or her unfitness as a parent in a proceeding which affords due process;

(c) Even though natural parents of a child may be unmarried, each parent has a protected interest in the opportunity to develop and enjoy an association and relationship with his or her child.

SECTION 2. (1) One who, with knowledge that a natural parent of a child does not consent or with willful disregard or reckless indifference to the rights of a natural parent who does not consent, abducts or adopts the child or allows the child to be adopted, or otherwise takes any action that results in the natural parent being denied custody or visitation rights to the child, is subject to liability to the natural parent. This liability shall exist regardless of whether the natural parent is seeking damages from the other natural parent of the child, or whether the natural parents are or ever were married or whether the natural parents were unmarried at the time of the child's birth.

(2) The natural parent can recover for:

(a) The loss of society of his or her child;

(b) His or her emotional distress resulting from the child's abduction or adoption;

(c) Any reasonable expenses incurred by him or her in regaining custody or visitation rights to the child;

(d) Any other reasonable compensatory damages allowed by the court; and

(e) Punitive damages in an amount sufficient to keep such wrongful conduct from being repeated.

(3) Third parties who can be proven to have conspired, aided or abetted in the abduction or adoption can be found liable for damages jointly and severally with the parties who have abducted or adopted the child or who have allowed the child to be adopted.

(4) Actions for recovery under this section may be brought in any court of competent jurisdiction in this state, in the county in which the petitioner resides or in Hinds County.

SECTION 3. (1) A person commits the offense of interference with parental rights if a person:

(a) Intentionally or knowingly abducts or adopts a child or allows the child to be adopted, without the consent of both of the natural parents of the child; and

(b) Removes the child from the state, or in the case of unmarried natural parents, if the natural mother gives birth to the child in another state and fails to return the child to the state of residence of the natural father and afford him the opportunity to take custody of his child.

(2) For purposes of criminal prosecution under this section, no court order of child custody shall be necessary.

(3) Any person convicted of a violation of subsection (1) of this section shall be guilty of a felony and may be punished by a fine of not less than Five Thousand Dollars ($5,000.00) and not more than Ten Thousand Dollars ($10,000.00), or by imprisonment in the State Penitentiary for not less than one (1) year and not more than ten (10) years, or by both such fine and imprisonment.

(4) The provisions of this section shall not be construed to repeal, modify or amend any other criminal statute of this state.

SECTION 4. (1) 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 natural parents of such minor child as provided in this section.

(2) Any natural parent who did not consent to the legal adoption of his or her child, and the child is nonetheless adopted in any state of this country or in any foreign country, may petition the chancery court in the county in which he or she resides or in Hinds County, and seek visitation rights with such child.

(3) The court may grant visitation rights to the natural parent if the court finds:

(a) That the natural parents of the child were unmarried at the time of the child's birth; and

(b) That one (1) of the natural parents of the child allowed the child to be adopted without the consent of the other natural parent, and the nonconsenting natural parent is petitioning the court.

(4) For purposes of this section, there is a presumption that visitation with the natural parents is in the best interest of the child. Further, visitation rights may be granted to the natural parents of the child notwithstanding the legal adoption of the child which may have occurred in another state or foreign country.

SECTION 5. Section 93-5-24, Mississippi Code of 1972, is amended as follows:

93-5-24. (1) Custody may be awarded as follows according to the best interests of the child:

(a) Physical and legal custody to both parents jointly pursuant to subsections (2) through (7).

(b) Physical custody to both parents jointly pursuant to subsections (2) through (7) and legal custody to either parent.

(c) Legal custody to both parents jointly pursuant to subsections (2) through (7) and physical custody to either parent.

(d) Physical and legal custody to either parent.

(e) Upon a finding by the court that both of the parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child the court may award physical and legal custody to:

(i) The person in whose home the child has been living in a wholesome and stable environment; or

(ii) Physical and legal custody to any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.

In making an order for custody to either parent or to both parents jointly, the court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.

(2) Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.

(3) In other cases, joint custody may be awarded, in the discretion of the court, upon application of one (1) or both parents.

(4) There shall be a presumption that joint custody is in the best interests of a minor child where both parents have agreed to an award of joint custody.

(5) (a) For the purposes of this section, "joint custody" means joint physical and legal custody.

(b) For the purposes of this section, "physical custody" means those periods of time in which a child resides with or is under the care and supervision of one of the parents.

(c) For the purposes of this section, "joint physical custody" means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.

(d) For the purposes of this section, "legal custody" means the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child.

(e) For the purposes of this section, "joint legal custody" means that the parents or parties share the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.

An award of joint physical and legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and unless allocated, apportioned or decreed, the parents or parties shall confer with one another in the exercise of decision-making rights, responsibilities and authority.

(6) Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.

(7) Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including but not limited to medical, dental and school records, shall not be denied to a parent because the parent is not the child's custodial parent.

(8) In cases in which the natural parents of the child were unmarried at the time of the child's birth, and there is no divorce decree, custody may be awarded according to the best interests of the child. If either of the natural parents of the child desire custody of the child, there shall be a presumption that an award of custody to the natural parent is in the best interests of the child. An award of custody to a natural parent may be made notwithstanding that the other natural parent of the child wishes for the child to be adopted by persons who are not the natural parents of the child.

