The Albright Tie

June 12, 2018 § Leave a comment

If the chancellor finds that neither party prevails over the other in Albright factors, may the chancellor find merely that and not make detailed findings? Like this:

The court has considered all of the evidence and testimony in light of the enumerated Albright factors and finds that these two parents are comparatively equal regarding those factors—or put another way, that neither party is favored over the other party in employing the Albright balancing test—and, therefore, the court will and does hereby order joint legal and physical custody to be exercised by both of these parents with regard to the two children that are the subjects of this lawsuit.

There actually is authority to the effect that the chancellor may do exactly that, as we will see, but the COA reversed and remanded a recent case where the chancellor used the language above and did not make detailed findings.

In the case of Robles v. Gonzales, handed down May 15, 2018, Judge Carlton wrote for the court:

¶24. In Adoption of Wright v. Wright, 160 So. 3d 737, 742-43 (¶16) (Miss. Ct. App. 2015), this Court followed the supreme court’s prior holding in Powell, 792 So. 2d at 249 (¶33), [Fn 4] in determining that a chancellor erred by failing to make specific findings regarding each applicable Albright factor. This Court found that “the chancellor’s opinion arguably discussed several of the Albright factors” but explained that “it did so unintentionally and did not address all of the factors applicable in this case.” Id. at 742 (¶16). This Court then reversed the chancellor’s judgment and remanded the case with instructions for “the chancellor to support his decision with an on-the-record Albright analysis.” Id. at 743 (¶16).

[Fn 4] In Powell, 792 So. 2d at 249 (¶33), the supreme court reversed the chancellor’s judgment after finding that the chancellor failed to make specific findings for each Albright factor when making his custody determination.

¶25. However, in Sobieske v. Preslar, 755 So. 2d 410, 413 (¶12) (Miss. 2000), the supreme court affirmed the chancellor’s judgment despite its determination that the chancellor failed to make any express findings as to the Albright factors. In Sobieske, the chancellor provided only the following language in his custody determination:

Considering the factors set forth in Albright, it appears that both parents have the desire and capacity to have the primary custody of [the minor child], however, [the minor child] has close ties to the home she has lived in since birth as well as to her friends and family in Alcorn County, Mississippi. [The minor child] has close ties to Mrs. Sobieske’s twin sister, Mary Allred, and to Ms. Allred’s daughter, Meagan, who is approximately the same age as [the minor child]. [The minor child] also has, in Alcorn County, other family and friends who she is close to. Mrs. Sobieske and her new husband are living in Atlanta, Georgia, and since [the minor child] does not have any other family in that area, there are uncertainties for her there.

Id. at 411-12 (¶4). In Sobieske, the chancellor’s ruling “appears to recognize that both parents are fit under Albright[.]” Id. at 412 (¶4). The supreme court held “it can be inferred from his citation to Albright that [the chancellor] felt that both parents were fit under Albright” but expressed that “it certainly would have been preferable for the [c]hancellor to have expressly considered each Albright factor[.]” Id. at 412, 413 (¶¶4, 12). However, the Sobieski Court explained that “it is perhaps understandable that [the chancellor] did not do so in the present case, given that the testimony established that both [parents] were fit and loving[.]” Id. at 412 (¶4). In affirming the chancellor’s judgment, the Sobieske Court recognized the deference that an appellate court “must show to the [c]hancellor in the exercise of his discretion.” Id. at 413 (¶12).

¶26. In the more recent case of Huseth v. Huseth, 135 So. 3d 846, 858 (¶36) (Miss. 2014), the supreme court again affirmed a chancellor’s judgment awarding physical custody of the minor child to the mother despite finding that the chancellor failed to conduct a detailed, on-the-record analysis of the Albright factors. The supreme court recognized that the chancellor “state[d] that she had weighed the [Albright] factors, . . . [plus] significant evidence was adduced by each party [that] was relevant to the Albright factors and the determination of custody.” Id. Finding its prior precedent in Sobieske controlling, the supreme court affirmed the chancellor’s custody determination and held as follows:

In light of the amount of evidence adduced at trial that was relevant to the Albright factors, the fact that each parent was shown to be a good parent, and the chancellor’s indication that she had considered the factors by noting the stability achieved by the child’s staying with his mother, we find that Sobieske is controlling, and consequently, we affirm the chancellor’s custody determination.

