March 26, 2019 § Leave a comment
In the divorce between Tracy and Brent Williams, the chancellor granted custody of their 17-year-old son to Brent, and declined to set a visitation schedule. Tracy appealed, complaining that the chancellor was in error in not setting a specific schedule.
In Williams v. Williams, decided January 17, 2019, the MSSC affirmed. Justice Beam wrote for a unanimous court:
¶6. “The chancellor has broad discretion when determining appropriate visitation and the limitations thereon.” Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994) (citing White v. Thompson, 569 So. 2d 1181 (Miss. 1990)). “When the chancellor determines visitation, he must keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child.” Id. At the trial of this matter, the chancellor ruled,
Mom can have visitation with the child to be agreed upon between Mom and the child. The Dad is ordered not to interfere with the visitation, but, as I stated earlier, Mom’s actions and her continued actions and interference with this child have caused this alienation. It is not Dad’s fault, and so, I am not placing a burden – I’m not giving you a specific visitation schedule because I’m not placing a burden on Dad to make this child visit.
¶7. Tracy argues that the chancellor erred by allowing a child to set visitation at his discretion. While the chancellor acknowledged that her ruling on visitation was different from her normal practice, she found that Kendall’s desires and wishes should be taken into consideration. Trial revealed that Tracy had removed Kendall’s possessions, furniture, and rifle from the marital home, as well as his money jug containing $800. The court found that Kendall had viewed his mother’s actions as a personal affront. Tracy refused to provide Kendall the necessary documentation to complete driver’s education, to receive a passport so he could travel outside the United States with the USA baseball team, or to transfer from
Magnolia Heights School to a DeSoto County school for better baseball opportunities. The chancellor stated, “Quite honestly, I think she’s done some things that I think indicate that she’s much more interested in getting her own way than in thinking about what’s in the best interest of her child.”
¶8. Tracy correctly stated that this Court has made it clear that the objective of visitation is that “the non-custodial parent . . . and child should have as close and loving a relationship as possible, despite the fact that they may not live in the same house.” Dunn v. Dunn, 609
So. 2d 1277, 1286 (Miss. 1992) (citing Clark v. Myrick, 523 So. 2d 79, 83 (Miss. 1999)). However, this Court has also found that, while a non-custodial parent is presumptively entitled to visitation as stated in Griffin v. Griffin, that presumption can be overcome when “substantial evidence” justifies doing so. Griffin v. Griffin, 237 So. 3d 743, 747 (Miss. 2018) (quoting Cox v. Moulds, 490 So. 2d 866, 870 (Miss. 1986)). Cf. Newsom v. Newsom, 557 So. 2d 511, 517 (Miss. 1990) (emphasis removed) (holding “that the chancery court has the power to restrict visitation in circumstances which present an appreciable danger of hazard cognizable in our law”).
¶9. In Griffin, the chancellor denied a mother visitation with her four daughters because visitation was not in the children’s best interests. Griffin, 237 So. 3d at 745-46. The mother was incarcerated in the Washington County Correctional Facility in Greenville, Mississippi, four hours away from where the daughters lived. Id. In order to exercise visitation, the daughters would have to be searched and exposed to the prison environment. Id. The chancery court held that the presumption of visitation had been overcome. Id. at 746. “The chancellor considered Nolana’s circumstances and deemed phone visitation, for now, and possible future in-person visitation at Chad’s discretion was the best possible balance
between recognizing Nolana’s constitutionally protected rights, encouraging the parent-child relationships, and protecting the girls’ best interest.” Id. at 749 (citing Harrington, 648 So. 2d at 545). On appeal, this Court affirmed the chancellor’s ruling.
¶10. Although the facts of this case differ, the principle that a presumption of visitation can be overcome with sufficient evidence remains the same. Kendall is eighteen years old and is living in Florida to pursue his baseball career. Although the chancellor had only become aware of Kendall’s new schooling in Florida just before her ruling, the knowledge did not change her mind about visitation. She stated,
And there is a huge big rift to heal. And I know forcing him to come to your house every other weekend – which you can’t do because he’s living in Florida, anyway – is not going to fix that situation. And I want y’all to figure out some way – you know, as I said, maybe this time and distance will help fix it.
¶11. Based on the facts presented at trial, this Court finds that the chancellor did not err in declining to set a visitation schedule under these unique circumstances. Given the broad deference afforded chancellors in visitation matters, we affirm the chancellor’s ruling. Tracy and Brent can travel to Florida any time to support and to visit Kendall while he pursues his baseball dreams.
