JOINT CUSTODY OUT OF THE BLUE

January 25, 2012 § 2 Comments

Neither party has asked for joint custody in their pleadings. They consent to a divorce and agree that the chancellor shall adjudicate custody. The husband testifies that he wants sole custody. The wife testifies that she wants either sole custody or joint custody.

Can the chancellor grant joint custody?

The answer is set out in Crider v. Crider, 904 So.2d 142, 148 (Miss. 2005), where the Mississippi Supreme Court stated:

We hold that when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of “joint application” in § 93-5-24(2). This is the only interpretation that conforms to the primary directive of § 93-5-24(1) that “custody shall be awarded as follows according to the best interests of the child.” It is the chancellor who must determine what is in the best interest of the child, and it is the chancellor who determines the level of commitment parents have to sharing joint custody.  

So the answer is yes, where the parties have consented to an irreconcilable differences divorce, the judge may grant joint custody regardless whether it was specifically spelled out as an option in adjudication of custody.

It would seem under Crider’s language that the parties may not limit the court’s determination of best interest — say, by a stipulation that joint custody shall not be awarded — any more than could the statute. But to my knowledge that issue has not been addressed by the appellate courts.

The trial court must still weigh whether the relationship between the parties is suitable for joint custody. After all, joint custody is inappropriate where the parties are unable to communicate and cooperate.  Lewis v. Lewis, 974 So.2d 265, 266 (Miss. App. 2008); Crider, at 147.

In Phillips v. Phillips, 45 So.3d 684, 695-96 (Miss. App. 2010), the COA upheld the chancellor’s award of joint custody, alternating a week at a time, despite a history of animosity and strained relatiosnhips. Citing Crider, the court said at ¶34 that “The chancellor is in the best position to evaluate the parties’ capabilities to cooperate.”     

In Watts v. Watts, decided by the COA on January 24, 2012, at ¶ 28, the court again affirmed the chancellor’s award of joint custody, and cited Crider. The parties had entered into a consent for divorce leaving the issue of custody for adjudication by the court. Echoing Crider, the COA held that it was up to the chancellor to evaluate the evidence and to decide whether the level of conflict between the parties made joint custody undesirable or unworkable. 

Another post with some ruminations about joint custody is here.

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