Parental Actions Against the Best Interest of the Child and Remand

November 21, 2017 § Leave a comment

In Darnell v. Darnell, 167 So.3d 195, 198 (Miss. 2014) (Darnell I), the MSSC remanded the case to the chancellor with directions to consider two statements of a minor child that he had excluded in the trial.

The chancellor had awarded the father, Duff Darnell, custody of the child based largely on conduct of the mother, Carla Darnell. After remand, the judge addressed the statements of the child and made a detailed Albright analysis, after which he again awarded custody to Duff. Carla appealed, and the MSSC affirmed in Darnell v. Darnell, decided October 26, 2017.

The court’s opinion addresses two important issues: parental misconduct toward the other parent; and what the judge is required to consider on remand.

On parental misconduct, the chancellor spelled out what he found to be Carla’s misconduct:

… the actions of the mother, Carla Darnell, taking visitation away from the father, filing charges with the military against the father, accusing the father of being a child molester, and disparaging the father in the small community where the family resided, coupled with her telling the child that the child should tell everybody that he wants to stay with her and not the father adversely impacts the minor child. Darnell II, at ¶7.

The MSSC, in a unanimous opinion by Justice Randolph, rejected Carla’s argument that the chancellor had failed to consider the child’s statements in making his findings:

¶7. That argument is without merit, for the chancellor entered a detailed, twenty-nine page amended final judgment. He addressed the statements made by C.D. to his teacher, Dana Walker, and principal, Machelle Dyess, and Dyess’s testimony regarding those statements. He also considered those statements in conjunction with Dr. Scott Benton’s testimony. He found that no witness who had knowledge of C.D. making the two specific statements testified that C.D. actually had been abused. No evidence was presented that any sexual abuse occurred. The chancellor stated in his order that he considered the three reports of the GAL, the exhibits, and testimony of the parties and witnesses at trial. He found [the conduct set out above].

¶8. Based on the record, the chancellor considered the statements and found that those statements did not change the outcome of his award of custody to Duff. “[T]he chancellor is the finder of fact, and the assessment of witness credibility lies within his sole province.” Carambat v. Carambat, 72 So. 3d 505, 510 (Miss. 2011). The chancellor’s findings are supported by substantial evidence; thus he did not manifestly err in that regard.

The takeaway here on this issue is twofold:

(1)  The kind of conduct found by the chancellor is a combination lethal to your client’s claim for custody. You should not come to court with a similar set of facts in the expectation that the judge will not see your client in an unfavorable light.

(2)  The chancellor is the finder of fact and assessor of credibility, and, if there is substantial evidence in the record to support his or her findings, those findings will stand on appeal.

As for how the chancellor handled the remand, the record shows that he simply revised his original findings, addressing the excluded evidence as the MSSC directed him to do. No hearing was held, and no further evidence was taken. Carla argued on appeal that by not holding a new hearing the chancellor had erred by failing to take into account the new developments and facts pertaining to custody at the time of the remand. The MSSC rejected Carla’s claim:

¶12. On remand, this Court specifically instructed the chancellor to make:

new findings of fact and conclusions of law in which the first two statements made by C.D. to Dyess and Walker are considered as admissible evidence. Because of the additional evidence, the chancellor also should conduct a new Albright analysis showing the reasons for his ruling, and it would be helpful if he specifically stated why he disagreed with the guardian ad litem’s recommendations.

Id. at 210. This Court did not instruct the chancellor to hold a new hearing, change his findings and conclusions, or consider new evidence of C.D.’s current condition.

¶13. Carla, citing Vaughn v. Davis, 36 So. 3d 1261 (Miss. 2010), argues that the general rule for remanded child custody cases requires a chancellor to consider the child’s circumstances at the time of remand, rather than at the time of the previous hearing. However, this Court has never made such a pronouncement. This Court specifically instructed the chancellor in Vaughn to consider the minor’s present circumstances, if the chancellor made a determination of desertion. Id. at 1267. No such instruction was given to today’s chancellor. This issue is without merit.

In other words, the remanding opinion of the appellate court is the law of the case from that point forward. The chancellor is obligated to do only what the appellate court directs him or her to do. In this case, the chancellor simply took the two statements into account in his amended findings of fact and conclusions of law. No further hearing; no new evidence. The Darnell I remand had not directed the chancellor to conduct an new hearing or to consider evidence arising after the initial trial date.

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.


  • 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.

Joint Custody Outside of Divorce

November 14, 2017 § Leave a comment

We all know that the chancellor may award joint physical custody in an irreconcilable-differences divorce, but what about when the natural parents have never been married to each other and they are before the court in a custody dispute? May the chancellor award joint custody?

That was one of the issues before the COA in the case of Roberts v. Eads, handed down October 10, 2017. In that case, Lauren Roberts sued Tyler Eads for custody and support of their son, Thomas. Tyler counterclaimed for custody, sole or joint. The chancellor granted them joint physical and legal custody, and Lauren appealed. The COA affirmed. Judge Carlton wrote for a unanimous court:

¶22. In addition to challenging the chancellor’s application of the Albright factors, Lauren claims that the chancellor’s award of joint physical custody violates Easley v. Easley, 91 So. 3d 639 (Miss. Ct. App. 2012), and Mississippi Code Annotated section 93-5-24(2) (Rev. 2013).

