Senate Bill 2197

AN ACT TO CREATE NEW SECTION 93-5-35, MISSISSIPPI CODE OF 1972, TO PROVIDE A MEANS FOR A COURT TO GRANT THIRD-PARTY VISITATION TO A PERSON STANDING IN LOCO PARENTIS TO A CHILD OR TO ANOTHER PERSON WITH A SIGNIFICANT RELATIONSHIP WITH THE CHILD UNDER CERTAIN LIMITED CIRCUMSTANCES; AND FOR RELATED PURPOSES.

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

SECTION 1. The following shall be codified as Section 93-5-35, Mississippi Code of 1972:

93-5-35. Custody award to person standing in loco parentis or having other significant relationship to child. (1) A person other than a legal parent may petition the court having jurisdiction for visitation with a child. The court may grant visitation rights during the child's minority on a finding that the visitation is in the child's best interests and that any of the following is true:

(a) One (1) of the legal parents is deceased or has been missing at least three (3) months. A parent is considered to be missing if the parent's location has not been determined and the parent has been reported as missing to a law enforcement agency.

(b) The child was born out of wedlock and the child's legal parents are not married to each other at the time the petition is filed.

(c) For in loco parentis visitation, a proceeding for dissolution of marriage or for legal separation of the legal parents is pending at the time the petition is filed.

(d) The court determines that an ongoing personal parent-child relationship exists. "Parent-child relationship" means that the person resided in the same household as the child or otherwise made available to the child food, clothing, shelter and incidental necessaries and provided the child with necessary care, education, discipline, interaction, or companionship, fulfilling the child's psychological needs for a parent as well as the child's physical needs, but does not include the relationship between a child and a person who is the nonrelated foster parent of the child unless the relationship continued over a period exceeding eighteen (18) months.

(2) A petition filed under this section must be verified or supported by affidavit and must include detailed facts supporting the petitioner's claim. The petitioner must also provide notice of this proceeding, including a copy of the petition and any affidavits or other attachments, and serve the notice pursuant to the Mississippi Rules of Civil Procedure to all of the following parties who exist:

(a) The child's legal parents.

(b) A third party who possesses legal decision-making authority over the child or visitation rights.

(d) A person or agency possessing physical custody of the child or claiming legal decision-making authority or visitation rights concerning the child.

(e) Any other person or agency that has previously appeared in the action.

(3) In deciding whether to grant visitation to a third party, the court shall give special weight to the legal parents' opinion of what serves their child's best interests and consider all relevant factors including:

(a) The historical relationship, if any, between the child and the person seeking visitation.

(b) The motivation of the requesting party seeking visitation.

(d) The quantity of visitation time requested and the potential adverse impact that visitation will have on the child's customary activities.

(e) If one or both of the child's parents are deceased, the benefit in maintaining an extended family relationship.

(4) This section will not apply to a petition for visitation if the chapter on grandparents' visitation rights found at Title 93, Chapter 16, Mississippi Code of 1972, applies.

(5) Unless the child is adopted by the spouse of a natural parent after the natural parent remarries, all visitation rights granted under this section automatically terminate if the child is adopted or placed for adoption. If the child is removed from an adoptive placement, the court may reinstate the visitation rights.

(6) The court may not grant visitation rights under this section to a person who has been convicted of the intentional homicide of a parent of the child unless:

(a) The conviction has been reversed, set aside or vacated; or

(b) The court determines by clear and convincing evidence that the visitation would be in the best interests of the child.

(7) In any proceeding under this section, there is a presumption that the legal parent acts in the best interest of the child. In deciding whether the presumption has been rebutted and whether to award visitation or contact rights over the objection of the legal parent, the court may consider factors, including, but not limited to, the following:

(a) The petitioner is or recently has been the child's primary caretaker;

(b) Circumstances detrimental to the child exist if relief is denied;

(d) Granting relief would not substantially interfere with the custodial relationship; or

(e) The legal parent has unreasonably denied or limited or threatened to deny or limit contact between the child and the petitioner.

SECTION 2. This act shall take effect and be in force from and after July 1, 2014.