Id. at 859 (¶39). [Fn 5]

[Fn 5] “The chancellor is only required to address those Albright factors that are applicable to the case before him.” Rayner v. Sims, 228 So. 3d 353, 357 (¶12) (Miss. Ct. App. 2017).

¶27. In the case before us, although the chancellor failed to provide an express, on-the-record determination regarding each Albright factor in his final judgment, the chancellor did state that in making his child-custody determination, he “consider[ed] and balanc[ed] the factors set forth by the Mississippi Supreme Court in Albright[.]” The trial transcript also reflects that the chancellor explained that he “considered all of the evidence and testimony in light of the enumerated Albright factors.” However, the chancellor’s ruling reflects only his determination that Robles and Gonzalez “are comparatively equal regarding those factors—or put another way, that neither party is favored over the other party in employing the Albright balancing test.” Unlike Sobieske, the chancellor made no additional finding that both parties were loving and fit, and the record does not reflect on its face that both parents are loving and fit so as to support an award of joint custody. Therefore, we must remand this case to the chancellor to provide findings in accordance with Albright to support his custody determination.

¶28. Additionally, when awarding joint custody, the supreme court has held that “unless the parents are capable of sharing joint custody cooperatively, it is incumbent upon a chancellor not to award joint custody.” Crider v. Crider, 904 So. 2d 142, 147 (¶13) (Miss. 2005). The supreme court instructed that “[t]his is for the chancellor to determine as he or she is in the best position to evaluate the credibility, sincerity, capabilities[,] and intentions of the parties.” Id. The chancellor failed to make on-the-record findings regarding his application of the various Albright factors and as to whether the parties were capable of cooperatively sharing joint custody. We cannot properly review the chancellor’s child-custody determination without findings in support of his determination. Based upon the foregoing, we reverse the chancellor’s judgment and remand the case to the chancellor for further proceedings consistent with this opinion.

So, sometimes “Sobieske is controlling,” à la Huseth, and sometime not, as in this case. The fault line here seems to be in the award of joint custody. The COA felt that it needed more findings to ensure that the award of joint custody was properly made.

As a practitioner, I would encourage you to assume that there must be findings as to each applicable Albright factor in every case. If the chancellor does not do it in a bench ruling or written opinion or even in a final judgment, file a R59 motion asking the court to make such findings. You can even offer your own proposed findings and conclusions of law. It’s the only sure-fire way to try to protect your client in the event of an appeal.

Relocation and Joint Custody

June 11, 2018 § Leave a comment

Julia Bennett and her husband, Andre, were divorced in 2011 on the ground of irreconcilable differences. Their PSA provided that the parties would share joint physical and legal custody, with Julia to have the children with her most of the time.

When Julia decided to relocate from Rankin County to St. Louis, Andre filed to modify, seeking sole custody, and to keep the children in Rankin. Julia counterclaimed for sole custody, and to modify the visitation based on her new residence in Missouri.

At hearing, Andre testified that he was actively involved in the lives of his children, and that he had recently purchased a home suitable for them to stay with him. Julia testified that her father and fiancé lived in St. Louis, and that she had a job awaiting her there. She said, too, that she had been in the process of enrolling the children in school in Missouri until the chancellor had entered an emergency order that the children be enrolled in Rankin County schools. One of the children, Madeline, age 14, testified that her preference was to stay with her mother, with whom she was close. She conceded that she was close to her father also, and that she would abide by the court’s order either way.

The family master, serving as a guardian ad litem (GAL) found that no material change had occurred, because Julia had not moved; however, a move would create a material change adverse to the children, and, if so, Andre should have custody. The GAL’s report incorporated an Albright analysis, which included Madeline’s preference. The chancellor agreed with and adopted the GAL’s recommendations and entered a judgment providing that if Julia relocated to Missouri Andre would have custody, Julia would have liberal visitation, and she would pay child support.

Julia appealed, challenging only the determination not to honor Madeline’s preference. In Bennett v. Bennett, decided April 10, 2018, the COA affirmed unanimously. Judge Fair wrote for the court:

¶12. Julia only challenges one Albright factor – the preference of the minor child. Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2013) provides that a child’s preference may be taken into account in determining child custody:

[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.

“[T]he chancellor is not bound by the election of a minor child.” Floyd v. Floyd, 949 So. 2d 26, 30 (¶12) (Miss. 2007). However, if a chancellor declines to follow a child’s election, he must place the reasons in the record. Id.

