Joint Custody Outside of Divorce, Part Deux

November 15, 2017 § Leave a comment

Yesterday we visited the situation where the natural parents in a paternity suit were awarded joint custody of their child. It was deemed okay by the COA.

Today we consider whether the chancellor may award joint custody between paternal and maternal grandparents in a case where both are claiming custody due to unfitness of the natural parents. That’s what happened between Monica Darby (paternal) and Harold and Karron Combs (maternal).

The chancellor awarded the grandparents joint custody, and Monica appealed. The COA affirmed in Darby v. Combs on October 25, 2016. Monica filed a petition for cert, and the MSSC granted it.

On November 9, 2017, the MSSC affirmed the COA in Darby v. Combs. Justice Maxwell wrote for a 6-2 court, with Ishee not participating:

¶23. Chancellors have jurisdiction to make custody decisions. See Miss. Const. art. 6, § 159; see also Davis v. Davis, 194 Miss. 343, 12 So. 2d 435, 436 (1943). And their decisions must be made with an eye on the best interests and welfare of the child. Albright, 437 So. 2d at 1005; Carr v. Carr, 480 So. 2d 1120 (Miss. 1985) (extending the coverage of the Albright decision to all original custody decisions)). Here, the Court of Appeals correctly recognized this notion, explaining “[i]n a custody contest between third parties,where neither party has a superior right to custody of the child, the child’s best interests and welfare are the polestar consideration.” Darby, 2016 WL 6276610, at *7.

¶24. With Addie’s best interests in mind, and in light of his finding that Crystal and Andrew were unfit parents, the chancellor consulted Section 93-5-24(1)(e). This statute clearly permits third-party custody arrangements. Under Section 93-5-24(1)(e):

Upon a finding by the court that both of the parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child the court may award physical and legal custody to:

(i) The person in whose home the child has been living in a wholesome and stable environment; or

(ii) Physical and legal custody to any other person deemed by the court to be suitable and able to provide adequate and proper care and
guidance for the child.

Miss. Code Ann. § 93-5-24. So, based on his finding of parental unfitness, the chancellor was statutorily empowered to fashion a third-party-custody award. Monica does not seriously contest the chancellor’s authority to grant third-party custody. What she argues is that the chancellor lacked authority to craft a third-party joint custody award.

¶25. As support, Monica latches on to the use of the word “person” and the phrase “any other person” in Section 93-5-24(1)(e)(i) and (ii). She insists this singular language makes clear that only one person or party may receive custody. So as she sees it, joint custody awards are not allowed between third parties under Section 93-5-24(1)(e)(i) and (ii). She suggests the definition of joint physical custody in Section 93-5-24(5)(c) supports her interpretation. [Fn omitted] We disagree.

¶26. First, it is obvious Subsection 93-5-24(5)(c) contemplates joint physical custody between “parents.” And here, the chancellor deemed Addie’s parents unfit for custody.

¶27. Second, Monica overlooks—and our statutory law instructs—that “[w]ords used in the singular number only, either as descriptive of persons or things, shall extend to and embrace the plural number . . . except where a contrary intention is manifest.” Miss. Code Ann. § 1-3-33 (Rev. 2014). And we see no contrary intention manifested within the statute.

¶28. Indeed, Section 93-5-24(5) concludes by explaining that “[a]n award of joint physical and legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child and . . . the parents or parties shall confer with one another in the exercise of decision making rights, responsibilities, and authority.” So, Section 93-5-24(5) suggests that joint physical and legal custody may be awarded to either parents or parties. Thus, we find no legal error in the chancellor’s statutory application.

¶29. As we recognized in Crider, the overarching consideration in Section 93-5-24 is that “[c]ustody shall be awarded as follows according to the best interests of the child.” Crider v. Crider, 904 So. 2d 142, 144 (Miss. 2005). And here, we cannot say the chancellor’s custody award was against Addie’s best interest.

II. Cooperation for Joint Custody

¶30. Monica next suggests the chancellor erred by awarding joint custody without making an express finding that the parties could cooperate as Addie’s joint custodians. We disagree. As discussed, the chancellor carefully walked through the Albright factors [Fn omitted] and crafted a
workable third-party custody arrangement.

¶31. Though joint custody between third parties may not typically be preferable, this is a difficult and, as the chancellor put it, “unusual” case. Facing the realities of obviously unfit parents and a neglected child, the chancellor did what he was duty bound to do—he consulted Section 95-5-24 and keyed in on the child’s best interest and welfare. [Fn omitted] The severity of Andrew’s drug problems, mental-health issues, and violent tendencies and Crystal’s extensive drug and alcohol abuse required the chancellor look elsewhere for custody arrangements.

¶32. When parents cannot agree on who should have primary custody of the children, this Court has suggested “it is probably the better course for the chancellor to make that decision for them reserving joint custody for parents who are willing to work together to make joint custody feasible.” Waller v. Waller, 754 So. 2d 1181, 1184 (Miss. 2000) (emphasis added). [Fn omitted] The dissent basically stretches this language into a new affirmative requirement, essentially grafting a non-Albright factor onto the Albright test. And it concludes remand is necessary because the chancellor did not make an “express determination of whether the parties can cooperate in exercising joint custody.” We agree this consideration is certainly relevant. But by no means did Waller create a new mandate that chancellors make this “express determination,” or else a joint-custody award and Albright analysis will be legally lacking and require remand for additional findings. Rather, the Waller court, citing an American Law Report on joint-custody awards, suggests in a footnote that chancellors make joint custody awards where the parties are able to cooperate. Id. at 1184 n.1 (citations omitted).

¶33. Here, the chancellor rejected the GAL’s recommendations and carefully weighed the Albright factors and statutory law, deciding a joint-custody award was “the safest route” to protect Addie from potential violence. He had no qualms that Monica and the Combses could carry out this arrangement. If he had felt a joint-custody arrangement was unworkable, he would not have fashioned one. After review, we find no error in the chancellor’s joint custody award.

Afterthoughts:

  • Joint custody keeps embracing more and more relationships. It goes well beyond the marital relationship based on yesterday’s and today’s reported decisions.
  • I included the discussion about ability to cooperate because I think there’s been some confusion over whether it is a threshold requirement. To me it has been more of a disqualifying factor; i.e., where the evidence is clear that there can be no cooperation, I rule joint custody out. I do not require affirmative proof of cooperation, however, before awarding joint custody.
  • One form of joint custody I am seeing — and strongly resisting — is joint custody (50-50) in PSA’s with no child support. I think joint custody is being used that way in many cases as a “business decision” with non-payment of child support as a bargaining chip. Joint custody, however, should be about providing the safest, most secure, most nurturing environment in the best interest of the child rather than a justification for no child support. When you link money with the joint custody arrangement, the sweet aroma changes to a foul odor.  I don’t like it a bit. And, for you lawyers who push this idea, you are creating a new, potent avenue for “divorce blackmail” that can blow up in your face when you are on the opposite side of the issue.

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