OF JUDGMENT: 05/16/2013
COUNTY CHANCERY COURT, HON. JANACE H. GOREE.
ATTORNEYS FOR APPELLANTS: GEORGE S. WHITTEN, JR. TOM P.
ATTORNEYS FOR APPELLEES: JAMES H. POWELL, III SABRINA D.
COURT ATTORNEYS: GEORGE S. WHITTEN, JR. TOM P. CALHOUN, III
JAMES H. POWELL, III.
Milton and Geneva Martin sought grandparent visitation with
their two grandsons after they were denied visitation by
Kimberly and Brandon Smith, the children's biological
mother and adoptive father. Marty Martin, the children's
father and the Martins' son, is deceased. The Chancery
Court of Yazoo County granted grandparent visitation to the
Martins, the Smiths appealed, and the case was assigned to
the Mississippi Court of Appeals, which affirmed. We granted
the Smiths' petition for a writ of certiorari.
We affirm the judgment of the Mississippi Court of Appeals
and the judgment of the Chancery Court of Yazoo County.
AND PROCEDURAL HISTORY
The following facts are taken, verbatim, from the decision of
the Mississippi Court of Appeals:
Kimberly and Marty Martin married in 1996 and divorced in
2003. The couple had two minor children. The couple's
first son, Cliff,  was born in 2001. Their second son, Hank,
was born in 2004 after the entry of the divorce decree.
Kimberly received physical custody of the two children, and
Marty received visitation supervised by his parents, the
On February 8, 2008, Marty committed suicide. His body was
discovered at his home on the Martins' property while the
two children were present for their visitation with him.
Marty's mother, Geneva, testified that the children never
saw their father's body but viewed the emergency
personnel who responded to the situation. Following
Marty's death, Kimberly allowed the Martins to continue
visitation with the children as they had prior to Marty's
death. The Martins' visitation included weekend visits,
overnight visits, and a week of visitation around Christmas.
At one point, Kimberly was hospitalized after she suffered a
nervous breakdown. During this time, the Martins provided
full-time care for at least one of Kimberly's children
while Kimberly recovered.
On May 17, 2008, Kimberly married Brandon [Smith]. In 2010,
Brandon adopted Kimberly's children. Following an
incident on January 2, 2011, Kimberly and Brandon
discontinued the Martins' visitation with the two minor
children. Geneva and Kimberly both testified about the
incident on January 2, 2011. The women both testified that
the two children were visiting the Martins when Hank became
ill. Geneva and Kimberly arranged to meet so that Hank could
return home. Kimberly decided that Cliff should return home
at the same time.
Geneva testified that, upon learning that he had to go home
early, Cliff grew upset and began to cry. Geneva further
testified that, upon arriving at the exchange location, she
instructed the children to get inside Kimberly's car
while she spoke to Kimberly. Geneva told Kimberly that Cliff
had accused Brandon of the following: being mean to Cliff,
telling Cliff he was overweight and needed Jenny Craig, and
pulling Cliff's hair and arms until they hurt.
At this point in the story, the two women's accounts of
events differed. According to Kimberly, during the
conversation, Geneva would sob hysterically, compose herself,
and then continue sobbing. Kimberly testified that Cliff, who
witnessed the women's conversation from inside
Kimberly's car, jumped from Kimberly's car, ran to
Geneva's car, and locked himself inside. Kimberly further
testified that, as he ran toward Geneva's car, Cliff
yelled, "You were right, Grandmother. My life would be
better if I just lived with you and went to school at Carroll
Geneva, however, disputed Kimberly's version of events.
According to Geneva's testimony, she and Kimberly both
remained composed during the conversation. Geneva admitted
that, when Kimberly raised her voice at one point during the
conversation, Cliff exited Kimberly's car, hugged Geneva,
and then ran to Geneva's car. Geneva testified, though,
that Cliff never yelled anything as he ran to her car and
that he never locked himself inside her car.
On redirect, Kimberly testified that Cliff remained upset the
entire drive home after the events on January 2, 2011. Even
after arriving home, Kimberly stated that Cliff remained
inconsolable. During her redirect, Kimberly testified as
[Cliff] was hysterically telling me that I had lied to him,
that his grandmother had told him I had lied to him his whole
life; that I had divorced his daddy for no good reason, taken
him away from [Marty]; [that Marty] got sadder and sadder,
sicker and sicker until he died. That Brandon would never be
his daddy, Brandon didn't love him; that Grandmother said
[Brandon] would never love him because he wasn't
[Brandon's] real child, [the adoption] was just a piece
of paper; [Brandon] had no right to discipline him. He kept
on and on telling me that I had lied to him, I had lied to
him his whole life about this divorce. He told Brandon his
grandmother said she would hire an attorney and sue us to
have his name changed back to Martin.