¶23. In Easley, the chancellor granted the parties an irreconcilable-differences divorce. Easley, 91 So. 3d at 640 (¶1). Section 93-5-24(2) provides that joint custody may be awarded in an irreconcilable-differences divorce “in the discretion of the court, upon application of both parents.” Following a trial in Easley, “the chancellor determined that joint physical custody was in the children’s best interest, but he erroneously concluded that the statute did not allow it to be awarded unless both parties expressly presented joint custody for consideration.” Easley, 91 So. 3d at 640 (¶1). The chancellor therefore awarded sole custody of the parties’ children to the father while granting the mother visitation. Id. On appeal, this Court concluded that, “after finding joint custody to be in the children’s best interest, the chancellor’s award of custody to one parent was an error of law.” Id. at (¶2). We therefore reversed the chancellor’s judgment and remanded the case so the chancellor could apply the proper legal standard. Id.

¶24. Upon review of the present case, we find no merit to Lauren’s claim that the chancellor’s award of joint physical custody violated either section 93-5-24(2) or our holding in Easley. As stated, section 93-5-24(2) provides a chancellor with the discretion to grant joint custody in an irreconcilable-differences divorce. However, the present case involves no such divorce since the parties were never married. We further note that section 93-5-24(3) provides a chancellor with the discretion to award joint custody “[i]n other cases . . . upon application of one or both parents.” As the record here reflects, in responding to Lauren’s custody petition, Tyler requested sole custody or, in the alternative, joint custody.  Furthermore, after considering the Albright factors, the chancellor determined that joint legal and physical custody served Thomas’s best interest. [Fn omitted] As Easley recognized, a chancellor may grant joint custody, even where both parties do not present the issue, if such an arrangement
is in the child’s best interest. See Easley, 91 So. 3d at 640 (¶1). We therefore find no merit to Lauren’s assertion that the chancellor’s judgment violated Mississippi statutory law and caselaw.

¶25. The chancellor’s judgment is affirmed.

That’s something you might be able to put to good use.

The Right to Confrontation

November 6, 2017 § Leave a comment

I posted here previously about the case of Miller v. Smith, in which the COA had ruled that there was no error when the chancellor excluded the parents from the courtroom during a child’s testimony in a child-custody case. Here is a link to my post.

The MSSC reversed the COA in the latest version of Miller v. Smith, decided October 26, 2017. Here is what Chief Justice Waller wrote for the court on the point:

¶19. The issue regarding Miller’s removal from the courtroom during the testimony of Kristen had relevance only while an issue existed concerning the custody of Morgan. A subsequent custody ruling of the trial court has granted custody of Morgan to Miller. We address the issue, though, because of conflicts in our caselaw as discussed below. See Alford v. Miss. Div. of Medicaid, 30 So. 3d 1212, 1214 (¶ 8) (Miss. 2010) (issue not moot if question concerns a matter “detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct.”) (citation omitted).

The Confrontation Clause of the Sixth Amendment

¶20. Miller argues the Confrontation Clause of the Sixth Amendment applies in this case, even though it is a civil case. By its own language, the Confrontation Clause extends only to criminal cases. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against him . . . .”) (emphasis added); Hannah v. Larche, 363 U.S. 420, 440, 80 S. Ct. 1502, 1513, 4 L. Ed. 2d 1307 n.16 (1960) (“[The Sixth] Amendment is specifically limited to ‘criminal prosecutions’ . . . .”). As the Court of Appeals correctly observed, “The Confrontation Clause only applies to criminal cases. . . . So [Miller’s] first argument fails.” Miller [v. Smith], 2016 WL 6876509, at *3 (¶ 17) [(Miss. Ct. App. Nov. 22, 2016)].

¶21. According to Miller, the Court of Appeals’ decision is contrary to this Court’s precedent. To support his argument, Miller relies on In Interest of C.B., where we held “[t]his is not a criminal case, but we are of the opinion that the right of confrontation should be accorded to an accused parent in” youth-court cases. In Interest of C.B., 574 So. 2d 1369, 1374 (Miss. 1990). [Fn omitted] In a recent concurrence, though, Justice Beam wrote that our statement in In Interest of C.B. “was nonauthoritative dicta.” In re J.T., 188 So. 3d 1192, 1205 (¶ 71) (Miss. 2016) (Beam, J., concurring in part and result).

¶22. This Court cannot ignore the plain language of the Sixth Amendment, which limits its own application to “criminal prosecutions.” To the extent we held in the case of In Interest of C.B., 574 So. 2d at 1374, that the Sixth Amendment applies in civil proceedings, today we overrule it.

Article 3, Section 25 of the Mississippi Constitution

¶23. Miller argues his removal from the courtroom violated Article 3, Section 25 of the Mississippi Constitution. “No person shall be debarred from prosecuting or defending any civil cause for or against him or herself . . . by him or herself, or counsel, or both.” Miss. Const., art. 3, § 25. The Court of Appeals rejected Miller’s argument, finding no violation “[b]ecause [Miller’s] counsel was present during Kristen’s testimony . . . .” Miller, 2016 WL 6876509, at *4. However, the provision prohibits debarment of the individual “by him or herself.” Miss. Const. art. 3, § 25. The presence of Miller’s counsel did not cure the error that Miller, individually, was removed from the courtroom. As a result, a violation of Article 3, Section 25 occurred.

