When Joint Custody is the Gateway to Sole Custody
November 20, 2013 § 3 Comments
Brittany and Douglas Clark consented to an irreconcilable differences divorce, agreeing to allow the chancellor to adjudicate “the primary physical custody” of their son, Brayden, and several other support and visitation issues.
At trial, the chancellor heard testimony from both sides, and announced that if he were to award custody of the child to either parent, “[he] would be taken care of. [He] would be loved. [He] would be supported. [He] would be nurtured. [He] would be raised properly.” The judge added:
The [Mississippi Supreme Court] has decided [this court] must follow and do what is in the best interest of the child after [it has] gone through all the Albright factors, and . . . these are the kinds of cases that . . . it’s hard . . . to give the child to one or the other because everything here would support that. . . . [H]ow can you choose one over the other, but [this court] has to.
The chancellor awarded custody of Brayden to Brittany, concluding that it would be in the child’s best interest to do so. Douglas appealed, one assignment of error being that the chancellor had failed to award joint physical custody, per Easley v. Easley, 91 So.3d 639 (Miss. App. 2012). [Note: A previous post on the Easley case is at this link].
In the case of Clark v. Clark, decided November 12, 2013, the COA reversed and remanded. Judge Roberts’ opinion, for the court, explained:
¶10. Douglas argues that the chancery court erred when it determined that it could not award joint physical custody. As was quoted above, the chancery court made the following statement before awarding full physical custody to Brittany: “[In these] kinds of cases . . . it’s hard . . . to give the child to one or the other because everything here would support that. . . . [H]ow can you choose one over the other, but [this court] has to.” (Emphasis added). The trial was held and the oral decision of the chancery court was made on June 12, 2012. However, just a few days earlier, this Court handed down the case of Easley v. Easley, 91 So. 3d 639 (Miss. Ct. App. 2012), which is directly on point for this particular issue.
¶11. In Easley, the chancery court stated that joint physical custody was in the best interest of the child, but the court was not permitted by law to grant joint physical custody when it was not requested by both parties in an irreconcilable-differences divorce. Id. at 640 (¶1). Therefore, the court awarded full physical custody of the minor son to the father. Id. Reversing and remanding the chancery court’s decision, this Court found that “[t]he [chancery court] erroneously concluded that joint custody could not be awarded” under Mississippi Code Annotated section 93-5-24(2) (Rev. 2004), and it was error to deviate from the child’s best interest by awarding sole custody to the father.Easley, 91 So. 3d at 641 (¶10). Additionally, in Crider v. Crider, 904 So. 2d 142, 148 (¶15) (Miss. 2005), the Mississippi Supreme Court held:
[W]hen parties consent in writing to the [chancery] court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of “joint application” in [section] 93-5-24(2). This is the only interpretation that conforms to the primary directive of [Mississippi Code Annotated section] 93-5-24(1) [(Rev. 2004)] that “custody shall be awarded as follows according to the best interests of the child.”
Importantly, before awarding joint custody, a chancery court must determine whether the parents are “capable of sharing joint custody cooperatively[.]” Crider, 904 So. 2d at 147 (¶13).
¶12. We are presented with a similar set of facts. Like in Easley and Crider, the divorce was granted on the ground of irreconcilable differences. Based on our reading of the transcript, it appears that the chancery court may have concluded, like the chancery court in Easley, that it was required to order custody to one parent regardless of whether joint physical custody was in the best interest of Brayden. The chancery court made no finding that Brittany and Douglas could not cooperate if joint custody was awarded. See Crider, 904 So. 2d at 148 (¶15) (“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.”). We are concerned that the chancery court may have concluded that it was not authorized to consider joint physical custody; therefore, we reverse the chancery court’s judgment and remand this case to the chancery court for it to reconsider its award of custody, including the propriety of awarding joint physical custody.
As I’ve said here before, when you consent for the judge to adjudicate custody, you are opening the door to joint custody.
But does this mean that in all cases the judge is required first to consider whether joint custody should be awarded, and, only after finding that it is not in the child’s best interest, then move on to the issue of sole custody? I think it does. I don’t see any other way to read this line of cases.
If my interpretation is correct, it means that joint custody is the default setting for custody in this type case, if the issue is left to the court to decide, and the court must find a basis under case law or in the statute to deny joint custody before moving on to considering an award of sole custody.
At the very least, these are matters you should discuss in detail with your client before drafting that consent.
Can you limit the court’s scope of award via draftsmanship? I question whether you can, based on this language from Crider: “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.”
The Better Chancery Practice Blog 
[…] the chancellor’s failure to consider joint custody was error. She contended that Crider and Clark v. Clark, 126 So.3d 122 (Miss. App. 2013) required the judge to consider whether joint custody was in the […]
>
does this mean that in all cases the judge is required first to consider whether joint custody should be awarded, and, only after finding that it is not in the child’s best interest, then move on to the issue of sole custody? I think it does. I don’t see any other way to read this line of cases.
If my interpretation is correct, it means that joint custody is the default setting for custody in this type case, if the issue is left to the court to decide, and the court must find a basis under case law or in the statute to deny joint custody before moving on to considering an award of sole custody
<
I think that is over-reading these cases; they involve the case where the balance is even, or the chancellor made a mistake of saying that, as a matter of law, he couldn't consider something when, as a matter of law, he could.
If the chancellor fails to make the Easley statement (that he couldn't as a matter of law, he couldn't consider joint custody) and does make the affirmative finding that it is in the best interest for one parent and not the other to have custody, he should be affirmed. It wouldn't hurt to protect the record by making a finding about joint custody, but the finding of "a and not b" is what is required, it seems to me.
My curiosity is about this: I have known chancellors– Judge Tony Farese was one– who believed that joint custody had the potential to create impasses and thus would not award it where he was making the decision. I wonder if a clever chancellor could craft language expressing that concept to reject joint custody on best-interest grounds. I kind of doubt it.
You may be right; I may be reading too much into these cases. Both turn on the statement that the judge made that he felt that he had to choose between the 2 parents, and that there was no other option. Still, I think that the COA’s language and analysis goes beyond the bare statement by the trial judge; hence my [over]reaction.
As for impasse concerns, we have long required in this region that joint custody must include a tie-breaker provision between the parents, and that has seemed to do away with the problems that arise from a committee of two. Most joint custody arrangements I have seen work just fine, despite the concerns voiced by chancellors when the joint custody statute was first enacted. We had several in this area who would not under any circumstances approve joint custody, but that has largely faded away over time. I
When I attended the National Judicial College in 2007, some experts in the field made a presentation urging that joint custody be the preferred arrangement because of strong data that substantial parental involvement by both parents is best for the children. Nobody ever presents me with learned-treatise-type evidence of this nature to support a claim on one side or the other, so I can’t say that I’ve had to consider it in court, but there are studies out there that would support joint custody awards.