SECTION 6. Section 93-13-3, Mississippi Code of 1972, is amended as follows:

93-13-3. (1) In case the father and mother live apart the court may award the guardianship of a minor to either parent, and the state where the parent having the lawful custody resides, shall have jurisdiction to determine questions concerning the minor's guardianship: provided that the provisions of this section shall not in any manner impose upon the mother any greater liability than is now imposed by law to support, maintain and educate her children.

(2) In any case in which the natural father and natural mother of the minor were unmarried at the time of the minor's birth, the court may award the guardianship of a minor to either natural parent, and the state where either parent resides shall have jurisdiction to determine questions concerning the minor's guardianship.

SECTION 7. Section 93-16-3, Mississippi Code of 1972, is amended as follows:

93-16-3. (1) Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child's parents who was not awarded custody or whose parental rights have been terminated or who has died may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with such child.

(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:

(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and

(b) That visitation rights of the grandparent with the child would be in the best interests of the child.

(3) For purposes of subsection (3) of this section, the term "viable relationship" means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child or the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year.

(4) Any petition for visitation rights under subsection (2) of this section shall be filed in the county where an order of custody as to such child has previously been entered. If no such custody order has been entered, then the grandparents' petition shall be filed in the county where the child resides or may be found. The court shall on motion of the parent or parents direct the grandparents to pay reasonable attorney's fees to the parent or parents in advance and prior to any hearing, except in cases in which the court finds that no financial hardship will be imposed upon the parents. The court may also direct the grandparents to pay reasonable attorney's fees to the parent or parents of the child and court costs regardless of the outcome of the petition.

(5) Any grandparent who is not authorized to petition for visitation rights pursuant to subsections (1) or (2) of this section may petition the chancery court in which the grandparent resides or in Hinds County and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent if the court finds:

(a) That the grandparent of the child is the parent of the natural father or mother of the child;

(b) That the natural parents of the child were unmarried at the time of the child's birth and that one (1) of the natural parents of the child allowed the child to be adopted without the consent of the other natural parent;

(c) That visitation rights of the grandparent with the child would be in the best interests of the child.

For purposes of this subsection, visitation rights may be granted to the grandparents of the child notwithstanding the legal adoption of the child which may have occurred in another state or foreign country.

SECTION 8. Section 93-16-5, Mississippi Code of 1972, is amended as follows:

93-16-5. (3) All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights, or in the case of visitation under Section 93-16-3(5), the adoptive parents and natural parents of the child, 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 terminate such visitation rights for cause at any time.

SECTION 9. Section 93-16-7, Mississippi Code of 1972, is amended as follows:

93-16-7. This chapter shall not apply to the granting of visitation rights to the natural grandparents of any child who has been adopted by order or decree of any court unless: (a) one (1) of the legal parents of such child is also a natural parent of such child; or (b) one (1) of the legal parents of such child was related to the child by blood or marriage prior to the adoption; or (c) the child was adopted without the consent of both of the natural parents of the child. This chapter shall apply to persons who become grandparents of a child by virtue of adoption.

SECTION 10. Section 93-17-5, Mississippi Code of 1972, is amended as follows:

93-17-5. (1) There shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the petition, which consent shall be duly sworn to or acknowledged and executed only by the following persons, but not before three (3) days after the birth of said child: (a) the parents, including both natural parents of the child, or parent, if only one (1) parent, though either be under the age of twenty-one (21) years; or, (b) in the event both parents are dead, then any two (2) adult kin of the child within the third degree computed according to the civil law, provided that, if one (1) of such kin is in possession of the child, he or she shall join in the petition or be made a party to the suit; or, (3) the guardian ad litem of an abandoned child, upon petition showing that the names of the parents of such child are unknown after diligent search and inquiry by the petitioners.

(2) In addition to the above, there shall be made parties to any proceeding to adopt a child, either by process or by the filing of a consent to the adoption proposed in the petition, the following:

(a) Those persons having physical custody of such child, except persons having such child as foster parents as a result of placement with them by the Department of Human Services of the State of Mississippi.

(b) Any person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi.

(c) The agent of the county department of public welfare of the State of Mississippi that has placed a child in foster care, either by agreement or by court order.

Such consent may also be executed and filed by the duly authorized officer or representative of a home to whose care the child has been delivered. The child shall join the petition by its next friend.

(3) In the case of a child born out of wedlock, from and after July 1, 1997, the natural father shall * * * be deemed to be a parent for the purpose of this chapter; however, no reference shall be made to the illegitimacy of such child. Proof that a person is the natural father of the child may be made by evidence other than his being named the father on the birth certificate.

If such consent be not filed, then process shall be had upon the parties as provided by law for process in person or by publication, if they be nonresidents of the state or are not found therein, after diligent search and inquiry, or are unknown after diligent search and inquiry; provided that the court or chancellor in vacation may fix a date in termtime or in vacation to which process may be returnable and shall have power to proceed in termtime or vacation. In any event, if the child is more than fourteen (14) years of age, a consent to the adoption, sworn to or acknowledged by the child, shall also be required or personal service of process shall be had upon the child in the same manner and in the same effect as if it were an adult.

