A Flurry of Child Custody Modification Points

April 15, 2014 § Leave a comment

The COA’s decision in Hall v. Hall, decided March 25, 2014, is not one of those milestone cases that stands out from others.

It does, however, include a nifty selection of legal authority that you can use as a refresher and file away for future use. It’s nothing that you don’t already know or aren’t acquainted with, but it is set out in handy, bite-sized portions for ease in serving up later. 

From Judge Fair’s opinion:

  • ¶9. The burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home. Riley v. Doerner, 677 So. 2d 740, 743 (Miss. 1996). To successfully move to modify custody of a child, a noncustodial parent must prove (1) that a substantial change in circumstances has transpired since issuance of the custody decree, (2) that this change adversely affects the child’s welfare, and (3) that the child’s best interests mandate a change of custody. McDonald [v. McDonald], 39 So.3d at 880 (¶37). “A modification of custody is warranted in the event that the moving parent successfully shows that an application of the Albright factors reveals that there had been a material change in those circumstances which has an adverse effect on the child and modification of custody would be in the child’s best interest.” Johnson v. Gray, 859 So. 2d 1006, 1013 (¶33) (Miss. 2003) (citing Sanford v. Arinder, 800 So. 2d 1267, 1272 (Miss. Ct. App. 2001)).

    ¶10. “The chancellor must consider the totality of the circumstances to determine ‘whether there was a material change in circumstances.’” Cantin v. Cantin, 78 So. 3d 943, 948 (¶15) (Miss. Ct. App. 2012) (citation and quotation omitted). If, after examining the totality of the circumstances, a material change in circumstances is found to have occurred, the chancellor “must separately and affirmatively determine that this change is one which adversely affects the children.” Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997) (citation omitted).

  • ¶15.  … In his judgment, the chancellor stated that there are no facts in the record to support that Dana’s cohabitation with a romantic partner had an adverse effect on the children. The chancellor also stated that the existence of an extramarital relationship, by itself, fails to provide a sufficient basis for a finding of an adverse material change. See Sullivan v. Stringer, 736 So. 2d 514, 517 (¶16) (Miss. Ct. App. 1999) (finding that cohabitation alone fails to give rise to a material change in circumstances). However, the existence of the relationship coupled with another adverse impact on the child provides a sufficient basis to warrant a custody modification. Id. at 518 (¶20). The chancellor did not err in considering this issue in his material-change analysis.

Comment: Modification of child custody requires what I refer to as a three-legged stool of proof. You must first prove that there has been a material change in the circumstances of the child and/or custodial parent. If you have proven the material change, then you must prove that the change has had some adverse effect on the child OR, per Riley, that the circumstances are so inherently dangerous or inimical to the child’s welfare that the court can assume an adverse effect. And, third, you must prove that it is in the child’s best interest to change custody. As with any three-legged stool, if any leg fails, the whole thing falls.   

  • ¶17. “If the court finds an adverse material change, then the next step is to apply the Albright factors to determine whether modification is in the child’s best interest.” White v. White, 26 So. 3d 342, 351 (¶28) (Miss. 2010) (citing Sturgis v. Sturgis, 792 So. 2d 1020, 1025 (¶18) (Miss. Ct. App. 2001)). The Albright factors are as follows: (1) age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which parent has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and child; (7) the moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of the home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Albright, 437 So. 2d at 1005.

Comment: Many attorneys base their trial tactics on the misconception that if they can prevail on more of the factors than the other side, their client wins. Not so. Here is what Judge Fair said about that approach:

  • ¶19. An Albright analysis is not a mathematical equation. Lee v. Lee, 798 So. 2d 1284, 1288 (¶15) (Miss. 2001). Further, the “factors are not meant to be weighed equally in every case.” Id. (citing Divers v. Divers, 856 So. 2d 370, 376 (¶27) (Miss. Ct. App. 2003)). Our supreme court has held that “[a]ll the [ Albright] factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson, 859 So. 2d at 1013-14 (¶36).

Comment: As I have said here before, the judge can give much greater weight to one or more factors, depending on the facts in the case. For example, I had an original custody case where the mother prevailed on nearly every Albright factor save one: she had a history of mental illness and was actively delusional, would not take medication, and saw her children as part of her delusion. Dad got custody. That “mental health of the parent” factor outweighed all the others combined. 

Even when a decision appears to be the “same old same old,” it just might be what you need to reacquaint yourself with the law on a given point.

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