You can take away that the default setting is for there to be a visitation schedule that defines the terms of visitation. You can overcome that if you put on enough proof that a visitation schedule would not be in the child’s best interest.
A post on the Griffin case can be found at this link.
February 20, 2019 § Leave a comment
Ever since the dawn of the MRCP, Mississippi has been at least nominally a notice pleading state. As R8 describes it, all that is required is a “short and plain statement of the claim showing that the pleader is entitled to relief” and a demand stating the relief requested. Contrast that with the arcane rules that demanded prolix and convoluted pleadings.
So, the result is that pleading for plaintiffs is much more streamlined since the MRCP, right? Well, yes, compared with the situation pre-rules. BUT there are requirements of which one must be aware lest one lapse into error. Here are the Advisory Committee Notes to R8, which succinctly state what is required:
Rule 8 allows claims and defenses to be stated in general terms so that the rights of the client are not lost by poor drafting skills of counsel. Under Rule 8(a), “it is only necessary that the pleadings provide sufficient notice to the defendant of the claims and grounds upon which relief is sought.” See DynaSteel Corp. v. Aztec Industries, Inc., 611 So. 2d 977 (Miss. 1992). A plaintiff must set forth direct or inferential fact allegations concerning all elements of a claim. See Penn. Nat’l Gaming, Inc. v. Ratliff, 954 So. 2d 427, 432 (Miss. 2005). Motions or pleadings seeking modification of child custody must include an allegation that a material change has occurred which adversely affects the child or children. It is not sufficient to allege that an adverse change will occur if the modification is not granted. See, e.g., McMurry v. Sadler, 846 So. 2d. 240, 244 (Miss. Ct. App. 2002). In cases involving the joinder of multiple plaintiffs, the complaint must contain the allegations identifying by name the defendant or defendants against whom each plaintiff asserts a claim, the alleged harm caused by specific defendants as to each plaintiff, and the location at which and time period during which the harm was caused. See 3M Co. v. Glass, 917 So. 2d 90, 92 (Miss. 2005); Harold’s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493, 495 (Miss. 2004). Failure to provide this “core information” is a violation of Rules 8 and 11. Plaintiffs in such cases must also plead sufficient facts to support joinder. Glass, 917 So. 2d at 93; Mangialardi, 889 So. 2d at 495. [My emphasis]
Often the inadequacy of the pleading is brought up via a R12(b)(6) motion which, when granted, allows leave to amend and correct the deficiency. In McMurry, supra, however, the defendant sprang the trap at trial, and when the plaintiff failed to move to amend the judge dismissed the pleading.
McMurry requires that all three elements of modification of custody be pled (i.e., material change, adverse effect, best interest). But there are custody modifications that involve detrimental or dangerous situation for the child a la Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996), with no adverse effect. In those cases you should spell out in your petition or complaint that there has been a material change creating a detrimental or dangerous situation for the child, and it is in the child’s best interest to change custody.
February 13, 2019 § Leave a comment
In most cases, it’s the COA telling a chancellor that he should not have ordered supervised visitation. The default setting for visitation is that it should be unsupervised and free of any unwarranted restrictions.
But in the final judgment of divorce between Christina and William Leblanc the chancellor refused to impose supervision or other restrictions on William’s visitation and Christina appealed, complaining that William had a history of drug problems that made supervision necessary.
In Leblanc v. Leblanc, decided October 23, 2018, by the COA, reversed on other grounds, the court remanded the visitation issue to the trial court to determine whether supervised visitation was required for the children’s best interest. Judge J. Wilson wrote the opinion for a unanimous court (Irving not participating):
¶66. “The chancellor has broad discretion when determining appropriate visitation and the limitations thereon.” Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994). “When the chancellor determines visitation, he must keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child.” Id. “[T]here must be evidence presented that a particular restriction on visitation is necessary to avoid harm to the child before a chancellor may properly impose the restriction.” Id. “Otherwise, the chancellor’s imposition of a restriction on a non-custodial parent’s visitation is manifest error and an abuse of discretion.” Id. However, a chancellor may require visitation to be supervised based evidence of continued drug abuse by the non-custodial parent. See Bell, Mississippi Family Law § 12.08, at 378-79. A court may also order parents to continue to submit to drug testing. See McLemore v. McLemore, 762 So. 2d 316, 322 (¶19) (Miss. 2000).