Because Cliff remained inconsolable and refused to believe
anything they told him, the Smiths asked other family members
to explain to Cliff the kind of man his father, Marty, had
been and to explain why Kimberly had divorced Marty. The
Smiths testified that they were reluctant to take this course
of action but believed it was the only way to help Cliff calm
down. During a proffer, Kimberly testified that she, Brandon,
her two older sons, her mother, and her aunt all spoke to
Cliff. The family members explained to Cliff that Marty had
experienced an ongoing drug problem; Marty had beaten
Kimberly; and Kimberly had divorced Marty because she was
afraid for her safety and Cliff's safety. During her
direct examination, Kimberly testified that Cliff eventually
calmed down after speaking to the other family members.
However, because she and Brandon remained concerned, they
made an appointment for a psychologist to evaluate Cliff and
Kimberly further testified that she ended the Martins'
visitation with the children due in part to the events on
January 2, 2011. Kimberly testified that she and Brandon also
ended the visitation because they had observed a change in
the children's behavior following their visits with the
Martins. According to Kimberly, the children acted more
aggressively and disrespectfully after visiting the Martins.
Both Kimberly and Brandon testified that Cliff even attempted
to shoot Brandon with a BB gun in July 2010. Due to the
cumulative effect of these incidents, the Smiths decided it
was in the children's best interests to deny the Martins
On August 3, 2011, the Martins filed a petition for
grandparent visitation pursuant to Mississippi Code Annotated
section 93-16-3(2) (Rev. 2013). On August 9, 2011, the
Martins filed a motion for temporary visitation. Following a
hearing on the Martins' motion for temporary visitation,
the chancellor entered an order granting temporary
visitation. The chancellor's order granted the Martins
telephone visitation up to two times a week between 5:30 p.m.
and 9 p.m. In addition, the chancellor granted the Martins
physical visitation with the children for five hours on
December 28, 2011, which was to be supervised by a mutual
friend of the parties.
On May 16, 2013, following a two-day hearing, the chancellor
entered an order finding that the Martins were entitled to
visitation under Mississippi Code Annotated [S]ection
93-16-3(1) (Rev. 2013). Because the Martins filed their
petition under [S]ection 93-16-3(2) [(Rev. 2013)], however,
the chancellor also discussed whether the Martins satisfied
the criteria for grandparent visitation under that subsection
of the statute. The chancellor determined that an award of
grandparent visitation was also appropriate under [S]ection
93-16-3(2) since the Martins established the following: (1) a
viable relationship existed with the children; (2) the Smiths
unreasonably denied visitation; and (3) visitation was in the
children's best interests. See Miss. Code Ann.
§ 93-16-3(2). Although the Smiths testified that they
denied visitation for behavior-related reasons, the
chancellor found no causal connection between the
children's behavior and their visits with the Martins.
After determining that the Martins were entitled to
visitation under both section 93-16-3(1) and section
93-16-3(2), the chancellor considered the
Martin factors. After considering the factors,
the chancellor found: (1) limited visitation would not be too
disruptive to the children's lives; (2) the Martins'
activities posed no barrier to their ability to provide a
suitable home with sufficient supervision when the children
visited; (3) the children were ages eleven and nine at the
time of the hearing; (4) the Martins, both in their sixties,
appeared to be in good health at the time of the hearing even
though Geneva had suffered a nervous breakdown after
Marty's suicide and Milton had experienced stress due to
his son's death and Geneva's breakdown; (5) strong
emotional ties existed between the Martins and the children;
(6) no evidence was offered to prove that the Martins were
morally unfit to have a relationship with the children; (7)
the Martins' home in Carroll County was not too far from
the Smiths' home in Yazoo County; (8) although the Smiths
alleged that the Martins undermined their general discipline
of the children, they failed to offer any evidence to
substantiate their claims; (9) the Martins' employment
responsibilities would not interfere with visitation; and
(10) the Martins testified that they were willing to accept
that rearing the children was the Smiths' responsibility,
and they testified that they would do nothing to interfere
The chancellor concluded that it was in the children's
best interests to award grandparent-visitation rights to the
Martins. The chancellor therefore granted the Martins
visitation with the children on the third weekend of every
month. The chancellor also ordered the Smiths, the Martins,
and the children to attend family counseling to facilitate a
smooth visitation experience between the Martins and the
children. In addition, the chancellor ordered that the family
counseling would continue until the counselor determined the
need for counseling no longer existed.
Following the chancellor's order, the Smiths filed an
unsuccessful motion for a new trial. The Smiths asserted in
their motion that the chancellor had erroneously excluded
evidence and conducted the hearing in a manner pervasively
prejudicial to them. Aggrieved by the chancellor's grant