Harmless-Error Analysis

¶24. While the removal of Miller was error, the issue may be reviewed under harmless error analysis. Smith v. State, 986 So. 2d 290, 300 (¶ 30) (Miss. 2008); see also United States v. Pryor, 483 F.3d 309, 312 (5th Cir. 2007).

¶25. First and foremost, while Miller was absent, his attorney was present during the entire questioning. And Miller fails to explain how the examination would have changed had he been present alongside his attorney. See Jones v. State, 912 So. 2d 973, 977 (¶ 16) (Miss. 2005) (“Assertions of error without prejudice do not trigger reversal.”).

¶26. While a Sixth Amendment case, the decision in Rollins v. State is instructive on the issue of removing a defendant from the courtroom. Rollins v. State, 970 So. 2d 716 (Miss. 2007). In Rollins, the grand jury returned a multicount indictment charging the defendant with crimes related to sexual battery of children. Id. at 717 (¶ 2). The trial court allowed the children to testify through closed-circuit television. Id. at 717 (¶ 3). The defendant was removed from the courtroom to watch the television screen alone. Id. at 719 (¶ 5). However, technical difficulties arose, and the defendant was unable to view the witnesses on the screen. Id. at 721 (¶ 11). Because of the inability to see the witnesses and view their demeanor, the defendant raised confrontation issues, claiming a violation of his right required reversal. Id. at 722 (¶ 13). However, this Court held, “in order to receive a new trial, [the defendant] must show the denial of his right to view the demeanor of the minor witnesses prejudiced him.” Id. The Court continued: “[S]ince [the defendant] does not argue that he was prejudiced or demonstrate how he was prejudiced, this argument is without merit.” Id.

¶27. This Court finds that the same reasoning in the Sixth Amendment cases of Jones and Rollins should apply to Miller’s objections under Article 3, Section 25 of the Mississippi Constitution. Smith [sic] must show how he was prejudiced by the procedure used by the trial court. See Goins v. State, 155 Miss. 662, 124 So. 785, 786 (1929) (holding a constitutional error “did not require a reversal, because it did not result in any injury to the defendant . . . .”).

¶28. The trial court should have provided a mechanism, such as closed-circuit TV, for Miller to observe witness testimony when he was removed from the courtroom. However, as the U.S. Supreme Court has held, “most constitutional errors can be harmless.” Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263, 113 L. Ed. 2d 302
(1991)). We hold that, due to the lack of prejudice to Miller, Miller’s erroneous removal was harmless.

So, Article 3, Section 25 of the Mississippi Constitution requires that the parents, in cases such as this, be provided with means such as closed-circuit tv to observe the testimony of the child(ren) if the court decides that it is not in the child’s best interest for the parents to be present during the testimony. I imagine the 21st century equivalents FaceTime and Skype would suffice.

If your client is excluded over your objection, be prepared to explain how it prejudiced your client.

An Extremely Useful UCCJEA Tool

October 31, 2017 § Leave a comment

Figuring out which state has jurisdiction in a UCCJEA case can be baffelizing, confuserating, miserizing, and flusterating.

To the rescue comes Attorney David A. Blumberg, who has devised a set of brilliant flow-charts that help analyze the law and apply it to your case. You can access them at this link. The charts include an intro that will send you to the chart applicable to your case. Charts include: initial orders; modification; enforcement; and decline jurisdiction. You can print the charts on a color printer.

I have played with them, and each appears quite accurate under Mississippi’s UCCJEA. Before you invest too much in them, however, I urge you to vet them for yourself.

Mr. Blumberg is a Wisconsin attorney who specializes in child custody jurisdiction and enforcement cases. His website includes resource material about the UCCJEA that you might find useful.


Thanks to Attorney William Wright, who introduced this to the chancery judges at our Fall Conference

Using the Natural Parent Presumption in a Parent vs. Parent Contest

October 16, 2017 § Leave a comment

After Erica Moore gave birth to a daughter, LM, in 2009, she did not list the father, Patrick Bradshaw on the birth certificate, and she did not tell Patrick about the birth of the child. Erica and Patrick were never married.

Patrick learned of the baby in April, 2010, in a telephone conversation with Erica. He saw the child in person on only two occasions afterward.

In 2011, DHS filed a paternity action against Patrick, who consented to a DNA test, but the test was never conducted due to an error by DHS. The case stalled.

In the meantime, in 2014, Erica found herself in financial straits and agreed to give custody of LM to her parents, the Santuccis. The custody petition listed the father as “unknown.” The court entered an order awarding the Santuccis custody.

In September, 2014, the DNA test was finally conducted, and Patrick filed suit for custody against Erica. The chancellor set aside the Santucci custody order. The Santuccis and Erica jointly answered the complaint with a denial. Patrick counterclaimed against the Santuccis.

At trial the Santuccis withdrew their claim for custody. The chancellor ordered that Erica replace them against Patrick. The chancellor awarded custody to Erica, and Patrick appealed. His two main contentions on appeal were that Erica should not be awarded custody because she did not petition the court for custody, and that Erica had lost the natural parent presumption when she gave up custody to the Santuccis.