¶ 67. Prior to trial in this case, the chancery court entered two orders requiring supervision of Billy’s visitation. The orders were based on concerns about Billy’s continued drug use. During the same time period, Billy failed both of his court-ordered drug tests, testing positive for methamphetamine and amphetamines in August 2016 and again in November 2016. A few months later at trial, the court heard additional testimony and evidence regarding Billy’s drug use and history of drug addiction. Billy admitted at trial that he had used drugs at home and “had some issues with drugs.” Billy did not testify that those issues had been addressed, nor is there any evidence that they were. There is no evidence in the record that Billy ever passed a drug test during the course of this case, and the results of his November 2016 drug test suggested that his drug use had actually increased. Despite these issues, the court’s final judgment awarded Billy substantial unsupervised visitation, including alternating weekends, holidays, and four weeks in the summer. The court’s opinion discussed Billy’s drug use and failed drug tests, but the court did not explain why supervision of his visitation was no longer necessary. Nor did the court require Billy to take any additional drug tests. Christina argues that the chancery court abused its discretion by permitting unsupervised visitation.
¶68. As stated above, in setting the terms of visitation, the chancery court “must keep the best interest of the child as [the court’s] paramount concern.” Harrington, 648 So. 2d at 545. Here, the chancery court initially restricted Billy’s visitation because of concerns about his drug use, and Billy continued to test positive for methamphetamine—and never passed a single drug test. Nonetheless, in its final judgment, the chancery court awarded Billy unsupervised visitation. Moreover, the court did so without providing any explanation as to why supervision was no longer necessary. For the reasons discussed above, it is necessary for us to reverse and remand the case on other grounds. We further hold that on remand the chancery court must determine whether unsupervised visitation is consistent with the children’s best interests and whether supervision is necessary to avoid harm to the children. It has been more than a year and a half since the final judgment was entered, so the chancery court should consider evidence regarding Billy’s exercise of unsupervised visitation during that time and the “circumstances at the time of the remand hearing.” Vaughn v. Davis, 36 So. 3d 1261, 1267 (¶18) (Miss. 2010). The court may also consider whether Billy should be required to submit to additional drug tests. See McLemore, 762 So. 2d at 322 (¶19).
Most of the heavy lifting in these cases is done by the side looking to impose restrictions on visitation. This case gives you a blueprint for the type evidence that the COA is looking for in the record to justify restrictions.
On the other hand, if you’re fighting restrictions and you feel that the chancellor has not sufficiently justified the non-imposition, file a R59 motion and make a request per R52(b) for the court to amend its ruling to make additional findings that support it.
January 29, 2019 § Leave a comment
As I have mentioned around here before, change of a child’s name in a paternity case can be, to put it mildly, a contentious issue. You can read a previous post on the topic at this link.
Authority for the court to change the child’s surname is at MCA § 93-9-9(1), which says that, “The surname of the child shall be that of the father, unless the judgment specifies otherwise.”
The key case interpreting the statute is Rice v. Merkich, 34 So.3d 555 (Miss. 2010)., which holds (at page 557) that the trial court should change the child’s surname to that of the father unless the mother proves by a preponderance of the evidence that it would not be in the child’s best interest to change the child’s name.
In a recent case, Olson v. Bennett, decided December 18, 2018, the COA reversed and rendered a chancellor’s decision to change the child’s name. Robert Bennett had filed a paternity action after his child was eight years old and had already started school. Bennett had attended the birthing of the child, but refused to be listed as father on the birth certificate, and insisted on a paternity test. Due to his refusal to be named on the birth certificate, the child took the mother’s name, Olson. Even after the DNA test confirmed his paternity, Bennett took no action to have his name added to the birth certificate, and he did not immediately begin paying child support. The child lived exclusively with the mother, Lana, and Bennett was mostly absent from the child’s life until he filed his court action.
After Bennett filed his paternity action, the parties settled all issues of custody and support, leaving the issue of name change for the court to adjudicate. The chancellor ordered that the child’s name be changed to Bennett, but stayed registration of the judgment with the Department of Vital Records until resolution of appeal. Lana did appeal.
