December 18, 2019 § Leave a comment
It’s elementary that modification of custody requires substantial evidence of a material change in circumstances of the custodial parent’s home that is having an adverse effect on the child, and it is in the child’s best interest to change custody.
In the recent COA decision of Munday v. McLendon, handed down December 3, 2019, Judge Lawrence laid out the law of material change so succinctly that you might find it useful when you need a chunk of authority in a similar case:
¶27. A modification of custody is warranted when the moving parent successfully shows “(1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child.” Powell v. Powell, 976 So. 2d 358, 361 (¶11) (Miss. Ct. App. 2008) (citing Giannaris v. Giannaris, 960 So. 2d 462, 467-68 (¶10) (Miss. 2007)).
¶28. Totality of the circumstances can serve as a basis for a material change. See, e.g., Minter v. Minter, 29 So. 3d 840, 850 (¶37) (Miss. Ct. App. 2009). The chancellor must consider the totality of the circumstances when determining whether such a material change in circumstances has occurred. Creel v. Cornacchione, 831 So. 2d 1179, 1183 (¶15) (Miss. Ct. App. 2002). If, after examining the totality of the circumstances, a material change in circumstances in the custodial home is found to have occurred, the chancellor “must separately and affirmatively determine that this change is one which adversely affects the child[ ].” Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997) (citation omitted).
¶29. “Although Mississippi law generally has recognized that a parent’s relocation alone does not constitute a material change in circumstances, we note that the impact of a relocation of the custodial parent upon the child constitutes a factor that the chancellor permissibly considers on the motion for modification.” Robinson v. Brown, 58 So. 3d 38, 43 (¶13) (Miss. Ct. App. 2011) (citing Lambert v. Lambert, 872 So. 2d 679, 685 (¶24) (Miss. Ct. App. 2003)). This Court has found even a short move can result in a material change in circumstances where the move causes the custody agreement to become impractical. Id. at (¶14) (citing Pearson v. Pearson, 11 So. 3d 178, 182 (¶10) (Miss. Ct. App. 2009)).
Keep in mind that there is an exception to the requirement for showing an adverse effect. If the situation in the custodial parent’s home presents an immediate or strong likelihood of harm, the court can order a change of custody without a showing of adverse effect. In Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996), the court affirmed the chancellor who changed custody on proof that the custodial parent was doing drugs in the child’s presence, even though the child was excelling in school and showed no adverse effects. In Burrus v. Burrus, 962 So. 2d 618 (Miss. Ct. App. 2006), the court affirmed a chancellor’s change of custody of a teenage girl based on the custodial mother’s remarriage to a man who had been convicted of four counts of sexual assault on another 14-year old girl; there was no proof of any adverse effect of the marriage, and no evidence of impropriety by the new step-father.