¶13. In his Albright analysis, the family master noted the following regarding the child’s preference:

The preference of the child at the age sufficient to express a preference: [Madeline] is fourteen (14). She is over the age of twelve (12). She is able to make a preference. She did make that preference for mother. This factor would favor mother in this regard. [] The stability of the home environment, I believe, favors [Andre] Bennett primarily because he’s been here with the children and with mom up until recently. That is a stable environment, one in which the children are familiar with. You know, [Julia] Bennett, the testimony was you’re going to live with your dad. You don’t really have a place to live. You are not married yet. [There are] a lot of unknowns, a lot of question marks. I am not faulting you for it. I’m just saying that’s just the way it is. All things considered, the best evidence before the [c]ourt on this half is that the material change of circumstances was adverse to the children favors a modification of custody to – to dad.

¶14. We find that the family master appropriately explained his reasons for awarding custody to Andre instead of Julia in the event that Julia relocates, even though Madeline expressed a preference to reside with her mother. It was within the chancellor’s discretion to adopt the family master’s recommendation. Accordingly, we affirm.

Some ruminations:

  • Anticipatory modifications have not been favored. See, McMurry v. Sadler, 846 So. 2d 244 (Miss. App. 2004), in which the court affirmed the chancellor’s decision to dismiss pleadings that alleged that a material change and adverse effect would result if an event happened. In most cases, this approach would be wise because it would be speculative to find material change and adverse effect would occur until they do.
  • Here, it was practical for the chancellor to address the impending move and its effect on joint custody.
  • Relocation almost always plays havoc with joint custody, leaving everyone — the judge included — dissatisfied with the result. To compound matters, the party who does’t wind up with what he or she wanted always feels cheated because joint custody is what they negotiated for, or what was ordered, in the first place.
  • This case highlights that the court is never required to follow a child’s preference. If the preference is not followed, however, the court must state the reasons why. Here, by adopting the GAL’s report and findings on preference, the chancellor made a record as to why he did not follow the child’s preference.

The Better Home Argument for Custody

June 5, 2018 § Leave a comment

In the recent case of In re Guardianship of C.B.F., decided May 8, 2018, the COA confronted the argument that the natural-parent presumption had been rebutted because the grandfather had proven that he could provide a better home for the child than could the mother. Judge Griffis addressed the issue for a unanimous court:

¶35. Although not specifically asserted, it appears Paul claims the chancellor erroneously concluded that he failed to rebut the natural-parent presumption by clear and convincing evidence. We disagree.

¶36. The natural-parent presumption “may be rebutted by clear and convincing evidence that (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.” Wilson v. Davis, 181 So. 3d 991, 995 (¶7) (Miss. 2016). Additionally, the presumption “may be rebutted by clear and convincing evidence that actual or probable, serious physical or psychological harm or detriment will occur to the child if custody is placed with the natural parent, such that granting custody to the third party is substantially necessary to prevent such probable harm.” Id. at 995-96 (¶8). “Such a finding must prevent probable harm to the child, and not simply find that the third party can provide the child with different or arguably ‘better’ things.” Id. at 997 (¶8). “If the natural parent presumption is rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child’s best interests.” Id. at 995 (¶7).

¶37. Paul does not challenge the chancellor’s findings regarding each factor. Instead, Paul claims that “[r]igid adherence [to proving one of the four factors] placed [Carter] in a circumstance which is clearly not in his best interests.” See id. at (¶8) (noting “that the rigid adherence to proving one of the four precise factors to rebut the natural parent presumption may, in very limited and exceptional circumstances, place a child in a circumstance that is clearly not in his or her best interests”). However, as noted by the GAL, simply because Paul may offer a more suitable home for Carter is not enough to rebut the natural-parent presumption. Indeed, the chancellor found there was no evidence that “actual or probable, serious physical or psychological harm or detriment w[ould] occur if the custody of Carter [wa]s placed with Hollee.” [Emphasis mine]

Not a whole lot to chew on there, but I wanted to highlight the principle that even though most grandparents can provide a nicer home, more material pleasures, and a more comfortable life, that is not enough to overcome the natural parent presumption. There must be a showing by clear and convincing evidence of one or more of the four Wilson v. Davis factors, or that serious harm to the child will result from placement with the natural parent.

We are seeing more and more situations like the facts in this case in which the natural parents live with their parents, or leave a child with their parents intermittently, or abandon the child entirely. In most of these cases, the grandparents become de facto parents to the child, and they become quite attached to the youngster. It can become a real tug-of-war when the natural parent shows up and demands to have the child back.