Here is how Judge Wilson analyzed it for the 7-3 majority [the child is referred to by the fictitious name “Noah”]:
¶16. In this case, the chancellor cited Rice, but many of the chancellor’s statements were inconsistent with Rice’s best-interest/preponderance-of-the-evidence standard. As noted above, the chancellor began the hearing by suggesting that he could make an “exception” to the rule that a “child shall take the last name of the father” only if Lana proved that “the circumstances are such that it is just really a traumatic kind of thing that would make it just absolutely inappropriate for the child to carry the father’s name.” The chancellor further stated that he could make an exception if there was “something seriously wrong with the father”—for example, if the father had raped the mother or “was a pedophile and had been abusing the child.” The chancellor indicated that some other “drastic” set of facts might justify an exception, although he did not provide additional examples. At the conclusion of the hearing, the chancellor recognized that there were “certainly some reasons that [Lana] could point to and say it would be in [Noah’s] best interest to leave [his name] as it is.” But the chancellor then concluded: “I don’t think that [Lana’s reasons] meet the criteria that the Supreme Court has set for us to be able . . . to allow the name to be different from what the statute says. The statute says that the child shall carry the father’s name.” The chancellor then “reluctantly” ordered Noah’s surname to be changed to Bennett.
¶17. The chancellor’s statements imply a misreading of the majority opinion in Rice. Lana was not required to prove that there was “something seriously wrong” with Bennett or that it would be “absolutely inappropriate” for Noah to have Bennett’s surname. Nor was Lana required to prove that Noah would be traumatized by a name change. Under Rice, Lana only needed to show, by a mere preponderance of the evidence, that it would not be in nine-year-old Noah’s “best interest” to change his name. Rice, 34 So. 3d at 557 (¶¶8-9). We conclude that Lana met her burden and that the chancellor manifestly erred by ruling otherwise.
¶18. To begin with, the facts of this case are materially different from the facts of Rice. In Rice, Merkich took action when Presley was only weeks old so that she was barely one year old when her name was changed. As Justice Lamar put it, Presley was still “too young even to know her last name.” Id. at 563 (¶28) (Lamar, J., dissenting). In contrast, Bennett did not seek visitation with Noah or take any action to change his name until Noah was nearly eight years old. Thus, Noah was nine years old by the time of the hearing in the chancery court, [Fn 6] certainly old enough to have become accustomed to his name.
[Fn 6] Noah is now ten years old.
¶19. Moreover, Lana presented some evidence to support her contention that it was not in Noah’s best interest to change his surname. Lana and Sharon could not and did not testify that a name change would result in certain harm to Noah, but that is to be expected. In most cases, it will be difficult, if not impossible, for a mother to produce objective evidence that a name change will cause a specific, certain harm to her child. Nonetheless, Lana and Sharon provided legitimate reasons why it would not be in Noah’s “best interest” to change his name. Indeed, at the conclusion of the hearing, the chancery court recognized that “certainly” there were “some reasons that [Lana] could point to and say it would be in [Noah’s] best interest to leave [his name] as it is.” Given Noah’s age and history of behavioral issues at school, it was reasonable for Lana and Sharon to be concerned that a sudden name change could have a negative impact on him.
¶20. On the other side of the scale, Bennett presented no reason or evidence that it would be in Noah’s best interest to change his name at age nine. Bennett stated only, “I want him to carry . . . his family name . . . . My father passed my name down to me, and I want to pass it down to my children.” Bennett’s feelings are understandable, but he failed to act on them—or even pursue visitation with Noah—until Noah was nearly eight years old. More important, Bennett’s desire to pass on his family name is not the equivalent of Noah’s best interest. “[T]he child’s best interest” is not the same thing as “either parent’s best interest.” Vassar v. Vassar, 228 So. 3d 367, 375 (¶26) (Miss. Ct. App. 2017). Put simply, “[t]he relationship of parent and child is not for the benefit of the parent, but of the child.” Reno v. Reno, 253 Miss. 465, 475, 176 So. 2d 58, 62 (1965) (quoting J.W. Bunkley Jr. & W.E. Morse, Amis on Divorce and Separation in Mississippi § 8.01 (2d ed. 1957)).
¶21. In summary, Lana presented legitimate reasons that it was not in Noah’s best interest to change his name, while Bennett presented no reason that a name change would benefit Noah. Lana met her burden of proof under Rice, and the chancery court manifestly erred to the extent that it concluded otherwise. Accordingly, we reverse and render the judgment of the chancery court insofar as it ordered Noah’s surname to be changed. [Fn omitted] Noah’s last name shall remain Olson.
Westbrooks dissented, joined by Greenlee and Irving, taking the position that Lana had not met her burden of proof.
It would appear that Bennett’s lengthy delay in bringing an action cost him in this case.
