Fixing Visitation
April 10, 2017 § Leave a comment
A New York court awarded Allison Estes custody of her minor son and authorized her move to Mississippi. Kevin McKeown, the father, was awarded visitation, and he was obligated to provide Allison with notice of visitation, an itinerary, and the address where he would be staying during visitation.
Following several visitations in which Kevin did not provide advance notice or the required information, Allison filed suit in Mississippi. There was a period in which process repeatedly failed, until Kevin was personally served. He then entered an appearance pro se, and made several objections to jurisdiction. Kevin did not attend the trial, at which he was found in contempt. The chancellor also suspended visitation until Kevin would produce proof of residence, and imposed the condition that visitation could not be exercised without proper notice. He also assessed Kevin with $2,200 in attorney’s fees. Kevin appealed.
In McKeown v. Estes, decided March 7, 2017, the COA affirmed. Judge Barnes addressed the issue of limitations on visitation for the court:
¶23. Finally, Kevin claims that the chancellor showed “little regard to the best interest of [the child], [and] bias and poor discretion in ignoring the ‘totality of the circumstances.’” Kevin does not elaborate regarding how the chancellor allegedly showed bias or ignored the totality of some unspecified circumstances. In any event, Kevin cites Ash v. Ash, 622 So. 2d 1264, 1266 (Miss. 1993), as support for his very brief claim.
¶24. Ash did not involve modification of visitation conditions. Instead, Ash followed an order modifying custody of a child. Id. at 1265-67. The mother’s “continued refusal” to allow the child to visit his father led to custody modification. Id. at 1266. But Ash does not support Kevin’s claim that the chancellor erred by modifying certain conditions of Kevin’s visitation. Kevin does not argue that the modified conditions are unreasonable. Moreover, Kevin does not attempt to explain how those conditions are somehow contrary to the child’s best interest, or how they could negatively impact his relationship with his son.
¶25. “To modify a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child.” Moreland v. Spears, 187 So. 3d 661, 666 (¶17) (Miss. Ct. App. 2016). “The chancellor is granted ‘broad discretion’ in visitation determinations[,] and [an appellate c]ourt will not reverse a chancellor’s findings of fact so long as they are supported by substantial evidence in the record.” Wilburn, 991 So. 2d at 1194 (¶20). “[T]he best interest of the child is the main concern in determining visitation.” Id. at (¶23).
¶26. Allison testified that the New York visitation order was not working because Kevin was not complying with it, and there were no consequences for his noncompliance. When he provided late, last-minute notice that he would exercise his summer visitation, it was difficult to prepare their child for his long interstate trip. Kevin also failed to return the child when he said he would; so the child missed activities that had been scheduled in advance. Additionally, Allison was not able to contact the child during Kevin’s visitation, and Kevin would not disclose the child’s location. Modifying the visitation order to provide specific provisions rather than ones that are flexible and vague was in the child’s best interest, because it tends to foster a more positive and harmonious relationship between Allison and Kevin. See Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). Consequently, we find that the chancellor did not act contrary to the child’s best interest, and it was within his discretion to modify the New York visitation order.
¶27. We recognize that “[a]bsent extraordinary circumstances, the noncustodial parent during visitation should have broad authority and discretion with respect to the place and manner of visitation.” Jaggers v. Magruder, 129 So. 3d 965, 969 (¶21) (Miss. Ct. App. 2014). The chancellor’s decision does not impact Kevin’s broad authority and discretion regarding where he takes his son during his visitation periods. He must simply inform Allison where he will be exercising it, and provide her with adequate notice before he does so. Considering the distance between Oxford and New York City, those conditions are not unreasonable. This issue is meritless.
This case highlights the broad authority of a chancellor to the often vexatious conflicts that arise over visitation. Conditions and restrictions may be imposed where reasonable and necessary to address the problems with visitation.
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