Parental Rights in Mississippi

Mississippi State Law and Parental Rights

At Risk

Mississippi does not have a state statute that explicitly defines and protects parental rights as fundamental rights.

Legislative efforts 2017: MS HC2 (Rep. Moore) was an attempt to protect parental rights in the Mississippi Constitution. It was sent to the Constitution Committee, but was not passed out.

Legislative efforts 2014: SB 2199 (Sen. Fillingane) was an effort to preserve parental rights in Mississippi statutory law. It was referred to the Senate Judiciary Committee (Division A) on Jan. 10, 2014, but was not passed out.

Legislative efforts 2013: HB 496 (Rep. Chris Brown), SB 2650 (Sen. Fillingane), and HC 90 (Reps. Brown & Formby) were all efforts to protect parental rights at the state level. HB 496 passed committee but was halted before the House on a technicality. SB 2650 stalled in the Senate Judiciary committee. HC 90 passed the House by a vote of 101-11, but stalled in the Senate Rules committee.

Miss. Code Ann. § 93-16-3 is Mississippi's grandparent visitation statute.

  • It applies only to grandparents.
  • It applies only in cases of death or termination of parental rights.
  • It applies only when the grandparent has "established a viable relationship with the child," the parent has "unreasonably denied the grandparent visitation rights with the child," and visitation would be in the child's best interests.

Miss. Code Ann. § 37-13-173 requires parental notification and allows parental opt-out for sex education in the public schools. See also Miss. Code Ann. § 41-79-5(10).

Miss. Code Ann. § 37-23-137(2): "If the parent of a child with a disability refuses consent for the evaluation, the local educational agency may continue to pursue an evaluation by utilizing the due process hearing procedures under IDEA, except to the extent these are not in conflict with Mississippi law relating to parental consent."

Miss. Code Ann. § 41-41-53 requires parental consent before a minor can get an abortion, subject to judicial bypass.

Miss. Code Ann. § 41-42-7 allows doctors to give contraceptive supplies and information to unmarried minors without parental consent when the minor is referred to the doctor by "another physician, a clergyman, a family planning clinic, a school or institution of higher learning, or any agency or instrumentality of this state or any subdivision thereof."

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Mississippi Courts and Parental Rights

"Strict Scrutiny" Applied to Parental Rights

However, this precedent is subject to change.

Smith v. Wilson, 90 So. 3d 51 (Miss.2012):

  • "Mississippi's grandparent-visitation statute is narrow, allowing grandparents (not any person) to seek visitation only under certain circumstances." In addition, the "factors set forth in Martin [v. Coop] specifically prohibit a Chancellor from ordering visitation which would interfere with a parent's right to rear his or her children." Therefore, Mississippi's grandparent-visitation statute is distinguishable from the Washington statute truck down in Troxel and is not unconstitutional.
  • "But unfitness is not required to award grandparent visitation." Id. at 60.

D.M. v. D.R., 62 So. 3d 920 (Miss.2011):

  • Granville held that "a state statute regulating visitation rights must meet strict scrutiny before interfering with a parent's right to control a child's upbringing."
  • In all cases involving child custody, including modification, the polestar consideration is the best interest and welfare of the child.
  • Generally, it is presumed that the best interests of the child are served by remaining in the custody of the natural parent.
  • Biological mother was not entitled to the natural parent presumption, in child custody modification proceeding in which paternal grandparents had been awarded custody of child; mother forfeited her right to the natural parent presumption when she voluntarily relinquished custody of child and allowed maternal grandparents to adopt child, and the deaths of maternal grandparents did not “reinstate” mother's parental rights to child.

Woodell v. Parker, 860 So. 2d 781 (Miss.2003):

  • Mississippi's grandparent visitation statute is constitutional.
  • Adoptive parents are not entitled to the Troxel presumption.

Pruitt v. Payne 14 So. 3d 806 (2009Miss.App):

  • There is a general presumption that a parent who is fit will act in the best interest of his or her child; a court must accord some special weight to a fit parent's determination of a child's best interests.
  • Parents with custody have a paramount right, protected by the Due Process Clause, to control the environment, physical, social, and emotional situations to which their children are exposed.
  • Generally, a court will not grant visitation rights to grandparents or third parties over the objection of a fit custodial parent.
  • In Mississippi, a finding of unfitness is necessary to award custody to a third party over a natural parent.