Oh, and a cite to Bunkley and Morse is a nice touch. Some long-established principles are fresh even in quotations more than 60 years old.
January 23, 2019 § Leave a comment
We visited the Sheridan v. Cassidy COA case yesterday, in which the court affirmed a chancellor’s decision not to allow the testimony of a twelve-year-old boy to testify as to his preference. There was a dissent.
In the same case, the chancellor also refused to allow either the twelve-year-old son or his eight-year-old sister to testify. The COA affirmed:
¶24. Farra also contends that the chancellor erred in summarily excluding testimony from the twelve-year-old son and the ten-year-old daughter. Farra argues that the chancellor was required to conduct a hearing pursuant to Jethrow v. Jethrow, 571 So. 2d 270 (Miss. 1990). In Jethrow, the supreme court stated that “there can be no per se prohibition against a child witness testifying in a divorce case between his parents.” Id. at 273. There, the mother wanted to call the parties’ eight-year-old child “as a witness to testify to acts of violence against her by [the father],” but the chancellor refused. Id. at 271. The supreme court reversed, concluding that certain procedures should be followed in deciding whether to
exclude “the testimony of a child witness of tender years in a divorce proceeding.” Id. at 273. First, determine if the child is competent to testify and second, determine whether it is in the child’s best interests to testify. Id. at 273-74.
¶25. Here, the chancellor did not conduct a Jethrow hearing, and neither party requested one. The chancellor did state that it was not in the children’s best interest to testify because he thought pitting the children against the parents would be detrimental to the children. He stated, “That is not fair. This is not their fight, they didn’t start it. They didn’t cause the divorce, they are the victims of it.” The chancellor further expressed his opinion that the children had been coached, so any testimony would be unhelpful. In this instance, we find no abuse of discretion by the chancellor.
If the law is that “there can be no per se prohibition against a child testifying,” then it would seem that the only way to document a refusal to allow it would be to conduct a Jethrow examination. For my part, I seldom do that with children who are in their late teens unless there is obvious immaturity, or some condition such as autism or low intelligence, or obvious intimidation. I would almost certainly conduct a Jethrow examination with an eight year old, but whether to do so with a twelve year old would depend on my assessment of the child’s maturity and mental and emotional health. If a party specifically requests a Jethrow examination, I would likely do it.
One caution: Notice that the COA pointed out that no party had requested a Jethrow exam, and then went on to uphold the judge’s findings without it. That signals to me that, if you do not request the Jethrow exam, you may well be stuck with whatever the judge’s conclusions are about whether the child or children should testify.
January 22, 2019 § Leave a comment
Most chancellors do not like having the children testify in litigation between the parents. Among other objectionable things, it subjects them to stresses that they are often too young to bear, it forces them to choose sides, and it subjects them to a tug-of-war between the parents.
In the modification case between Farra Sheridan and her ex-husband, James Cassidy, Farra wanted to call her twelve-year-old son as a witness to state his preference, and both he and his eight-year-old sister on the merits, but the chancellor refused, stating that he believed the children had been coached and that pitting the children would not be in their best interest. He said, “That is not fair. This is not their fight, they didn’t start it. They didn’t start the divorce. they are victims of it.” Farra appealed.
In Sheridan v. Cassidy, handed down December 11, 2018, the COA affirmed. On the issue of the preference testimony of the 12-year-old, Chief Judge Lee’s majority opinion read:
¶21. Farra argues that the chancellor committed reversible error by refusing to allow her twelve-year-old son to state a preference. 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.
(Emphasis added). “[T]he chancellor is not bound by the election of a minor child.” Floyd [v. Floyd], 949 So. 2d  at 30 (¶12) [(Miss. 2007)]. But, if a chancellor declines to follow a child’s preference, he must place the reasons in the record. Id.
¶22. During the hearing, Farra asked that the twelve year old be allowed to state his preference. The chancellor declined this request, stating that based upon prior testimony, he believed the child had been coached by Farra. The chancellor allowed Farra to make a proffer regarding the twelve year old’s testimony. The proffer was as follows:
The twelve year old loves his father, loves his mother, would love to spend time with his father. Would prefer to be in Arkansas where he has friends, where he has extended family, where he likes to do things in Arkansas in the proximity to other places that they can go in Arkansas, outside of Benton, Little Rock, etc. And all of the things that are available there that are not in Oxford. . . . He seems to think that there is a lot of stuff to do around Arkansas that is not available here.