In Bradshaw v. Moore, handed down June 13, 2017, the COA affirmed, with a majority opinion by Judge Lee.

The court rejected Patrick’s argument that it was error for the chancellor to award custody to Erica with no pleading filed by her. The court pointed out that this was a R81(d) action, in which Erica was not required to file a pleading, and that it was Patrick himself who had brought Erica into the suit. The court also pointed out that the chancellor had replaced the Santuccis in the suit with Erica and rejected Patrick’s claim of surprise.

On the issue of the natural parent presumption, Judge Lee wrote:

¶11. Patrick also argues that the chancellor erred in awarding Erica sole custody of L.M. because Erica waived her natural-parent presumption when she consented to the Santuccis’ petition for custody of L.M. Patrick argues that, as a result, Erica’s claim for custody of L.M. was inferior to his.

¶12. For support, Patrick cites to Grant v. Martin, 757 So. 2d 264, 266 (¶10) (Miss. 2000), in which the Mississippi Supreme Court held that “a natural parent who voluntarily relinquishes custody of a minor child . . . has forfeited the right to rely on the existing natural[-]parent presumption.” However, the holding in Grant is not applicable to the instant case. Grant discusses a natural parent who relinquished custody to a third party, then later attempted to reclaim the natural-parent presumption against that third party. The natural parent presumption is a doctrine that “precludes a court from granting custody to a ‘third party’ over the objection of a natural parent absent clear and convincing evidence that the
natural parent has abandoned or deserted the child, has engaged in immoral conduct harmful to the child, or is an unfit parent.” Welton v. Westmoreland, 180 So. 3d 738, 744 (¶21) (Miss. Ct. App. 2015).

¶13. Here, the issue is an initial custody determination between two natural parents—not between a natural parent and a third party. Furthermore, the order granting custody to the Santuccis, which Patrick claims constituted a voluntarily relinquishment of parental rights akin to the facts in Grant, was set aside for lack of notice to Patrick. Thus, the chancellor correctly found that Grant was not applicable, and Erica has not—as Patrick contends—forfeited any natural-parent presumption. The presumption simply does not apply in this case.

¶14. Ultimately, the foremost consideration in child-custody cases is the best interest and welfare of the child. Lacoste v. Lacoste, 197 So. 3d 897, 902 (¶9) (Miss. Ct. App. 2016). The chancellor determined that L.M.’s best interests would be served by awarding Erica custody. The record shows that the chancellor’s findings were supported by substantial credible evidence. Accordingly, the chancellor did not err in awarding custody to Erica.

Very interesting distinction, and important to grasp: the natural parent presumption simply does not apply in a contest for custody between the natural parents. It only applies as between a natural parent and a third party.

It’s hard to conjure up a situation other than this rather unusual one in which a similar argument could be made. If the Santuccis had refused to get out of the case, Grant v. Martin would certainly have come into play as between the Santuccis and Erica, and Patrick could have exploited the situation to his benefit. But when they withdrew and the previous order had been set aside, the chancellor was left with a straightforward parent vs. parent dispute. And the natural parent presumption became irrelevant.

Some Notes on Dennis

August 29, 2017 § 1 Comment

Yesterday we visited the case of Dennis v. Dennis, in which the MSSC upheld the self-imposed obligation of a step-great-grandfather to pay child support for a 12-year-old child who refused to have a relationship with him.

A few observations:

  • Even if Dennis made a severe error in judgment by agreeing to pay child support on the mistaken belief that he was required to do so, that will not get him termination of his child support obligation. The court can modify only upon a showing of a material change in circumstances.
  • Parties are free to agree to all sorts of things in a PSA that a court could not impose on them in a contested framework. For instance, the husband could agree to provide college support until the child attains age 25; no judge could order that outside the parties’ agreement. A party could agree to provide health insurance for step-children to a certain age; again, something no chancellor could unilaterally order. Here, Dennis agreed to support JRH, legal obligation or none. That agreement is enforceable under this case and long-standing authority.
  • The dissent argues that the chancellor may only approve agreements for support of the children of the parties, per MCA 93-5-23 (and 93-5-2). The majority looked to the Mississippi Constitution as the source of the chancellor’s authority. Taking either route, however, I think the fact that Dennis voluntarily took on custody of JRH vested him with responsibilities under the law that could have and should have been addressed in the divorce. Dennis should not be allowed to extinguish his obligations to the child via divorce.
  • To tag onto the above, although the statutes refer to the children of the marriage, there is nothing in the statutes that prohibits the parties from agreeing to support other children, or even other adults. The cases that have analyzed the parties’ negotiations and agreement-making in the context of irreconcilable-differences divorces (including this one) all resonate with the theme that the parties should be free to make any agreement that makes adequate and sufficient provision for settlement of property and support of children. I argue that the wider the latitude given the parties to negotiate the lesser the likelihood that the familiar and all-too-common “divorce blackmail” phenomenon can be brought to bear.
  • The fact that the natural parents continue to have a support obligation to JRH, and continue to visit, also avail Dennis nothing. He agreed to the arrangement, self-imposing a support duty parallel to the parents’.
  • And Dennis’s agreement to much more, probably, than what the judge would have imposed on him in the custody matter were it contested makes him a poster child for litigants like him who eschew legal advice for expediency. Sans fraud that can’t be undone.
  • As for the hostility of JRH, this case is right in line with the many cases that have dealt with the phenomenon. The facts must be extreme and the parent seeking to invoke it must not be at fault. To those parameters you can add, thanks to Dennis, that the age and maturity of the child must be taken into account.

