FAMILY VIOLENCE AND ITS IMPACT ON CUSTODY

November 22, 2010 § 3 Comments

MCA § 93-5-24(9)(a)(i) sets out some important language that you need to be aware of the next time you are involved in a child custody dispute.  It reads in part:

“In every proceeding where the custody of the child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence.  The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party.  The court shall make written findings to document how and why the presumption was or was not triggered.”   

A preponderance of the evidence is required to overcome the presumption.  In making a determination whether the presumption is rebutted, the court is required to consider all of the following:

  1. Whether it would be in the child’s best interest to award the perpetrator custody because of the other parent’s absence, mental illness, substance abuse or other circumstances that affect the best interest of the child;
  2. Whether the perpetrator has successfully completed a “batterer’s treatment program;”
  3. Whether the perpetrator has successfully completed an alcohol or drug abuse counselling program if deemed appropriate by the court;
  4. Whether the perpetrator has successfully completed a parenting class if deemed appropriate by the court;
  5. Whether the perpetrator has been placed on probation or parole, and whether he or she is subject to a restraining order, and his or her compliance with its terms; and
  6. Whether the perpetrator has committed any further acts of domestic violence.

If both parents have committed family violence, the court may award custody to a third party or to the parent whom the court finds to be less likely to continue to perpetrate family violence, and the court may order the custodial parent to complete a “treatment program.”

The court may not require a victim of domestic or family violence to attend counselling, individually or with the perpetrator, as a condition of custody.

In J.P. v. S.V.B., 987 So.2d 975 (Miss. 2008), the court upheld a finding of family violence where a father slapped his daughter several times and made her nose bleed.

In Lawrence v. Lawrence, 956 So.2d 251 (Miss. App. 2006), the court of appeals remanded a child custody adjudication where the record established that the father had a history of violence.  The court directed the chancellor to apply and comply with the statute.

In C.W.L. v. R.A., 919 So.2d 267 (Miss. App. 2005), the court upheld a chancellor’s finding that the statute was inapplicable where the proof showed a few incidents of yelling and screaming, slapping and one episode of choking, but no serious or even moderate injuries.

Interestingly, MCA § 93-5-24(4) provides that “There shall be a presumption that joint custody is in the best interest of a minor child where both parents have agreed to an award of joint custody.”  Does this mean that the parents can cancel the family violence presumption by agreeing to a joint custody arrangement?  I don’t find any case law on the point.

As a practice matter, you need to know up front whether your client will be vulnerable to the presumption.  Has he had a conviction for domestic violence?  Has he been put under a County Court TRO?  Has he been convicted of assault on a family member?  Has there been Youth Court or DHS involvement?  Has he gotten carried away in his discipline of the children or in an argument with his wife? 

If you detect problems early enough, you can take proactive measures to get your client counselling or anger management classes or some form of treatment that will give the chancellor a reasonable basis to make a finding that your client has rebutted the presumption.

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