Modifying Joint Legal Custody
September 8, 2015 § 2 Comments
Clayton and Melissa Hickey represented to a chancellor that they could get along well enough to warrant a joint-custody arrangement, and the judge granted them an ID divorce based on their assertion.
Their agreeableness, however, proved less than satisfactory to Melissa. She petitioned the court to modify joint legal custody to grant her sole legal custody based on a running course of disagreements over things such as: whether day care was a “need” of the children to which Clayton should contribute; which school the children should attend; whether Melissa’s boyfriend should be allowed to pick up the children from school; and other differences of opinion.
The chancellor agreed with Melissa and found that the disagreements were a material change in circumstances, and that the children were thereby adversely affected, meriting modification. Clayton appealed.
In Hickey v. Hickey, handed down December 16, 2014, the COA reversed. Judge Roberts wrote for the court:
¶ 29. In Goudelock v. Goudelock, 104 So.3d 158 (Miss.Ct.App.2012), this Court reviewed a chancellor’s decision to modify joint physical and legal custody of a child. Approximately seven months after the divorce, the ex-wife sought to obtain sole physical and legal custody of the child. Id. at 160 (¶ 3). The chancellor found that it was in the child’s best interest for the ex-wife to have sole physical and legal custody of the child. Id. at 162 (¶ 17). This Court found no merit to the ex-husband’s claim that the chancellor had erred. Id. at 164 (¶ 25). We noted that “the parties had not agreed on which school [the child] would attend,” and the ex-husband’s “failure to consent to certain dental procedures resulted in the premature extraction of [the child’s] tooth.” Id. at (¶ 23). The child’s dentist had recommended measures to avoid further decay of teeth that would lead to extraction without treatment. Id. at 161 (¶ 12). Because the child suffered from hemophilia, an extraction was potentially dangerous. Id. The ex-husband refused to allow the child to obtain treatment in Jackson, so the child’s teeth remained untreated for approximately seven months. Id. Consequently, the tooth decay progressed to the point that the child had to undergo an extraction. Id.
¶ 30. Here, there is no evidence that the children had any unusual medical needs, and there was no evidence that the children’s medical needs had been neglected in any way. The supreme court has held that isolated incidents do not justify a change of custody. Touchstone, 682 So.2d at 378 (quoting Smith v. Jones, 654 So.2d 480, 487 (Miss.1995)). “[I]t must be the overall circumstances in which a child lives, likely to remain unchanged in the foreseeable future and adversely impacting a child, to warrant a change of custody.” Id. (quoting Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984)). In Lipsey v. Lipsey, 755 So.2d 564, 565 (¶ 4) (Miss.Ct.App.2000), this Court held that a chancellor erred when he modified child custody. We based our decision on the fact that “the chancellor gave no reason for modifying custody except for citing the parties’ inability to cooperate with one another.” Id. at 566 (¶ 7). This Court stated that it “will not … allow a change in custody when the child has exhibited no adverse impact and [the child] is equally cared for by both parties.” Id. at 567 (¶ 8).
¶ 31. Based on the record before us, there is no evidence that the children had been adversely affected by the fact that their parents had joint legal custody. The record is simply silent in that regard. Nothing in the record indicates that the children were unhappy, or that any of their needs had been neglected. Because the chancellor did not find that the children had been adversely affected in any way by Clayton and Melissa’s disagreements, we are compelled to follow the supreme court’s precedent and reverse the chancellor’s judgment. Consequently, we render a judgment reinstating Clayton and Melissa’s joint legal custody.
I wonder how this holding meshes with MCA 93-5-24(6), which expressly states that “Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.” Does Hickey add an adverse effect requirement to the statutory language? If so, why? May a statute be amended by judicial fiat? What if the legislature’s intent was to eliminate the familiar adverse-effect requirement in custody modifications from joint-custody arrangements?
MCA 93-5-24 defines all forms of custody, including exclusive or sole, joint physical, joint legal, and joint physical and legal, so I don’t believe the legislature intended subsection 6 to apply only to forms of custody other than legal; in other words, joint legal custody is not in some undefined category.
What then is the standard of proof applicable in modification of joint legal custody? Is it material change + adverse effect + best interest à la Hickey and the cases dealing with modification of custody in general? Or is it material change only, as provided in MCA 93-5-24(6)?
I pointed out the statutory language in a recent post dealing with the practicality of joint custody.
The Better Chancery Practice Blog 
Hickey does add an “adverse effect” requirement in order to modify “joint legal” custody, and I surmise that is because of the Supreme Court’s holding in Porter v. Porter, 23 So.3d 438 (Miss. 2009) that “adverse effect” must be proven in order to modify “joint physical” custody. In Porter (p. 447 par. 23), the Court stated that “[A]ny suggested conflict between the statute, which is silent as to requiring adverse effect on the welfare of the child, and the caselaw is, in practice, not a conflict. The statute addresses the content of the petition, while the caselaw addresses the requisite proof for modification.”
My problem with the Court’s ruling in Hickey is why must the Court wait until the child has been adversely affected when it is clear that the parties have been unable to agree. In Riley v. Doerner, 677 So.2d 740 (Miss. 1996), the Court created an alternate “adverse environment” test that allows a Chancellor to modify physical custody absent proof of adverse effect. In my opinion, the alternate “adverse environment” test should also be applied when modifying joint legal because forcing parties to continue to try and agree upon what is in their child’s best interest only spawns more litigation and increases the risk of an “adverse effect” upon the child.
Another issue for discussion is the definition of “joint legal” custody. MCA 93-5-24(5)(e) defines “joint legal” as a requirement of the parties to “share” and “confer” regarding decisions relating to the child, however, many Courts have interpreted “share” and “confer” to mean “agree.” It is usually nearly impossible for divorcing parents to agree upon much of anything. In the last five years, I have witnessed “joint legal” custody spawn much litigation because of the Court’s interpretation that “joint legal” custody requires “equal” sharing of the decision-making rights, not just sharing, and “confer” means agree, not consult as defined by Webster’s. One must also question the practicality of “joint legal” custody as it is now defined by the Courts, and that is a disservice to the children of this State.
I suppose the courts could argue that “material” is defined as “having an adverse impact.” But yet again, the appellate courts are tying the hands of the chancellors who are supposed to be free to do equity. And frankly, I fail to see how refusing to share expenses for day care doesn’t have an adverse effect on the child.