The Right to a Visitation Schedule
March 26, 2019 § Leave a comment
In the divorce between Tracy and Brent Williams, the chancellor granted custody of their 17-year-old son to Brent, and declined to set a visitation schedule. Tracy appealed, complaining that the chancellor was in error in not setting a specific schedule.
In Williams v. Williams, decided January 17, 2019, the MSSC affirmed. Justice Beam wrote for a unanimous court:
¶6. “The chancellor has broad discretion when determining appropriate visitation and the limitations thereon.” Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994) (citing White v. Thompson, 569 So. 2d 1181 (Miss. 1990)). “When the chancellor determines visitation, he must keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child.” Id. At the trial of this matter, the chancellor ruled,
Mom can have visitation with the child to be agreed upon between Mom and the child. The Dad is ordered not to interfere with the visitation, but, as I stated earlier, Mom’s actions and her continued actions and interference with this child have caused this alienation. It is not Dad’s fault, and so, I am not placing a burden – I’m not giving you a specific visitation schedule because I’m not placing a burden on Dad to make this child visit.
¶7. Tracy argues that the chancellor erred by allowing a child to set visitation at his discretion. While the chancellor acknowledged that her ruling on visitation was different from her normal practice, she found that Kendall’s desires and wishes should be taken into consideration. Trial revealed that Tracy had removed Kendall’s possessions, furniture, and rifle from the marital home, as well as his money jug containing $800. The court found that Kendall had viewed his mother’s actions as a personal affront. Tracy refused to provide Kendall the necessary documentation to complete driver’s education, to receive a passport so he could travel outside the United States with the USA baseball team, or to transfer from
Magnolia Heights School to a DeSoto County school for better baseball opportunities. The chancellor stated, “Quite honestly, I think she’s done some things that I think indicate that she’s much more interested in getting her own way than in thinking about what’s in the best interest of her child.”
¶8. Tracy correctly stated that this Court has made it clear that the objective of visitation is that “the non-custodial parent . . . and child should have as close and loving a relationship as possible, despite the fact that they may not live in the same house.” Dunn v. Dunn, 609
So. 2d 1277, 1286 (Miss. 1992) (citing Clark v. Myrick, 523 So. 2d 79, 83 (Miss. 1999)). However, this Court has also found that, while a non-custodial parent is presumptively entitled to visitation as stated in Griffin v. Griffin, that presumption can be overcome when “substantial evidence” justifies doing so. Griffin v. Griffin, 237 So. 3d 743, 747 (Miss. 2018) (quoting Cox v. Moulds, 490 So. 2d 866, 870 (Miss. 1986)). Cf. Newsom v. Newsom, 557 So. 2d 511, 517 (Miss. 1990) (emphasis removed) (holding “that the chancery court has the power to restrict visitation in circumstances which present an appreciable danger of hazard cognizable in our law”).
¶9. In Griffin, the chancellor denied a mother visitation with her four daughters because visitation was not in the children’s best interests. Griffin, 237 So. 3d at 745-46. The mother was incarcerated in the Washington County Correctional Facility in Greenville, Mississippi, four hours away from where the daughters lived. Id. In order to exercise visitation, the daughters would have to be searched and exposed to the prison environment. Id. The chancery court held that the presumption of visitation had been overcome. Id. at 746. “The chancellor considered Nolana’s circumstances and deemed phone visitation, for now, and possible future in-person visitation at Chad’s discretion was the best possible balance
between recognizing Nolana’s constitutionally protected rights, encouraging the parent-child relationships, and protecting the girls’ best interest.” Id. at 749 (citing Harrington, 648 So. 2d at 545). On appeal, this Court affirmed the chancellor’s ruling.
¶10. Although the facts of this case differ, the principle that a presumption of visitation can be overcome with sufficient evidence remains the same. Kendall is eighteen years old and is living in Florida to pursue his baseball career. Although the chancellor had only become aware of Kendall’s new schooling in Florida just before her ruling, the knowledge did not change her mind about visitation. She stated,
And there is a huge big rift to heal. And I know forcing him to come to your house every other weekend – which you can’t do because he’s living in Florida, anyway – is not going to fix that situation. And I want y’all to figure out some way – you know, as I said, maybe this time and distance will help fix it.
¶11. Based on the facts presented at trial, this Court finds that the chancellor did not err in declining to set a visitation schedule under these unique circumstances. Given the broad deference afforded chancellors in visitation matters, we affirm the chancellor’s ruling. Tracy and Brent can travel to Florida any time to support and to visit Kendall while he pursues his baseball dreams.
You can take away that the default setting is for there to be a visitation schedule that defines the terms of visitation. You can overcome that if you put on enough proof that a visitation schedule would not be in the child’s best interest.
A post on the Griffin case can be found at this link.
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