A Reminder of How the Albright Factors Count

April 16, 2018 § Leave a comment

In too many appeals, I read that the appellant challenges how the chancellor analyzed and applied some or all of the Albright factors.

The case of In re N.B., 135 So.3d 220, 227 (Miss. App. 2014), the court stated the rule:

An Albright analysis is not premised solely on a scoring system to determine which parent “wins[,]” … [a]nd our review for manifest error is not a mechanical check on the chancellor’s score card to see if she “tallied” each parent’s score correctly. Instead, we ask whether the chancellor considered all relevant facts, giving deference to the weight she assigns each factor. [quoting May v. May, 107 So.3d 1052, 1054 (¶ 8) (Miss. App. 2013)].

To put it another way, the appellate courts are not going to check the final scorecard for errors of judgment as to runs, hits, and errors; rather, the court looks at whether the chancellor considered all of the relevant facts and analyzed them in light of the factors, and the court will give deference to he judge’s decision on the weight to be assigned to each factor.

If the judge did consider all of the relevant facts and addressed the applicable Albright factors, the chancellor will be affirmed, and that includes the chancellor’s decision as to which factors to assign greater weight.

N.B. was quoted in the COA’s decision in In the Matter of Adoption of a minor Child: J.A.G. and S.G. v. C.T. and B.T., decided November 14, 2017.

Visitation Behind Bars

February 27, 2018 § Leave a comment

Nolana Griffin, a school teacher, was convicted of having sexual relations with several of her teenaged students, and was sentenced to Parchman. After a couple of years, her husband, Chad, sued for divorce and, following a contested trial, he was granted both the divorce and custody of the parties’ four daughters, one of whom had Asperger’s Syndrome. The children ranged in age from 15 to 7. The chancellor also found that regular visitation with Nolana was not in the children’s best interest. The chancellor offered five bases for his decision:

  1. All of the visitation would have to occur at Nolana’s prison;
  2. The prison is 4 1/2 hours distant from the children’s residence;
  3. Any visit would require that all parties, including the children, would have to be searched before entering;
  4. The visitation area is open and may expose the children to violent offenders;
  5. The best interest of the children would not be served by exposing them to these conditions.

Nolana appealed.

In Griffin v. Griffin, a MSSC decision dated February 1, 2018, the court affirmed. Justice Maxwell for the unanimous court:

¶14. We have never addressed head-on the impact of a noncustodial parent’s incarceration on his or her right to visitation. The issue was raised but not reached in Christian v. WheatChristian, 876 So. 2d at 346. In dicta, however, we did note that “[j]urisdictions which have reached the question of visitation rights of incarcerated parents generally express that incarceration, alone, is not sufficient to preclude visitation.” Id. [Fn omitted] See also, e.g., Davis v. Davis, 648 N.Y.S.2d 742, 743 (N.Y. App. Div. 1996) (“It is generally presumed to be in a child’s best interest to have visitation with his or her noncustodial parent and the fact that a parent is incarcerated will not, by itself, render visitation inappropriate.”). Today, we follow those jurisdictions and hold that incarceration, in and of itself, is not sufficient to overcome the presumption that a noncustodial parent is entitled to visitation.

¶15. Applying this holding, we find no reversible error in the chancellor’s decision. Contrary to Nolana’s assertion, the chancellor did not base his visitation decision solely on the fact Nolana is incarcerated. Instead, with the “paramount concern” in mind, he found that, based on the circumstances, the presumption in favor of visitation had been overcome and that court-ordered, every-other-week visitation with Nolana was not in the children’s best interest. He supported his decision with substantial evidence that judge-mandated visitation may be physically and emotionally harmful to the girls. The chancellor was swayed by a variety of factors. One was the physical distance the girls would have to travel twice each month (eight to nine hours round trip). Others included the requirement of a pat-down physical search, the location of the jail visits (in a communal room where potentially violent offenders were also visiting family), the oldest daughter’s social disability (Asperger’s Syndrome), and the fact Nolana’s daughters had not seen their mother since her arrest and much less that she was even incarcerated.