The Duty to Pay Child Support for a Step-Great-Grandchild

August 28, 2017 § 1 Comment

Thomas Dennis (Dennis) and Sheila Sims (Sims) married in 1994. Sheila had a daughter before the marriage, Renee Wright. Renee had a daughter, Courtney. Courtney had a child, JRH. Thus, JRH is the step-great-granddaughter of Thomas.

In 2005, DHS became involved when JRH’s parents got into legal trouble. In order to keep JRH out of “the system,” Dennis and Sims filed a petition for custody in chancery court. All parties agreed for the Dennis and Sims to have custody, with the parents having visitation rights, and the parents agreed to pay modest child support. The chancellor approved the agreement in March, 2006.

Six months later, Dennis and Sims separated. In 2008, Sims filed for divorce, and on June 23, 2009, the court granted a divorce on the ground of irreconcilable differences. The PSA incorporated into the divorce judgment provided that Sims would have sole custody of JRH, and that Dennis would pay her $400 a month in child support. The agreement recited that child support was to continue until:

” … (1) the minor child marries; (2) the minor child enlists in any branch of the armed services; (3) the minor child is no longer attending school on a full-time basis prior to the age of twenty-one years; (4) the minor child reaches the age of twenty-one years; or (5) at any time that a court of competent jurisdiction shall change, alter, modify, or terminate this obligation.”

Over time following the divorce, JRH and Dennis became estranged to the point that JRH refused to have anything to do with Dennis. Sims refused to make JRH have any contact with him.

In 2015, Dennis filed a petition to modify the custody and support agreement, asking to relinquish custodial rights to JRH and to terminate child support. He pled that he (a) “wrongfully believed” in the divorce that he had some legal duty to pay child support, (b) that he had never developed any genuine relationship with the child, (c) that the child refused to have a relationship with him, and (d) that the natural parents still exercised visitation and had a child support obligation for the child.

After a hearing, the chancellor denied Dennis any relief. He ruled that there had been no material change in circumstances, and that JRH at only 12 years of age had no appreciation of the legal significance of the refusal to have a relationship. Dennis appealed.

In Dennis v. Dennis, decided August 3, 2017, the MSSC affirmed. In its opinion, the majority acknowledged that a person acting in loco parentis is not obligated to support a child once the relationship has ceased, in the absence of consanguinity, legal adoption, or the knowing and voluntary assumption of the obligation. Williams v. Williams, 843 So.2d 720, 723 (Miss. 2003). The court’s opi nion, written by Justice Chamberlin, went on to distinguish Dennis’s situation:

¶14. The analysis, however, does not end here under the facts of this case. Here, Dennis agreed to provide child support for J.R.H. in the Child Custody and Support and Property Settlement Agreement incorporated into his irreconcilable-differences divorce decree. Therefore, the issue is not whether Dennis has a statutory duty to pay child support, but rather whether he has a quasicontractual obligation to do so. “We do not hold that a man who is not a child’s biological father can be absolved of his support obligations in all cases. Those who have adopted the child or voluntarily and knowingly assumed the obligation of support will be required to continue doing so.” [Williams, supra]. at n.1 (citing NPA, 380 S.E.2d at 181) (emphasis added).

¶15. In Mississippi, one of the steps parties must take to obtain an irreconcilable differences divorce is to enter into a written settlement agreement that provides “for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties.” Miss. Code Ann. § 93-5-2(2) (Rev. 2013). The parties may provide the chancellor with such an agreement or, if the parties cannot agree as to certain issues, consent in writing to the divorce and allow the chancellor to decide the contested issues. See id.; see also Miss. Code Ann. § 93-5-2(3) (Rev. 2013). The chancellor then determines whether the terms of the agreement “are adequate and sufficient.” Id. In
West v. West, this Court emphasized that these “[S]ettlement agreements entered into by divorcing spouses and judicially approved under our Irreconcilable Differences Divorce Act become a part of the decree and enforceable as such as though entered by the court following contested proceedings.” When the Irreconcilable Differences Divorce Act has been complied with, the custody, support, alimony, and property settlement
agreement becomes a part of the final decree for all intents and purposes. If the agreement is sufficient to comply with the statute, that is enough to render it a part of the final decree of divorce as if the decree had been rendered by the chancery court following a contested divorce proceeding.
“[P]roperty settlement agreements are contractual obligations.” The provisions of a property settlement agreement executed prior to the dissolution of marriage must be interpreted by courts as any other contract. In East v. East, 493 So. 2d 927, 931–32 (Miss. 1986), we held “[a] true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” West v. West, 891 So. 2d 203, 210 (Miss. 2004) (internal citations omitted).