¶23. In his Albright analysis, the chancellor stated that he did not allow the child to testify because he had concerns that Farra had coached the child on what to say. The chancellor further stated that although this child wanted to live with Farra (based upon the proffer), “the preference of the child in this situation [did] not have much bearing on the Court with all of the factors that I have gone over thus far.” Considering that the majority of the Albright factors favored James, we find no abuse of discretion in this instance. This issue is without merit.
Affirmed on that point by the majority, but Carlton dissented, joined by Griffis and Fair, and Tindell in part:
¶27. I respectfully dissent. The chancellor abused his discretion in failing to allow the twelve-year-old son to testify regarding his preference as to custody. Anderson v. Anderson, 961 So. 2d 55, 59-60 (¶¶7-12) (Miss. Ct. App. 2007). In Anderson, this Court found that the chancery court abused its discretion in a child custody modification hearing when the chancellor failed to allow the children to testify as to their custodial preference, effectively preventing the mother from presenting her case-in-chief prior to the court entertaining the father’s motion for an involuntary dismissal under Mississippi Rule of Civil Procedure 41(b). Id.
¶28. Similarly, the chancellor’s failure to hear the testimony of the twelve-year-old child in this case not only prevented him from expressing his custodial preference, but also denied Farra the right to present her child as a witness regarding a material change in circumstances. I recognize that the version of section 93-11-65 in effect at the time Anderson was decided has since been revised to slightly weaken the child’s right to choose his custodial parent. [Fn 3] Relevant here, however, is that under either version of the statute, and under the applicable case law, a parent is entitled to present a child’s testimony regarding parental preference for custody in order to demonstrate a material change in circumstances. Anderson, 961 So. 2d at 59-60 (¶¶7-12); see also Boyd v. Boyd, 83 So. 3d 409, 418 (¶29) (Miss. Ct. App. 2011) (mother allowed to present daughter’s preference testimony).
[Fn 3] In Anderson, section 93-11-65 (Rev. 2004) provided that “any . . . child who shall have reached his twelfth birthday shall have the privilege of choosing the parent with whom he shall live.” (Emphasis added). The current statute, also in effect at the 2016 child custody modification hearing in this case, provides that if the chancellor finds the two parties fit and proper, then “the chancellor may consider the preference of a child of twelve . . . 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.” Miss. Code Ann. § 93-11-65 (Rev. 2013)(emphasis added). The statute further provides that “[t]he 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.” Id.
¶29. In short, although under section 93-11-65 the chancellor does not have to honor the twelve-year-old child’s preference, see, e.g., Floyd, 949 So. 2d at 30 (¶12), the mother has a right to present the evidence at the custody hearing. The chancellor abused his discretion in this case by declining Farra’s request to present her twelve-year-old son’s testimony on this issue. I maintain that this case must reversed and remanded due to the chancellor’s abuse of discretion in refusing to allow the twelve-year-old son to state his preference on the record.
Here, because “a majority of the Albright factors favored” the father, the majority found no error.” That won’t always be the case, however. It’s not a good idea for a judge to curtail a party’s proof without overwhelming justification. I think this was a borderline situation; the judge found the child’s credibility dubious and did not believe it was in the child’s best interest to testify.
My opinion is that a Jethrow examination substantiating those conclusions would have made the judge’s ruling airtight.
And what about the judge’s ruling that the two children were not allowed to testify on the merits? You’ll have to wait until tomorrow.
January 16, 2019 § Leave a comment
Modification of custody may be based on a finding of changed circumstances that arises from a totality of the circumstances in which the child is living.
That is what happened in the case of Farra Sheridan in which the chancellor modified custody from her to her ex-husband, James Cassidy, based on multiple factors. Unhappy with the trial judge’s decision, Farra appealed.
In Sheridan v. Cassidy, a December 11, 2018, decision, the COA affirmed. Chief Judge Lee wrote the majority opinion:
¶10. “[I]n modification cases, as in original awards of custody, we never depart from our polestar consideration: the best interest and welfare of the child.” Johnson v. Gray, 859 So. 2d 1006, 1013 (¶33) (Miss. 2003) (internal quotation marks omitted). However, modification issues are different from original custody determinations. In order to succeed on a request for modification, “the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003). In Riley v. Doerner,
677 So. 2d 740, 744 (Miss. 1996), the supreme court held:
[W]here a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment. . . . A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.