¶16. We note the chancellor’s decision is in line with other courts that have denied prison visitation in similar circumstances. Recently, a New York family court—after emphasizing that the law presumes visitation is in the child’s best interest, even when the noncustodial parent is incarcerated—denied an incarcerated father visitation with his son with autism, a social disorder related to Asperger’s Syndrome. E.A. v. R.A., 56 N.Y.S.3d 815, 820 (N.Y. Fam. Ct. 2017). The court found the presumption in favor of visitation had been rebutted by evidence of social stress the prison visit may have on his son, the fact the child may be stripsearched, the four-hour drive, and that the son had not seen his father since his incarceration. Id. See also Davis, 628 N.Y.S.2d at 743 (affirming the family court’s decision to deny an incarcerated father visitation based on the “militating evidence” prison was three-and-a-half hours away and child had medical condition making it unwise for him to travel away from
home frequently).

¶17. In Louisiana, an incarcerated father was likewise denied visitation. Davis v. Davis, 494 So. 2d 1315, 1318 (1986) (La. Ct. App. 1986). The father had been sent to prison in Texas for sexually assaulting his children’s twelve-year-old babysitter. Like Nolana, he requested Saturday morning visitation, twice monthly, but was denied. On appeal, the Louisiana Court of Appeals agreed that bi-weekly visitation with their father “would prove traumatic for children of their tender years,” especially considering the distance to be traveled (as in this case, a four-and-a-half hour drive one way), the recentness of the conviction, the security measures the children would undergo, and the children’s relationship to their father’s victim. Id. Thus, the court could not “say that the trial court abused its great discretion in concluding that at this time the children’s best interests would not be served by allowing such visitation.” Id.

¶18. The Louisiana court, however, was quick to caution that it “d[id] not mean to imply that the father has forfeited his right of visitation.” Rather, it viewed the trial court’s ruling “more akin to a suspension of the father’s visitation privileges until such time as it would be easier for the children to cope with the strain inherent in this situation.” Id. “In denying visitation at this time, but allowing the father to correspond with the children,” the appellate court believed the “trial judge has attempted to provide a means for the father to re-establish a relationship with the children gradually.” Id. The hope was to work toward a situation “where limited visitation will prove acceptable.” Id.

¶19. The chancellor here similarly provided a means for Nolana to maintain her relationship with her daughters with the eventual goal being visitation. He granted Nolana substantial phone visitation. She was also to be kept informed by Chad of the goings-on in her children’s lives. And the chancellor encouraged Chad to allow his daughters to visit their mother if and when Chad determined it appropriate.

¶20. This Court has recognized “that children of divorced parents should be encouraged to have a close, affectionate and, under the circumstances, as normal as possible a parent-child relationship.” Cox, 490 So. 2d at 870 (emphasis added). And based on the facts before him, that is what the chancellor tried to do. 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. See Harrington, 648 So. 2d at 545. Therefore, the chancellor’s
decision is entitled to the “great deference” this Court typically gives chancellors when determining visitation. Newsom, 557 So. 2d at 515.

¶21. Because of this deference, we affirm the divorce decree, which included no court ordered visitation with Nolana.

The only rule that can be drawn from this is that every parent is presumptively entitled to visitation, and incarceration alone does not overcome that presumption. To limit visitation with a jailed parent, there must be facts, as here, that support a finding that the conditions of visitation are against the best interest of the children and warrant limitation or suspension of visitation. There can be no one-size-fits-all solution. Each case will depend on the conditions of incarceration, the procedures for visitation involving the children, distance and travel conditions, and the children’s specific needs.

The Primary Custody Myth

January 29, 2018 § 5 Comments

Many custody agreements provide for one party to have “primary physical custody.” Many judgments incorporate similar language. You will find the term sprinkled throughout appellate decisions.

The fact is, though, there is no such thing as primary custody.

I posted about the misuse of the term, and how it can hurt your client, in an early post ‘way back in 2010.

A recent COA case illustrates just how the concept can lead to heartbreak for at least one of the parties. Judge Fair, writing for a unanimous court in Gaddis v. Wilkerson, decided January 9, 2018, laid out the law on the point:

¶7. Richard and Tracey have shared joint legal and physical custody of Logan since the original divorce decree. Joint physical custody does not require equal time with each parent, but it does require that the parents have “significant periods of physical custody . . . to assure a child of frequent and continuing contact with both parents.” Miss. Code Ann. § 93-5-24(5)(c) (Rev. 2013).

