The Application for joint Custody

October 9, 2018 § Leave a comment

Justin Brown and Kristin Anklum had a child together, but were never married. They got into a custody dispute that brought them before a chancellor. Both petitioned the court for custody.

After three days of trial, the judge awarded them joint physical and legal custody. Brown appealed, complaining that it was error for the court to award joint custody.

In Brown v. Anklum, decided July 24, 2018, the COA affirmed. Judge Westbrooks wrote for the majority:

¶11. Brown argues that the parties have to make an express “application” asking for joint custody in order for the chancellor to order joint custody. However, Brown does not cite any authority in favor of his argument outside of Mississippi Code Annotated section 93-5-24(2)-(3) (Rev. 2013). This code section states in part:

(2) Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.

(3) In other cases, joint custody may be awarded, in the discretion of the court, upon application of one or both parents.

¶12. This Court has held that the application of joint custody may be made by one or both parents if the arrangement is in the best interest of the child. See Crider v. Crider, 904 So. 2d 142, 148 (¶16) (Miss. 2005). As Anslum pointed out in her brief, in irreconcilable differences cases the court may award joint custody when the parties request the court to determine custody. The Mississippi Supreme Court has held that “when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of ‘joint application’ in § 93-5-24(2).” Id. at 148 (¶15). Thus, a mere request to determine custody satisfies the “application” requirement. Id.

¶13. Accordingly, we find this issue is meritless.

Not a lot to ponder here, but it is a reminder that joint custody is almost always in the picture when you are litigating custody.

I wonder whether the application of law would be different if both parties pled or stipulated that joint custody would not be in the child’s best interest. My guess: that would not rule out an award of joint custody if the chancellor found that to be in the child’s best interest.

Judge Carlton, joined by Tindell, disagreed with the majority that the chancellor’s findings in favor of joint custody were supported by the evidence. You might find some of her rationale useful if you find yourself on that side of a similar equation.

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