¶16. This case is, to an extent, similar to Lee v. Lee, 12 So. 3d 548 (Miss. Ct. App. 2009). In that case, the Lees were married in 1994. Lee, 12 So. 3d at 549. During their marriage, the wife gave birth to two children. Id. In 2004, the husband “had a home DNA test performed to determine whether he was [the second child’s] biological father.” Id. The test showed a zero percent chance that he had fathered the second child. Id. The next year, however, the Lees swore that both children were born to the marriage in their joint bill for divorce and the husband agreed to pay child support for both children in the child-custody and settlement agreement. Id. Two years after the divorce was granted, the husband petitioned the chancellor “to reverse the determination that he is [the second child’s] biological father and release him of all parental responsibilities, including child support, as to [the second child].” Id. The chancellor denied the husband’s request. Id.

¶17. The Court of Appeals unanimously affirmed the decision of the chancellor. Id. at 552. The court reasoned that the husband “knew a year before the judgment of divorce was entered that [the second child] was not his child. Despite this knowledge, he voluntarily agreed to support [the second child] and to exercise parental visitation with her.” Id. at 551 (emphasis added). The Court of Appeals distinguished Lee from Williams, where this Court allowed a man to discontinue his child-support payments when he determined, after his divorce, that he was paying support for someone who was not his child. Williams, So. 2d at 721, 723.

¶18. As in Lee, the evidence shows that Dennis knowingly and voluntarily agreed to pay child support for J.R.H. even though he knew he was not the child’s father. [Fn omitted] Though Dennis claims he wrongfully believed he had a duty to support J.R.H., the Agreement states that “Husband and Wife each fully understand the terms and conditions of this Agreement and believe it to be just, fair, adequate, and reasonable . . . .” Under the section titled “VOLUNTARY EXECUTION,” the Agreement states that “[e]ach party acknowledges that he or she has read this Agreement in its entirety, understands its terms, consents to its terms, and enters into this Agreement voluntarily of the uses and purposes therein stated.”

¶19. As mentioned above, these child-custody and property-settlement agreements are quasicontracts in which both spouses consent to certain terms in order to obtain an irreconcilable-differences divorce. Thus, we find that a bargained-for exchange occurred whereby Dennis got something in return for paying child support: a divorce. Even more, this Court has stated:

In property and financial matters between the divorcing spouses themselves, there is no question that, absent fraud or overreaching, the parties should be allowed broad latitude. When the parties have reached agreement and the chancery court has approved it, we ought enforce it and take as dim a view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts.

Bell v. Bell, 572 So. 2d 841, 844 (Miss. 1990) (emphasis added) (citations ommitted [sic]).

¶20. Under the facts of this case, we find that Dennis voluntarily agreed to pay child support for J.R.H. We disagree with the dissent that a chancellor does not have the authority to accept a settlement agreement that governs child-support payments for a child not of the marriage. A chancellor’s power to accept such an agreement is granted by Section 159 of the Constitution. Miss. Const. art. 6, § 159. While a chancellor’s power is codified by statute, we consistently have held that a chancellor has broad discretion over child-support agreements. Short v. Short, 131 So. 3d 1149, 1151 (Miss. 2014). Further, a chancellor’s discretion extends to matters that are not codified. See Logan v. Logan, 730 So. 2d 1124, 1126 (Miss. 1998) (recognizing the doctrine of in loco parentis within the child-custody context).

That takes care of the argument that Dennis had no legal obligation to the child, and thuse should be relieved. What about his argument that the original agreement should be modified to terminate support due to the child’s refusal to have a relationship? Here’s how the court addressed it:

¶21. Notwithstanding their contractual nature, child-support and property-settlement agreements may be modified when there is an after-arising material or substantial change in the circumstances among the parties. See Shipley v. Ferguson, 638 So. 2d 1295, 1298 (Miss. 1994). Dennis next argues that J.R.H.’s refusal to see or speak to him constitutes clear and extreme conduct that entitles him to terminate his support obligations. We disagree.

¶22. In Caldwell v. Caldwell, 579 So. 2d 543, 548 (Miss. 1991), this Court stated that “[t]he amount of money that the noncustodial parent is required to pay for the support of his minor children should not be determined by the amount of love the children show toward that parent.” Later in that opinion, however, this Court recognized that a material change in circumstances could arise from a minor child’s actions toward a noncustodial parent which would allow the parent to terminate his or her support obligations. Id. “[A] minor child as young as fifteen years old could forfeit his support from the noncustodial parent through his actions toward that parent, but those actions must be clear and extreme.” Marshall , 859 So.2d at 389-90 (citing Caldwell, 579 So. 2d at 548) (emphasis added).

¶23. In Roberts v. Brown, an eighteen-year-old daughter testified “that she did not love [her father], that she did not want to visit or communicate with him, that she had had time to visit him but chose not to, and that if the court ordered her to visit her father, she would not do so.” Roberts v. Brown, 805 So. 2d 649, 650 (Miss. Ct. App. 2002). Even more, the daughter previously had accused her father of rape, a charge of which the father was later acquitted. Id. at 650-51. The Court of Appeals found that the conduct of the daughter was clear and extreme conduct that justified the termination of the father’s support obligations. Id. at 653-54.

¶24. We hold that J.R.H.’s current refusal to see or speak to Dennis is not the type of clear and extreme conduct envisioned in Caldwell or shown in Roberts, especially in light of the child’s age and Dennis’s alleged statement. Though it is undisputed that J.R.H. currently is unwilling to have a relationship with Dennis, Sims testified that Dennis told J.R.H. that he was happy that the child’s grandmother had died. The chancellor also noted that J.R.H. was only twelve years old when this case was in the chancery court; therefore, J.R.H. would have been even younger when this alleged statement was made. If Dennis indeed made these statements, it would be unjust for him now to take advantage of such fact. At this time, the record does not indicate that the chancellor manifestly erred in his Caldwell analysis. [Fn omitted]

A few observations tomorrow.

