Embarrassment is not an Adverse Effect
April 12, 2016 § 3 Comments
Brandi Spears and her then-husband, Ken Moreland, agreed in a 2012 PSA that Brandi would have physical custody of their child, and they would share joint legal custody. (Note that Brandi is the spelling in the style of the case, but Brandy is the spelling used throughout the opinion).
In 2013, Brandi sued Ken for modification, claiming that there had been a material change in circumstances in that Ken had failed to pay some of the child’s expenses as he agreed, and seeking sole legal custody, a change in the visitation schedule, an order for Ken to have a mental evaluation, and attorney’s fees.
The chancellor did modify the legal custody to award Brandi sole legal custody and other relief. From that ruling, and from the other relief, Ken appealed.
In its decision in Moreland v. Spears, handed down March 1, 2016, the COA, by Judge Griffis, recited the familiar rule that modification of custody requires a showing, by a preponderance of evidence, that there has been (1) a material, substantial change in circumstances since entry of the original custody order that has (2) had an adverse effect on the child, and (3) it is in the child’s best interest to change custody.
After analyzing the evidence of material change, the opinion turned to the proof of adverse effect:
¶12. Despite whether these instances constituted a material change in circumstances, it was incumbent upon Brandy to show these changes had an adverse effect on Lauren. Brandy’s only contention of an adverse effect was that some of Ken’s actions embarrassed Lauren and, as Lauren grew older, Brandy speculated that the extent of embarrassment would increase. Brandy, however, fails to show how embarrassment equates to an adverse effect. Lauren continued to performed well in school and received satisfactory marks in her progress reports. As such, we find that Brandy failed to prove any adverse effects on Lauren.
¶13. This Court has held far more egregious conduct did not warrant a change in custody when no adverse effect occurred. In Sudduth v. Mowdy, 991 So. 2d 1241, 1245 (¶14) (Miss. Ct. App. 2008), this Court found the minor child’s dental problems, the mother’s inappropriate relationships, and the allegations that the mother gave the child anti-psychotic drugs did not warrant a modification of custody from the mother to the father when the father failed to prove any adverse effects on the child.
¶14. Likewise, in Wikel v. Miller, 53 So. 3d 29, 35-36 (¶¶15, 17) (Miss. Ct. App. 2010), this Court affirmed the chancellor’s findings that the mother’s interference with the father’s visitation, the minor children’s behavioral problems requiring counseling, and the mother’s prior relationships did not warrant a modification in custody when the minor children excelled in school and showed no adverse effects. For these reasons, Brandy failed to demonstrate that Lauren suffered from adverse effects warranting a modification.
I might add that, in my experience, most teenagers spend the greater part of their teen years being embarrassed and mortified about one thing or another, so it’s a wise rule not to let something as serious as modification turn on that kind of spasm of emotion.
The Better Chancery Practice Blog 
“Humiliation – that’s free.” (Jenny Lewis)
“I might add that, in my experience, most teenagers spend the greater part of their teen years being embarrassed and mortified about one thing or another”. —-How true!
Wow! Giving a child psychotic drugs does not an adverse affect on a child? I guess I would have to read the facts and opinion for myself, but I would think providing such potentially dangerous drugs to a child would be enough. So did the child take it and then did not show any effects from taking the drug at all or did the father not have evidence that indicated the child did not have effects? As you can tell, I am just shocked!! Tom
Thomas P. Setser, Esq. mobile: 601-201-1667 tom@lawyertom.net
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