¶11. The chancellor found the following amounted to a material change in circumstances: Farra’s involvement with a married man; her numerous violations of the PSA, including allowing her boyfriend to spend the night while the children were present; her decision to abuse alcohol while taking prescription medications; her poor financial decisions; her refusal to co-parent with James; her inciting the children to access private information on James’s electronic devices; the children’s school absences and tardies related to weekend trips to Arkansas; the children’s living situation while visiting Arkansas; and issues with one child’s failure to complete school assignments. The chancellor also had concerns about Farra’s credibility.
¶12. We cannot find that the chancellor’s findings regarding a material change in circumstances were manifestly wrong or clearly erroneous …
I include this case only to illustrate for you how a chancellor may view the living situation of the custodial parent, and how Riley v. Doerner may come into play.
November 20, 2018 § Leave a comment
You can register a judgment or order for custody (hereinafter referred to as a “judgment”) rendered by another state in Mississippi by following MCA §93-27-305. Here are the highlights:
- You can register the judgment with or without a simultaneous action for enforcement (93-27-305(1)).
- A pleading, petition, motion, or even a letter requesting registration is filed with the chancery clerk of any county in the state (93-27-305(1) and (1)(a)).
- Two copies, including one certified copy, of the judgment, accompanied by an affidavit that to the best of the affiant’s knowledge and belief the judgment has not been modified, must also be filed (93-27-305(1)(b)).
- The name and address of the person seeking registration, as well as that of any parent or person in loco parentis who was awarded custody in the judgment must be stated in the petition (93-27-305(c)); however, the confidentiality protections of 93-27-209 are available to persons who qualify.
- Notice is served on the person(s) named in 1(c) to provide them an opportunity to contest the registration (93-27-305(2)(b)).
- The notice must state that the judgment: (1) will be enforceable on the date of registration the same as a Mississippi domestic judgment (93-27-305(3)(a)); (2) a hearing to contest registration must be requested within twenty days of the date of service of the notice (93-27-305(3)(b)); and (3) failure to contest registration will result in confirmation of the judgment’s custody determination, and further contest will be barred (97-27-305(3)(c)).
- A person wishing to contest registration must request a hearing within twenty days of service of notice (93-27-305(4)).
- At a hearing to contest registration, the court shall confirm registration unless the contestant establishes that either: (1) the issuing court did not have jurisdiction under the UCCJEA (93-27-305(4)(a)); or the custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction per the UCCJEA (93-27-305(4)(b); or (3) the contestant was entitled to notice per 93-27-108 in the originating court, but was not afforded that notice (93-27-305(4)(c)).
- If a timely request for hearing is not filed, the court orders that the registration is confirmed as a matter of law, and all persons who were served with notice are notified of the confirmation (93-27-305(5)).
- An order of confirmation precludes further contest of any matter that could have been contested at the time of confirmation of registration (93-27-305(6)).
In Edwards v. Zyla, 207 So. 3d 1232 (Miss. 2016), the MSSC held that chancery court, not county court, was the proper forum for registration of a foreign custody determination.
October 9, 2018 § Leave a comment
Justin Brown and Kristin Anklum had a child together, but were never married. They got into a custody dispute that brought them before a chancellor. Both petitioned the court for custody.
After three days of trial, the judge awarded them joint physical and legal custody. Brown appealed, complaining that it was error for the court to award joint custody.
In Brown v. Anklum, decided July 24, 2018, the COA affirmed. Judge Westbrooks wrote for the majority:
¶11. Brown argues that the parties have to make an express “application” asking for joint custody in order for the chancellor to order joint custody. However, Brown does not cite any authority in favor of his argument outside of Mississippi Code Annotated section 93-5-24(2)-(3) (Rev. 2013). This code section states in part:
(2) Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.
(3) In other cases, joint custody may be awarded, in the discretion of the court, upon application of one or both parents.
¶12. This Court has held that the application of joint custody may be made by one or both parents if the arrangement is in the best interest of the child. See Crider v. Crider, 904 So. 2d 142, 148 (¶16) (Miss. 2005). As Anslum pointed out in her brief, in irreconcilable differences cases the court may award joint custody when the parties request the court to determine custody. The Mississippi Supreme Court has held that “when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of ‘joint application’ in § 93-5-24(2).” Id. at 148 (¶15). Thus, a mere request to determine custody satisfies the “application” requirement. Id.
¶13. Accordingly, we find this issue is meritless.
Not a lot to ponder here, but it is a reminder that joint custody is almost always in the picture when you are litigating custody.