Comments on Bankruptcy and Equitable Distribution

August 8, 2017 § 3 Comments

Yesterday I posted about the Powell bankruptcy case and how it addressed the handling of equitable distribution in divorce when there is a pending bankruptcy proceeding. As promised, here are my thoughts:

  • I have heard it said that Powell is a big change fraught with implications for family law practitioners, but I don’t see that. The language cited from Professor Bell clearly states what the law has been. Powell does not change that.
  • Some may have misinterpreted the federal domestic relations exception barring federal courts from exercising jurisdiction over divorce to mean that all matters incidental to a divorce are included. The US Supreme Court, however, has made it clear that it is the granting of the divorce itself that is barred. Any matters pertaining to the property of the bankruptcy debtor are subject to bankruptcy jurisdiction.
  • The only way that a chancellor may proceed in divorce after bankruptcy is filed is for you to lift the automatic stay. You have to petition the bankruptcy court to remand all of the issues, as Jessica Powell did, even knowing that some will not be remanded.
  • Only problem is, per Heigle, cited in the Powell opinion, our supreme court has made it clear that the chancery court should stay all proceedings before it until the bankruptcy is concluded.
  • Even without Heigle to stop you from going forward, it’s obvious that if the bankruptcy estate is taken away, equitable distribution is impossible. If equitable distribution is impossible, alimony is impossible, since you can’t get to alimony without going through equitable distribution. If most of the assets are in the bankruptcy estate, that may well limit or even eliminate child support.
  • As I mentioned yesterday, I am no bankruptcy expert, but it appears that if you represent the other spouse (not the debtor), you had better file a claim for him or her in bankruptcy court right away to protect that client’s rights. You need to ask a bankruptcy expert about this.

Guardian ad Litem Hearsay

August 2, 2017 § 2 Comments

Too many lawyers in contested custody cases with a GAL relax when the GAL report is in their favor, choosing to put all (or most) of their eggs in the basket of the GAL report, and then resting. A recent case shows how and why that can be a big mistake.

In Ballard v. Ballard, decided May 25, 2017, the MSSC reversed the chancellor’s award of Candice Ballard’s children’s custody to their paternal grandparents, based on a finding that both she and the natural father were unfit. Justice Coleman’s opinion spells it out:

 ¶15. Candice takes issue with the chancellor’s disposition of custody due to the chancellor’s reliance upon hearsay. Specifically, Candice argues the chancery court relied upon the guardian ad litem’s reports–which consisted mostly of hearsay–and the guardian ad litem’s testimony–which was based in hearsay–as substantive evidence to establish her unfitness and trigger the family-violence presumption. To the extent that the chancellor relied on the hearsay contained in the guardian ad litem’s report, we agree.

¶16. First, the Court notes the chancery court’s failure to provide an Albright analysis. Parents enjoy–against third parties–a natural-parent presumption favoring an award of custody. In re Waites, 152 So. 3d 306, 311 (¶ 14) (Miss. 2014). Only a clear showing of abandonment, desertion, immoral conduct detrimental to the child, and/or unfitness can rebut the presumption. Id. at 311-12 (¶ 15). However, the inquiry does not end once the presumption is rebutted. In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 431 (¶ 24) (Miss. 2009). “If the court finds one of [the] factors [that rebuts the natural parent presumption] has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interests of the child through an on-the-record analysis of the Albright factors. Id. (emphasis added). In other words, a finding that the natural-parent presumption has been rebutted does not end the inquiry into custody without an Albright analysis. If, on remand, the chancery court finds that the natural-parent presumption has been rebutted, then the chancery court must go on to consider the Albright factors to determine custody in the best interest of the children. We note that, even if, upon
remand, the chancellor finds enough competent evidence to engage the family-violence presumption, the presumption is a rebuttable one. Miss. Code Ann. § 93-5-24(9)(a)(I) (Rev. 2013).

¶17. In any event, the chancery court erred in finding Candice to be unfit and applying the family-violence presumption. Candice argues the only “proof” presented at trial to establish her unfitness was inadmissible hearsay from the guardian ad litem. Similarly, Candice argues the chancery court relied on inadmissible hearsay to apply the family-violence presumption against her.

¶18. Candice is correct that the chancery court relied heavily on hearsay testimony in determining that she was unfit and that the family-violence presumption should be triggered. The chancery court’s analysis determining Candice’s unfitness focused primarily on the guardian ad litem’s report and testimony and on Candice’s evasive answers to questions at trial that indicated a “wariness to convey the truth.” The chancery court concluded: “Based on the evidence as stated above, i[.]e., [Candice] failing to take responsibility for her actions or lack thereof, and continuing to blame others for her mistakes, the [chancery c]ourt finds by clear and convincing evidence that her natural parent presumption has been rebutted due to her unfitness.” [Fn omitted] Additionally, in our review of the record, we could discern only one piece of nonhearsay testimony that indicated Candice had committed any act of family violence: when Marshall testified that Candice had beaten him with a lamp. Other evidence suggesting Candice had inflicted violence on Marshall came almost entirely from the guardian ad litem’s reports and the guardian ad litem’s testimony at trial, all of which consisted of the guardian ad litem’s third-party interviews. None of the persons interviewed by the guardian ad litem testified at trial except the parties and one of Candice’s daughters from a previous relationship. Despite a recommendation from the guardian ad litem in her supplemental report that the chancery court should not apply the family-violence presumption, the chancellor relied on the hearsay contained within her report to disagree with her recommendation and apply it. [Emphasis in bold supplied by me]

