Trifling with Visitation is no Trifling Matter

February 2, 2015 § Leave a comment

Some of the most bothersome and galling matters with which family lawyers have to contend are problems with visitation. They can include outright denial of visitation, conflicts during exchanges, interference during visitation, refusal to return a child, and every other atrocity one can conjure up. Those calls on the weekend and in the evenings can wear one to a frazzle.

In the case of Ash v. Ash, 622 So.2d 1264 (Miss. 1993), the MSSC affirmed a chancellor’s modification of custody based on a mother’s obstinate refusal to allow visitation and non-compliance with court orders, which the court described as involving the attention of “two prior chancellors and six attorneys” in more than ten court proceedings before the modification judgment.

In the case of Strait v. Lorenz, handed down January 6, 2015, the COA affirmed a chancellor’s decision to modify custody based on Travis Strait’s long-standing denial of visitation to his ex-wife, Kristy Lorenz. The parties had agreed in their irreconcilable differences divorce that they would share joint legal custody of their daughter, Jane, and that Travis would have “primary physical custody.”

Following the divorce, Kristy filed five times for modification and/or contempt, alleging denial of and interference with visitation in most of the actions. Travis filed actions in California and Hawaii for TRO’s, both of which were vacated. The chancellor in Mississippi denied Travis’s efforts to dismiss for lack of jurisdiction or to remove the case from Mississippi based on forum non conveniens.

In her pleadings, Kristy charged that Travis had sexually abused Jane, so the chancellor appointed a GAL to investigate. The GAL’s report was unfavorable to Travis, and, on Kristy’s motion, the chancellor entered an emergency temporary order changing custody to Kristy until the final hearing.

The chancellor awarded Kristy custody and other relief, and Travis appealed.

On the issue of material change, Judge Griffis of the COA said this:

¶27. In Ash, the chancellor issued various visitation-related restraining orders, emergency orders, and modification orders over the course of five years. Id. at 1265. The non-custodial parent then filed another motion to change custody and find the custodial parent in contempt. Id. The chancellor granted the motion, finding a material change in circumstances had occurred. Id. In affirming the chancellor’s ruling, the supreme court found that the visitation dispute was tackled by “two prior chancellors and six attorneys, [and] more than ten court proceedings,” none of which resolved the issue. Id. at 1266.

¶28. The facts in this action are comparable to Ash. As in Ash, the chancellor here contemplated liberal visitation, which was deliberately denied. See id. Also, there was an “onslaught of pleadings . . . stemming from visitation problems,” none of which were resolved by the chancellor’s orders. Id. at 1265.

¶29. Travis admittedly ignored Kristy’s attempts to contact him and would not allow Jane to take Kristy’s phone calls. The chancellor encouraged communication between Kristy and Jane through email and mail, but Travis disabled Jane’s email account that Kristy had created for her and there was testimony that Jane did not receive cards mailed to her. We cannot find the chancellor erred in finding the repeated failure to comply with visitation order was a material change in circumstances, for which contempt orders would not resolve.

¶30. Travis argues that the lack of visitation was not a “change in circumstances,” but rather a foreseeable, continued animosity between the parties that existed from the time of divorce. We cannot find that the chancellor anticipated, at the time of the divorce decree, that Travis would continuously refuse to comply with the visitation orders. Also, we note that no a single act of denying visitation amounted to a material change in circumstances. Rather, as in Ellis [v. Ellis, 952 So.2d 982 (Miss App 2006)], it was the “continued violation of court orders pertaining to visitation and continued hindering of the visitation time” that amounted to a material change in circumstances. Ellis, 952 So. 2d at 990 (¶17) (emphasis in original). Given the severity of the denial of visitation, we cannot find the chancellor abused his discretion in finding the denial of visitation was a material change in circumstances.

So the key is the “severity of the denial of visitation” which, from the cases, must be long-standing and extreme, and most likely involve repeated violations of court orders.

You should note that the proof in Strait included testimony of a mental health professional that the father’s conduct did have an adverse effect on the child. The opinion did not say so, but it apparently is not enough merely to show alienation and interference with contact; rather, the proof must show that the alienating behavior did have an adverse effect on the child, and the testimony of a mental health professional is probably the best means of doing that. In Strait, Travis’s behavior was so adverse that the chancellor characterized his custodial environment as “poisonous.”

I agree that most visitation disputes are more vexing than dangerous, and more paltry than extreme. Yet, if more parents understood that interference with visitation could lead to modification of custody, I believe it would result in far fewer visitation disputes in court.

 

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