¶8. Tracey contends that the chancellor erred when he modified the schedule within the custody agreement. At trial and on appeal, both parties have incorrectly stated that Tracey has primary physical custody of Logan and that Richard has visitation. The original custody agreement, the 2013 modified custody agreement, and the appealed 2016 modified custody agreement all state that Tracey and Richard are both custodial parents – an important distinction for Richard. Neither party is categorized as having “primary physical custody,” nor is either party awarded visitation. Further our supreme court has emphasized that the term “primary physical custody” is not specified in section 93-5-24 and “cannot act to transform such express ‘joint physical custody’ into de facto sole physical custody with liberal visitation.” Porter v. Porter, 23 So. 3d 438, 446-47 (¶22) (Miss. 2009).

In other words, if you create a joint legal custody agreement, the court will enforce it as such. Even if Tracey had been expressly designated as the one with “primary custody,” Porter holds that the term does nothing to change the effect of joint physical custody. I suggest that the best practice is to banish the term from your documents.

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.

Another Joint Custody Award in a Non-Divorce Case

December 13, 2017 § Leave a comment

In previous posts that you can read here and here, we talked about awards of joint custody in cases that did not involve divorce. The former link was a paternity case; the latter was a third-party custody dispute between grandparents.

In yet another paternity case the chancellor awarded joint custody and his decision was affirmed in Rayner v. Sims, handed down October 17, 2017, by the COA.

The case is not particularly noteworthy, except to add it to your stockpile of authority supporting awards of joint custody in non-divorce cases.

The COA’s decision does include a discussion of one way that a chancellor may calculate child support in a shared-custody arrangement. Here’s what Judge Griffis’s opinion had to say about it:

¶29. Mackie further claims the chancellor “engaged in his own computation of the child support obligation that is not supported by or authorized by statute.” We disagree. The chancellor ordered that Chance would have physical custody three days per week, and Mackie would have physical custody four days per week. The chancellor found that child support for the minor child would be based “upon 14 percent of each party’s adjusted-gross income” and that each party “shall pay child support in proportion to their periods of shared custody and their incomes.” [Fn 6] We find statutory support for the chancellor’s decision.

[Fn 6] The chancellor stated he would leave it up to the attorneys to “do the math.”
Counsel subsequently submitted an exhibit, which outlined the child-support calculation.

¶30. Mississippi Code Annotated section 43-19-101(1) (Rev. 2015) provides that 14% of a party’s adjusted gross income should be awarded for the support of one child. Pursuant to section 43-19-101(2), the percentage outlined in subsection (1) applies unless the court “makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in section 43-19-103.” Under Mississippi Code Annotated section 43-19-103(g) (Rev. 2015), the “particular shared parental arrangement” is a factor the chancellor may consider in his adjustment of the statutory guidelines established by section 43-19-101(1). Miss. Code Ann. § 43-19-103(g).

¶31. Here, the record shows that the chancellor found the statutory percentage, as outlined in section 43-19-101(1), should be adjusted based on the parties’ joint custody arrangement, “in proportion to their periods of shared custody.” The chancellor further ordered that Chance shall continue to provide insurance for Frances. Such decision is supported and authorized by statute. Accordingly, we find no error and affirm.

We have all seen this apportionment of child support process handled a hundred different ways. I am sure you have seen some creative ways yourself. As long as the result comports with the statutory percentages and takes into account the shared custody arrangement, the judge’s decision would likely be affirmed.

Whose Inconvenience Counts in Visitation?

December 5, 2017 § Leave a comment

When Mike and Kim Smith were divorced in 2011, both of them lived in the Tupelo area. In 2012, Kim relocated near Atlanta with the children, and the parties agreed to meet for visitation exchanges in Leeds, Alabama, a point approximately half-way.

Mike customarily travelled to Kentucky for work or play, and the parties agreed for a time to meet in Chattanooga, which was more convenient for Mike. Kim, however, found the Chattanooga exchange unacceptable, and insisted on the Leeds exchange location. Mike filed a petition to modify visitation to require the Chattanooga location.

Following a hearing, the chancellor denied Mike’s petition to modify the visitation exchange point. Mike appealed. In Smith v. Mull, decided November 7, 2017, the COA affirmed. Judge Lee wrote for the unanimous court, Tindell not participating:

¶14. Mike also argues that the chancellor erred in failing to modify the exchange location from Leeds to Chattanooga when he is working or visiting in Kentucky. In doing so, Mike asserts the chancellor “gave no cogent reason” for her decision. We disagree.

