When is Temporary Relief Available in Family Law Cases?

June 18, 2014 § 5 Comments

I have heard it said that chancery courts routinely grant temporary relief in any matters pending before them. Is that so? And in what matters is temporary relief available?

Let’s look at family law.

Anyone who has done any Mississippi family law knows that temporary relief is available in divorce cases. The authority of the chancery court to grant temporary relief in a divorce proceeding is found in MCA 93-5-17(2), which provides:

The chancellor in vacation may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.

Divorce is a creature of statute unknown in the common law; therefore, any relief obtainable in a divorce must have its source in a statute. Since this statute is part of the title dealing with divorce, and is a subsection of the statute that requires divorce hearings to be held in open court, I am confident in saying that this particular statute is not authority to grant temporary relief outside the context of a divorce.

Likewise, in cases of determination of parentage, MCA 93-11-65(10) creates a remedy:

Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic testing or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.

Notice that the latter statute does not not include custody among the relief provided. The COA has held that both natural parents have an equal right to custody of the child, regardless whether parentage has been finally determined. So, on the one hand, it would appear in a custody dispute between parents in a parentage case that the tug-of-war between them must continue unabated by temporary custody because there is no provision in the statute for temporary custody. The conundrum is exacerbated by the simple fact that support is customarily (always?) paid to the parent with custody, which is certainly logical, because we have to know where the child will be in order to know where to direct the support. If the court has no statutory authority to award custody in such a case, how can the court award child support?

It could be that the chancellor may simply order extra-statutory temporary relief in a given case based on equitable principles. In the parentage case, for example, the court could award temporary custody in order to get to the statutorily permissible temporary support award.

But would such an order stand? After all, we know that there is no appeal of right from a temporary or interlocutory order.

I think the distinction may lie in the nature of the review. If the merits of the order are attacked, then I think the appeal fails. If the power of the court to grant the temporary relief is attacked, then I think the appeal would have merit. An example of the latter is Martin v. Falcon, #2013-IA-1985-SCT (December 5, 2013), in which Justice Coleman vacated a temporary order granting grandparent visitation.

Is there even a right to a temporary hearing in a grandparent visitation case? I would argue in the negative, for two reasons: (1) the grandparent visitation statute has no provision whatsoever for temporary relief, and like divorce and parentage, it is a creature solely of statute; and (2) to grant temporary relief is to presume on the ultimate issue that the petitioner is entitled to such relief, which is not always so.

Of course, temporary relief is expressly available in injuntions, per MRCP 65, in the form of a TRO. A TRO does require the existence of an emergency or danger of irreparable harm if no relief is immediately granted. And the domestic violence statutes incorporate such relief.

Custody modification cases and third-party custody cases are somewhat more problematical. There are statutes dealing with custody, and its award and forms, but they do not specifically mention temporary relief. In this district, we do not allow temporary relief in a child-custody-modification case unless there is an emergency or it is clearly necessary to protect the best interest of a child until a final determination may be made. To do otherwise would peremptorily adjudicate the ultimate issue in the case.

When the chancellor acts in an emergency or other exigent situation to protect the child, her actions are based on Article 6, § 159 of the Mississippi Constitution, which gives chancery courts “full jurisdiction” over “All matters in equity,” and “Minor’s business.” Custody has long been recognized as being under the mantle of chancery jurisdiction, and, indeed, our cases speak in terms of the chancellor being the “superior guardian” and protector of the child’s best interest. I think as between the apparent form required by statute and the chancellor’s determination that action must be taken for the best interest of a child, the court will and should go with the best interest every time.

I would reconcile all of the foregoing by saying that I believe that, in the absence of exigent circumstances requiring immediate intervention the court should avoid temporary relief unless there is a statutory provision or rule expressly providing that relief. Your chancellor may see it differently, based on an entirely different rationale, but that is the way I view it.

This post addresses temporary relief in family law matters. Temporary relief in the many other types of cases within chancery jurisdiction is the subject of another post.

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Thanks to Attorney George S. Whitten of Greenwood for supplying some of the material for this post.

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§ 5 Responses to When is Temporary Relief Available in Family Law Cases?

  • Is there any case law in Mississippi that specifically address whether you can have a temporary hearing in a custody modification when the circumstances don’t rise to the level of an emergency (immediate danger of irreparable harm)?

    • Larry says:

      The only authority I know of is MRCP 81(d)(2), which refers to temporary proceedings in “child custody matters.” As a matter of practice, almost all chancellors refuse temporary relief in custody modifications except in emergency situations because to grant a temporary modification is to grant the ultimate relief, almost like a summary judgment.

  • George Whitten says:

    When the Grandparent Visitation Act was still young, “A hearing was held [on grandparents’ motion] for temporary visitation rights on March 24, 1988 . . . .

    “On April 1, 1988, Chancellor Paul Alexander rendered an opinion which stated in part:

    ‘The Court is of the opinion that it is not authorized to grant temporary visitation rights but is of the opinion that it has the right to grant permanent visitation rights upon a hearing if it finds that permanent visitation rights are appropriate in all of the circumstances. It is not necessary at this time for the Court to go into all of the details of this case. It is sufficient to say that when all of the pleadings are in order and the discovery, if any, is complete, this matter should then be set down for a hearing on the amount of visitation that should be granted to the Plaintiffs, if any.’ ”

    – quoted in Muse v. Hutchins, 559 So.2d 1031 at 1032 (Miss. 1990) (affirming all of the chancellor’s rulings that were assigned as error; denial of temporary visitation was not appealed).

  • Gary Roberts says:

    Thank you for today’s post. I really do not have a strong difference of opinion with what you have said, with the possible exception of temporary relief in custody modification suits. Admittedly, a temporary order in such a situation can indeed put one of the parties in a position of great advantage when the final hearing rolls around. And, conversely, the other party can suffer significant disadvantage. Consider the difficulty in trying to get custody back after a Chancellor has ruled that custody should be changed temporarily. The problem is even more apparent when considering that the temporary Order can sometimes be in force for many months before a final hearing is held. But I believe that it would be unwise to adopt a carte blanche rule that there can be no temporary modifications of custody. Your jurisdiction evidently addresses the issue by requiring either “an emergency” or where it is “clearly necessary to protect the best interest of a child”. Such language is now presumably well known by the local bar, as it should be, so whenever a request is made for temporary relief in a custody suit, the lawyers know what to allege, which will trigger the right to a hearing. In the final analysis, it comes down to the Chancellor’s opinion of whether the facts justify temporary relief within the framework of the required language, and that can’t be determined until the evidence is heard, so long as the magic language is plead. I would certainly argue that temporary relief should be available in custody suits (maybe even especially in custody suits given the magnitude of the decision to be made). No one can legitimately argue that a child should be required to endure living in circumstances contrary to his best interest, for sometimes as long as 6 or 8 months, or perhaps even longer, simply because the court can’t conduct a final hearing for that long. How meaningless would it be to have, on the one hand, a Chancellor who is required to at all times protect the best interest of the child, while at the same time being unable to grant temporary relief. There is certainly no shortage of opinion among the bar, and the public, about what is truly an emergency or what is clearly necessary to protect the best interest of a child, but it still comes down, as it should in my view, to the Judge exercising the Constitutional authority, indeed the responsibility, to protect the child at all times, whether it is temporary or not. That is just one reason why I frequently remind my clients of how powerful Chancellors really are.

  • My brain just exploded!

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