MORE ON FAMILY VIOLENCE AND CUSTODY

December 2, 2010 § 2 Comments

The court of appeals on November 30, 2010, upheld a chancellor’s decision that the statutory presumption against awarding custody to a party who has a history of family violence did not apply in the facts of the case.  I previously posted about the presumption and its effect on custody here.

In Brumfield v. Brumfield, which was before the chancellor on remand for specific findings on the Albright factors, there was evidence that the husband, Alex, who was awarded custody, had argued with his wife Heather, grabbed her, dragged her outside, threw her to the ground and hit her twice with a belt.  The parties reconciled after the event, although they later separated again.  The chancellor found the episode to be “isolated,” and insufficient to trigger the presumption.  A majority of the court of appeals, by Justice Myers, agreed with the chancellor’s finding that the record established only the single incident of domestic violence.

Justice Carlton, in a written dissent, reached deep into the record and found a document purporting to be a “sentencing order” from the Walthall County Justice Court on a charge of stalking and telephone harassment brought against Alex by an unnamed person.  The document stated that the charges had been remanded to the file.  Justice Carlton took the position that the document supported a finding of a pattern of family violence, even though the document did not appear to have been introduced into evidence, and there was no authentication.  The majority opinion pointed out that Heather had never mentioned the charge in her testimony at trial, in her arguments before the chancellor, or in her briefs filed with the court of appeals.  Apparently the chancellor had found the document either inadequately authenticated, or too vague with respect to its victim, or otherwise lacking probative weight.  It has long been the law in Mississippi that, in the absence of specific findings, it is presumed that the chancellor resolved fact issues in the appellee’s favor.  McNeil v. McNeil, 607 So.2d 1192, 1193 (Miss. 1992).

There are two refreshing aspects of the majority opinion:  One is the finding that Chancellor Debbra Halford acted properly in considering the belt-hitting incident in the context of her consideration of the Albright factors, rather than reaching outside the evidence to make a finding for the presumption; and Two that the majority deferred to the chancellor’s judgment and discretion, based as it was on her observation of the demeanor and credibility of the witnesses. 

As a lawyer, you need to plan your case either to meet the presumption or to persuade the chancellor to find that it applies.  You don’t want to get blind-sided by the presumption if it is against your client, and you don’t want your proof to fall short if the presumption is in your client’s favor.  In the Brumfield case, might the outcome have been different if Heather’s lawyer had put more emphasis on proof supporting the presumption?  Remember, chancellors have to base their decisions on what is in the record, and it is your job to make that record.

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