¶15. This Court has articulated the relevant principles regarding modifications of visitation: When modification of visitation is at issue, the material change in circumstances test is not applicable because the court is not being asked to modify the permanent custody of the child. To modify a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child. The chancellor has broad discretion to determine the specific times for visitation. H.L.S. v. R.S.R., 949 So. 2d 794, 798 (¶9) (Miss. Ct. App. 2006) (citations and internal quotation marks omitted). With these principles in mind, we find the chancellor’s decision to deny Mike’s request for modification was supported by substantial credible evidence.

¶16. In his motion, Mike sought to have the exchange location modified to “the most convenient location for . . . the minor children.” He argued that when he is working or visiting in Kentucky, Chattanooga should be the court-ordered exchange location, as it is a slightly shorter distance (approximately 143 miles) from Kim’s home than Leeds (approximately 152 miles). He further argued that the chancellor’s failure to modify the
exchange location was not in the best interests of the children because it requires approximately 150-160 additional miles per exchange when he is in Kentucky. He alternatively sought to have Kim meet him at a different location so long as it did not exceed the 152 miles that Kim would normally drive from her home. Kim testified that Leeds was “very systematic, very structured, it’s what we’re used to, we know the safe places, we know all that stuff.” Kim also testified that, although Chattanooga may be a shorter overall distance from her home, it took longer to travel there than to Leeds.

¶17. To prevail, Mike needed to show that “the prior decree for reasonable visitation [was] not working and that a modification [was] in the best interest[s] of the child[ren].” Id. After hearing testimony from both parties, the chancellor found: “[M]odification of the place of exchange, while perhaps more convenient for [Mike] when he elects to travel out of state, would disturb the children’s routines with which they have become comfortable and which complies with the prior decrees.” The chancellor further stated: “I don’t buy into [Mike’s] argument . . . that the court is inconveniencing the children, because, as their father, [Mike] ha[s] to make whatever decision works for [himself]in their best interest[s].” The chancellor ultimately held that Mike failed to show that visitation was not working to serve the best interests of the children. Upon review of the facts before us, we do not find the chancellor erred by declining to modify the visitation-exchange location. This issue is without merit.

This is actually a somewhat familiar fact situation in chancery court. One or both parties relocate, throwing visitation into controversy. In these cases, I often hear it said that the test is whether the prior order for visitation is working or workable. But that is an incomplete statement. The test is actually whether the prior order for visitation is not working … and whether modification is in the best interest of the child or children. That latter consideration is what tripped Mike up in this case. It’s not what is more convenient for either or both parents; it’s what is in the best interest of the child or children.

Jurisdiction to Modify Child Custody

November 27, 2017 § Leave a comment

Ever since the ancient case of Reynolds v. Riddell, 253 So.2d 834 (Miss. 1971), the law in Mississippi has been that once a Mississippi court enters a judgment awarding custody, that court in that particular chancery district retains exclusive jurisdiction to modify and enforce its judgment between parties continuing to reside in the state, even if one or both parties have relocated to other counties.

The sole exception is a Habeas Corpus proceeding, which must be brought in the county where the children are located. Bubac v. Boston, 600 So.2d 951 (Miss. 1992). Habeas, however, is a temporary action that does not confer continuing jurisdiction on the Habeas court, and does not actually effect a permanent modification. Id. at 955; See also, Pruitt v. Payne, 14 So.3d 806 (Miss. App. 2009).

Reynolds did provide an escape hatch: if the chancellor finds that the matter is inconvenient in the original county, due, say, to the relocation of the parties, she can transfer the action to another county. Reynolds at 837.

Against this backdrop, we consider whether it is proper for the chancery court in one custody modification action before it to, in effect, transfer the modification to another child custody action pending before it. That’s what the chancellor did in the custody dispute between Kelly Burge and the two fathers of her children, Chad Sharff and Craig Burge. Sharff had filed for modification of custody of his son. Burge filed for modification of a prior divorce judgment between him and Kelly, seeking custody of his son.

In the course of the custody cases, the chancellor dismissed Chad’s claims and consolidated cases as described below. The chancellor awarded custody of all of the children to Craig, and Kelly appealed.