SECTION 11. Section 93-17-7, Mississippi Code of 1972, is amended as follows:

93-17-7. No infant shall be adopted to any person if either parent, including both natural parents who were unmarried at the time of the infant's birth after having been summoned, shall appear and object thereto before the making of a decree for adoption, unless it shall be made to appear to the court from evidence touching such matters that the parent so objecting had abandoned or deserted such infant or is mentally, or morally, or otherwise unfit to rear and train it, including, but not limited to, being within any of the grounds requiring termination of parental rights as set forth in subsections (2) and (3)(a), (b), (d) or (e) of Section 93-15-103 in either of which cases the adoption may be decreed notwithstanding the objection of such parent, first considering the welfare of the child, or children, sought to be adopted. Provided, however, the parents shall not be summoned in the adoption proceedings nor have the right to object thereto if the parental rights of the parent or parents have been terminated by the procedure set forth in Sections 93-15-101 through 93-15-111, and such termination shall be res judicata on the question of parental abandonment or unfitness in the adoption proceedings.

SECTION 12. Section 93-23-3, Mississippi Code of 1972, is amended as follows:

93-23-3. As used in this act:

(a) "Contestant" means a person, including a parent, or one (1) of the natural parents who were unmarried at the time of the child's birth, who claims a right to custody or visitation rights with respect to a child;

(b) "Court" means any court of this state which is competent to hear and decide child custody matters under the laws of this state;

(c) "Custody determination" means a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person;

(d) "Custody proceeding" includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings;

(e) "Decree" or "custody decree" means a custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree;

(f) "Home state" means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six (6) consecutive months, and in the case of a child less than six (6) months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period;

(g) "Initial decree" means the first custody decree concerning a particular child;

(h) "Modification decree" means a custody decree which modifies or replaces a prior decree, whether made by the court which rendered the prior decree or by another court;

(i) "Physical custody" means actual possession and control of a child;

(j) "Person acting as parent" means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody; and

(k) "State" means any state, territory or possession of the United States, the Commonwealth of Puerto Rico and the District of Columbia.

SECTION 13. Section 93-23-5, Mississippi Code of 1972, is amended as follows:

93-23-5. (1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(a) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or

(b) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one (1) contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training and personal relationships; or

(c) The child is physically present in this state and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or

(d) (i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (a), (b) or (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction; or

(e) The child has been adopted without the consent of both of the natural parents of the child, a nonconsenting natural parent resides in this state, and it is in the best interest of the child that a court of this state assume jurisdiction because of the significant connection to this state of one (1) or both of the natural parents.

(2) Except under paragraphs (c) and (d) of subsection (1) of this section, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.

(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

SECTION 14. Section 93-23-27, Mississippi Code of 1972, is amended as follows:

93-23-27. (1) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (a) (i) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this chapter or has declined to assume jurisdiction to modify the decree, and (ii) the court of this state has jurisdiction; or (b) the child who is the subject of the custody decree has been adopted without the consent of both of the natural parents of the child.

(2) If a court of this state is authorized under subsection (1) of this section and Section 93-23-15 to modify a custody decree of another state it shall give due consideration to the transcript of the record and other documents of all previous proceedings submitted to it in accordance with Section 93-23-43.

SECTION 15. Section 93-23-45, Mississippi Code of 1972, is amended as follows:

93-23-45. The general policies and application of this chapter extend to the international area, including foreign countries. The provisions of this chapter relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.

SECTION 16. Section 97-3-51, Mississippi Code of 1972, is amended as follows:

97-3-51. (1) For the purposes of this section, the following terms shall have the meaning herein ascribed unless the context otherwise clearly requires:

(a) "Child" means a person under the age of fourteen (14) years at the time a violation of this section is alleged to have occurred.

(b) "Court order" means an order, decree or judgment of any court of this state which is competent to decide child custody matters.

(2) It shall be unlawful for:

(a) Any noncustodial parent or relative with intent to violate a court order awarding custody of a child to another to remove the child from this state or to hold the child out of state after the entry of a court order; or

(b) Any person to knowingly take, entice, conceal, or detain the child from any other person who has a right to custody pursuant to a court order, judgment or decree.

(3) Any person convicted of a violation of subsection (2) of this section shall be guilty of a felony and may be punished by a fine of not more than Two Thousand Dollars ($2,000.00), or by imprisonment in the State Penitentiary for a term not to exceed three (3) years, or by both such fine and imprisonment.

(4) The provisions of this section shall not be construed to repeal, modify or amend any other criminal statute of this state.

SECTION 17. The provisions of Sections 3, 10, 11 and 16 of this act shall be prospective in nature and apply to actions occurring on or after July 1, 1997. The provisions of all other sections of this act shall be retroactive and apply to actions occurring either before or after July 1, 1997.

SECTION 18. This act shall take effect and be in force from and after July 1, 1997.