¶19. In McDonald v. McDonald, 39 So. 3d 868, 882 (¶ 47) (Miss. 2010), the Court addressed “whether the guardian ad litem acted beyond her authority by offering hearsay testimony without being qualified as an expert.” The appellant in McDonald argued the chancery court erred in allowing a guardian ad litem to testify as to statements relayed to the guardian ad litem by teachers at a school. Id. at 884 (¶ 53). The McDonald Court set forth the “proper role” of a guardian ad litem as follows:

[A] guardian ad litem appointed to investigate and report to the court is obligated to investigate the allegations before the court, process the
information found, report all material information to the court, and (if requested) make a recommendation. However, the guardian ad litem should make recommendations only after providing the court with all material information which weighs on the issue to be decided by the court, including information which does not support the recommendation. The court must be provided all material information the guardian ad litem reviewed in order to make the recommendation.

Recommendations of a guardian ad litem must never substitute for the duty of a chancellor. Id. at 883 (¶ 48) (citing S.G. v. D.C., 13 So. 3d 269, 282 (Miss. 2009)). During trial of the case, the chancellor had overruled the objection to hearsay, claiming courts in Mississippi have a “historical practice” of allowing guardians ad litem to offer hearsay testimony. Id. The majority opinion in McDonald disagreed with the chancellor’s view, holding, “We find that it was error for the chancellor to find that the rules of evidence did not apply in this adversarial proceeding.” Id. Considering the above-quoted language defining the importance and role of the guardian ad litem along with the admonition issued by the McDonald Court regarding reliance on hearsay, we conclude the following: The guardian ad litem plays an important role, and – as set forth above – chancellors must consider all of the information available to the guardian ad litem when considering whether to follow the
recommendation made. However, especially when a chancellor departs from the recommendation of the guardian ad litem, as happened here, the result reached by the chancellor must be supported by admissible, competent evidence rather than hearsay.

¶20. Presiding Justice Dickinson issued a specially concurring opinion in McDonald tailored to the issue of guardian ad litem testimony and hearsay. Id. at 887 (¶ 65) (Dickinson, P.J., specially concurring). His concurrence was joined by four other justices, giving the opinion precedential value. See Sweatt v. Murphy, 733 So. 2d 207, 209-210 (¶ 7) (Miss. 1999) (noting that when at least four justices vote in favor of another justice’s concurring opinion, the concurrence has “precedential value”). Addressing guardian ad litem hearsay, Presiding Justice Dickinson wrote, “Rule 1 of the Mississippi Rules of Evidence plainly says those rules apply in chancery court—and they include no exception for guardians ad litem.” Id. The concurrence continued: “Certainly I agree that guardians ad litem–properly appointed under Rule 706 and qualified as experts under Rule 703–may rely on hearsay in reaching their opinions. But hearsay used to support an expert’s opinion is quite different from hearsay admitted as substantive evidence.” Id. (¶ 68). In other words, “pure, rank, uncross-examined hearsay” by a guardian ad litem cannot be used as substantive evidence. Id. (¶ 68).

¶21. A dearth of Mississippi jurisprudence squarely addresses the issue of guardian ad litem hearsay being used as substantive evidence.  However, as Presiding Justice Dickinson proclaimed in McDonald, our rules of evidence apply in chancery court; and the rules prohibit, subject to listed exceptions, the use of hearsay as substantive evidence. In view of the rule, the chancery court erred in relying on inadmissible hearsay to find Candice unfit and to invoke the family-violence presumption against Candice. Therefore, we reverse the chancery court’s disposition on custody of the three minor children and remand for further proceedings.

This case is a strong reminder that you must put non-hearsay evidence in the record that will support the chancellor’s findings. If the GAL reported statements by a schoolteacher about the child’s conduct, call the teacher as a witness. If the GAL referred to medical records, get the records with any interpretive testimony in the record. If neighbors witnessed something, put them on the stand to testify about it. That’s what the court was alluding to in the language I put in bold print above: It’s up to you to call the witnesses, to get the documents into evidence, and to do what is necessary to give the judge substantial evidence to support findings.

Remember that the GAL report has two major components: (1) a recitation of what the GAL learned from her investigation, which often includes hearsay; and (2) the GAL’s recommendations. It’s up to you to get the facts unearthed in the investigation into the record in the form of admissible evidence. If all the judge has is that GAL report, then that is all she will be able to say she relies on in making her ruling, and that is a recipe for reversal.

If you are on the side contrary to the GAL’s recommendations, remember that there must be a contemporaneous objection to the testimony. You are extremely unlikely to prevail if you complain for the first time on appeal that the GAL report was rife with hearsay and other objectionable evidence.

A previous post on Coming to Grips with McDonald is here.

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