October 30, 2012 § 1 Comment

It’s becoming more customary for the parties to provide in custody settlements for the non-custodial parent to have more visitation than the usual “standard visitation” (i.e., every other weekend, split of holidays, and some summer). Sometimes it works splendidly. When it does not, it can be a mess.

The latter is what happened in the COA case of Goolsby v. Crane, decided October 23, 2012. In that case, Michael Goolsby and his ex-wife, Angela Crane, agreed that Angela would have sole physical custody, and Michael would have visitation with his daughters every other weekend, and, in addition, from Monday afternoon to the return to school on Wednesday morning in non-weekend-viaitation weeks. After a while the parties agreed to deviate from the schedule to move Michael’s mid-week visitation to Wednesday-to-Friday-morning.

Things began to unravel when Angela filed pleadings to get an increase in child support and a family master increased it by $171 a month and ordered Michael to pay DHS $250 in attorney’s fees.

Michael filed a Rule 59 motion and then filed a counter-petition to modify custody and child support. He wanted the custody changed to joint physical due to the extent of his visitation, and he wanted the child support reduced based on the amount of time he had the children with him.

At trial the chancellor rejected the modification, finding that there was no proof of a material change in circumstances that adversely affected the children to the extent that custody should be changed. He did, however, find that the visitation schedule was not working, and he modified it to conform more to “standard” visitation, eliminating the mid-week visitation. His findings were based primarily on the testimony of the testimony of the 13-year-old daughter, who said that it interfered with her school work and made her uncomfortable for some other, personal reasons. The chancellor also increased the child support, although he recalculated it and found a figure somewhat less than that determined by the family master.

Michael appealed. His arguments and the COA’s conclusions:

  • The court rejected the argumant that it was error for the chancellor to refuse to modify custody, and then to modify visitation. The COA pointed out that there was a substantial basis to support both decisions. All that needs to be shown to change custody is that the visitation schedule is not working, and there was ample proof here.
  • The extent of visitation that was agreed did not amount to a relinquishment of control or abandonment of responsibility by Angela that would amount to a material change. The cases cited by the court beginning at ¶ 22 are cases you need to have in your repertoire of important modification cases, particularly Arnold v. Conwill, 562 So.2d 97, 100 (Miss. 1990), a case I’ve discussed here before
  • And, finally, the COA rejected (beginning at ¶ 29) Michael’s argument that liberal visitation by the non-custodial parent is tantamount to joint legal custody.

When you craft an agreement incorporating visitation that extends beyond the usual, make sure the language leaves no doubt as to who has what form of custody. Don’t swap around terms like “visitation” and “custodial time.” Instead of simply going along with what your client is proposing for visitation, play devil’s advocate and tease out some of the possible pitfalls that you’ve experienced and that your client may not even have thought of. Are there other ways to provide more time for the non-custodial parent that might not be so disruptive as they proved to be in Goolsby? One size does not fit all.

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