Restrictions on Visitation

January 22, 2018 § Leave a comment

Chancery courts are frequently called upon to limit a parent’s visitation with a child, usually because that parent has had limited contact with the child up to that point. Aside from the fact that the proposed solution only seems to add to the distance between parent and child, what does Mississippi law require in such a situation?

The recent COA decision in Michael v. Smith, decided January 9, 2018, includes some helpful information on point. Judge

¶25. Here … there is no indication that standard visitation would be detrimental to the child. … The chancellor awarded Michael overnight visitation and further awarded standard summer- and holiday-visitation privileges. While the chancellor did not place the same restrictions at issue in Fields, he did in fact restrict Michael’s visitation, as Michael’s weekend visitations did not include Friday.

¶26. “Except in unusual circumstances, a noncustodial parent is entitled to unrestricted standard or liberal visitation.” Deborah H. Bell, Bell on Mississippi Family Law § 5.08[2] (1st ed. 2005) (citing Cox v. Moulds, 490 So. 2d 866, 870 (Miss. 1986)). Standard visitation includes “two weekends a month until Sunday afternoon and at least five weeks of summer visitation[,] plus some holiday visitation.” Id. (citing Messer v. Messer, 850 So. 2d 161, 167 (¶22) (Miss. Ct. App. 2003); [Fields v.] Fields, 830 So. 2d at 1269 (¶12); Chalk v. Lentz, 744 So. 2d 789, 792 (¶9) (Miss. Ct. App. 1999)). “Awarding less is an abuse of discretion unless there is concrete proof of actual harm to a child.” Id. “Appropriate visitation restrictions often relate to abusive behavior, drug or alcohol abuse, or mental illness.” Id. at § 5.08[4].

¶27. Here, there is no evidence of actual harm to E.M.S., nor is there evidence of abusive behavior, drug or alcohol abuse, or mental illness by Michael. Instead, the chancellor found Michael’s lack of bonding with E.M.S. as the reason to restrict Michael’s visitation. However, such restriction seems counterproductive. Indeed, it is unclear how limiting visitation between Michael and E.M.S. would strengthen the parent-child bond. Moreover, the record shows that at the time of the amended judgment, Michael had been “bonding” with E.M.S. for at least four hours per week for almost one year.

¶28. “Our courts have adopted a policy of maintaining relationships between parents and their children even though the parent may be non-custodial.” Fields, 830 So. 2d at 1267 (¶6). The best interests of the minor child should be the paramount consideration . . . while respecting the rights of the noncustodial parent and the objective of creating an environment conducive to developing as close and loving a relationship as possible between parent and child. Bell on Mississippi Family Law at § 5.07[1] (quoting Chalk, 744 So. 2d at 792 (¶9)).

¶29. “[A]bsent evidence that the child [would be] harmed by standard visitation, the chancellor may not impose limitations on the visitation privileges of the non[-]custodial parent.” Fields, 830 So. 2d at 1268 (¶8). Here, as in Fields, there is no evidence to support the chancellor’s restrictions on Michael’s visitation with E.M.S. See id. at 1269 (¶12). Moreover, there is no evidence that E.M.S. would be harmed by standard visitation. Accordingly, we find the chancellor abused his discretion in restricting Michael’s visitation, and reverse and remand with instructions to award Michael standard visitation with E.M.S., to include Fridays.

If you’re looking to limit visitation, you’ve got to have evidence that amounts to concrete proof of harm to the child. That will often relate to abusive behavior, drug or alcohol abuse, or mental illness. It’s not enough to suggest that the child will suffer.

Also, if it is necessary to build a relationship, I suggest you ask the court to graduate the visitation schedule over a reasonable period, building toward full, standard visitation. If you will notice above, at ¶27, the court noted that Michael had gone through just that sort of familiarization period. In your case, give some thought to what would be reasonable and offer a proposed visitation schedule in writing through your client’s testimony. Your client should be prepared to testify in defense of the proposal, and why it is the way it is. In making a decision, the judge will decide how reasonably to graduate it, and the length of time required, which will depend on the facts of the case, but you should not expect it to be a lengthy, drawn-out process.

Judge Greenlee, joined by Irving and Carlton, wrote a spirited dissent arguing that the chancellor did not abuse his discretion and that the COA should not substitute its judgment for that of the chancellor.

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