One issue Kelly raised was that the chancellor had authority only in her original divorce action to modify custody, and that it was error for him to consolidate it into another custody case not arising from the divorce. In Burge v. Burge and Sharff, decided August 1, 2017, the COA affirmed. Judge Barnes penned the opinion for a unanimous court:

¶45. Kelly makes the procedural argument that the chancery court’s jurisdiction over the Sharff divorce ended when Chad’s custody-modification pleadings were involuntarily dismissed due to failure to prosecute. She claims that because Craig lacks standing in the Sharff divorce, no motion for modification survived, and the chancery court lacked grounds and jurisdiction to modify the Sharff action. Additionally, Kelly contends that the record supports collusion between Craig and Chad, who were attempting to deprive Kelly of custody of her four minor children by misuse of the procedural process. We are not persuaded by this argument.

¶46. Initially, Chad filed a petition to join Craig’s case “for just adjudication,” and requested Craig have custody of the children so as not to separate them. Alternatively, Chad requested he have custody. Approximately ten months later, Chad filed a petition to modify child custody in his own case, requesting legal and physical custody of his two children, since a material change in circumstances had occurred – the Burge divorce proceedings. He also filed a motion to transfer and consolidate his case with Craig’s case, since the same evidence would be presented in both cases to determine custody. Likewise, Craig filed a motion to consolidate his case with Chad’s case, and before trial began, the cases were consolidated.

¶47. At the conclusion of Craig’s and Chad’s case-in-chief, Kelly’s counsel made an ore tenus motion for the involuntary dismissal of Chad’s custody-modification action under Mississippi Rule of Civil Procedure 41(b), because Chad had not presented any evidence at trial to forward his claim. [Fn omitted] Indeed, Chad had not been physically present during the trial since an initial motions hearing nearly eight months earlier. Accordingly, the chancery court granted Kelly’s Rule 41(b) motion to dismiss, denying any relief requested by Chad for custody of his children. However, in the chancellor’s opinion, he stated that the Sharff divorce judgment was modified by Craig’s grant of custody.

¶48. From this ruling, Kelly argues that the involuntary dismissal of Chad’s custody modification in this case makes it “legally impossible” for the chancery court to address a change of custody for the Sharff children from Kelly to Craig. She contends the involuntary dismissal was an adjudication on the merits, and Craig no longer has standing in the Sharff case. Thus, the court lacked jurisdiction to modify the custody in it, and the children must remain in Kelly’s custody. We disagree.

¶49. In Professor Deborah Bell’s family-law treatise, she states:

A petition to modify . . . [a] custody . . . order must be filed in the court that issued the decree. As between the parties in the original action, the issuing court’s jurisdiction is exclusive, precluding any other court in the state from exercising jurisdiction over the case. . . . However, if an issuing court finds that adjudication in another court would be more efficient, jurisdiction may be transferred to that court.

Deborah H. Bell, Bell on Mississippi Family Law, § 18.07(1), at 447 (1st ed. 2005). Mississippi Code Annotated section 93-11-65 (Rev. 2013) allows the chancery court to hear a custody case apart from a divorce action. [Fn 10] Here, prior to the modification action filed by Chad, Craig had filed for third-party custody of the Sharff children in this action. According to statute, both actions were filed in the Lamar County Chancery Court, as the Sharff children resided in Lamar County in both actions, which is where custody between the natural parents has already been adjudicated. Chad’s modification action and Craig’s action are in the same chancery court, but with different cause numbers. Craig requested custody – something the court could grant – and both natural parents were given notice and an opportunity to be heard. The chancery court had the jurisdiction to modify custody of the Sharff children. That jurisdiction was not lost when Chad’s petition to modify custody was dismissed. [Fn 11] Kelly has not cited any authority to the contrary. This issue is without merit

[Fn 10] Section 93-11-65(1) provides that the chancery court of the proper county has jurisdiction to hear and determine suits for custody of minor children. “Proceedings may be brought by or against a resident or nonresident of the State of Mississippi, whether or not having the actual custody of minor children, for the purpose of judicially determining the legal custody of a child.” The action shall be brought in the county where the child is actually residing, or in the county of the residence of the party with actual custody, or in the county of the residence of the defendant. “Process shall be had upon the parties as provided by law . . . .”

[Fn 11] Even if the action had been filed in a different chancery court, the chancellor could have transferred the action. Here, the actions were merely consolidated as they were already in the same court.

Conclusion: not error to consolidate the cases into a case different from the original judgment sought to be modified. Here, the chancellor ordered the consolidation, which was equivalent to a transfer under Reynolds. I think the best practice always is to get an order of the chancellor consolidating.

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