I wonder whether the application of law would be different if both parties pled or stipulated that joint custody would not be in the child’s best interest. My guess: that would not rule out an award of joint custody if the chancellor found that to be in the child’s best interest.
Judge Carlton, joined by Tindell, disagreed with the majority that the chancellor’s findings in favor of joint custody were supported by the evidence. You might find some of her rationale useful if you find yourself on that side of a similar equation.
July 25, 2018 § Leave a comment
Whenever chancellors gather the topic often arises that lawyers simply fail to put enough proof in the record to support findings by the court. No R41(b) motion is made, and the judge is left to sort through the incomplete record to come to a conclusion.
That is more or less what happened when Amy Voss sued Daven Doughty for modification of custody or visitation. The two had litigated custody only a month previously and the court had awarded Amy custody of their daughter Aqua, and awarded Daven visitation and enjoined smoking around the child.
After a trial, the chancellor denied Amy’s prayer to modify visitation. She appealed.
In Voss v. Doughty, decided April 10, 2018, the COA affirmed. Judge Wilson wrote for the unanimous court:
¶18. Voss also argues that the chancellor erred by denying her petition to modify and limit Doughty’s visitation. The chancellor denied Voss’s petition after finding that there had been no “change in circumstances” since the original visitation order. The chancellor’s ruling arguably misapplied the law concerning modification of visitation. “All that need be shown [to obtain a modification of visitation] is that there is a prior decree providing for reasonable visitation rights which isn’t working and that [modification] is in the best interests of the children.” Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). On this issue, “our familiar change in circumstances rule has no application.” Id. (citation omitted).
¶19. Nonetheless, we affirm on this issue because no evidence was presented that the visitation schedule was not working or was not in Aqua’s best interest. Voss petitioned the court to modify custody only thirty-six days after the original visitation order was entered. A “visitation plan should be given an opportunity to work.” Jones v. McQuage, 932 So. 2d 846, 849 (¶14) (Miss. Ct. App. 2006) (holding that there was no evidence that a visitation schedule was not working four months after its entry). Voss did not give the original visitation plan in this case an opportunity to work.
¶20. Moreover, Voss failed to prove that the original visitation plan was not working. She alleged that it was not working only because Aqua was being exposed to smoke while she was with Doughty. A representative from a drug testing company testified that a January 6, 2016 hair follicle test showed that Aqua had absorbed and metabolized nicotine from secondhand or thirdhand cigarette smoke. However, the witness testified that the test detected nicotine absorption dating back six months, so it could have reflected exposures prior to the chancery court’s prior custody order. The witness also testified that the test did not identify when or where the exposure occurred or “whether it was once, twice, or three times”—only that it occurred sometime in the prior six months.
¶21. A pediatric pulmonologist, called by Voss as an expert witness, testified that “any nicotine level in your body is significant.” He opined that Aqua’s “chronic runny nose,” coughing, congestion, and other “upper respiratory” issues “could be attributable to . . . exposure to [cigarette] smoke.” However, he acknowledged that “a lot of things” can cause such issues, that none of Aqua’s treating physicians have attributed these issues to exposure to cigarette smoke, and that Aqua does not have asthma. The witness had never seen or examined Aqua, and his opinions were based solely on a review of her medical records.
¶22. Doughty and Ashley admitted that they smoke, but both denied that they smoke in their house or in Aqua’s presence. They admitted that Ashley’s mother, who pays most of their bills and has paid some child support for Doughty, does smoke in her bedroom with the door closed. They denied that they allowed anyone to smoke in Aqua’s presence.
¶23. Obviously, parents should not expose their children to cigarette smoke. However, the evidence indicated that Doughty tried to protect Aqua from exposure, and there was no clear link between exposure and Aqua’s congestion, runny noses, and coughing. Especially given the short time between entry of the prior custody order and Voss’s petition to modify visitation, there was insufficient evidence that the visitation schedule was not working. We therefore affirm the chancellor’s denial of Voss’s petition to modify visitation.
Some random thoughts:
- The familiar material-change/adverse-effect rule does not apply in an action to modify visitation; all that needs to be shown is that the existing visitation order is not working.
- You have got to allow time for the order to prove to be unworkable. Not only was this a quick turnaround, it did not allow time for the expert to rule out pre-injunction behavior.
- Of course, no one is required to wait if there is a true emergency affecting the health or safety of the child. But there has to be a true peril, and it has to be imminent.
- Here, the proof offered by Amy did not rise to that level.
- Making sure that all of the elements get proven by competent proof is on you.