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.

Parental Actions Against the Best Interest of the Child and Remand

November 21, 2017 § Leave a comment

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

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

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

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

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

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

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

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

The takeaway here on this issue is twofold:

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

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

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

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

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

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

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

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

Joint Custody Outside of Divorce, Part Deux

November 15, 2017 § 1 Comment

Yesterday we visited the situation where the natural parents in a paternity suit were awarded joint custody of their child. It was deemed okay by the COA.

Today we consider whether the chancellor may award joint custody between paternal and maternal grandparents in a case where both are claiming custody due to unfitness of the natural parents. That’s what happened between Monica Darby (paternal) and Harold and Karron Combs (maternal).

The chancellor awarded the grandparents joint custody, and Monica appealed. The COA affirmed in Darby v. Combs on October 25, 2016. Monica filed a petition for cert, and the MSSC granted it.

On November 9, 2017, the MSSC affirmed the COA in Darby v. Combs. Justice Maxwell wrote for a 6-2 court, with Ishee not participating:

¶23. Chancellors have jurisdiction to make custody decisions. See Miss. Const. art. 6, § 159; see also Davis v. Davis, 194 Miss. 343, 12 So. 2d 435, 436 (1943). And their decisions must be made with an eye on the best interests and welfare of the child. Albright, 437 So. 2d at 1005; Carr v. Carr, 480 So. 2d 1120 (Miss. 1985) (extending the coverage of the Albright decision to all original custody decisions)). Here, the Court of Appeals correctly recognized this notion, explaining “[i]n a custody contest between third parties,where neither party has a superior right to custody of the child, the child’s best interests and welfare are the polestar consideration.” Darby, 2016 WL 6276610, at *7.

¶24. With Addie’s best interests in mind, and in light of his finding that Crystal and Andrew were unfit parents, the chancellor consulted Section 93-5-24(1)(e). This statute clearly permits third-party custody arrangements. Under Section 93-5-24(1)(e):

Upon a finding by the court that both of the parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child the court may award physical and legal custody to:

(i) The person in whose home the child has been living in a wholesome and stable environment; or

(ii) Physical and legal custody to any other person deemed by the court to be suitable and able to provide adequate and proper care and
guidance for the child.

Miss. Code Ann. § 93-5-24. So, based on his finding of parental unfitness, the chancellor was statutorily empowered to fashion a third-party-custody award. Monica does not seriously contest the chancellor’s authority to grant third-party custody. What she argues is that the chancellor lacked authority to craft a third-party joint custody award.

¶25. As support, Monica latches on to the use of the word “person” and the phrase “any other person” in Section 93-5-24(1)(e)(i) and (ii). She insists this singular language makes clear that only one person or party may receive custody. So as she sees it, joint custody awards are not allowed between third parties under Section 93-5-24(1)(e)(i) and (ii). She suggests the definition of joint physical custody in Section 93-5-24(5)(c) supports her interpretation. [Fn omitted] We disagree.

¶26. First, it is obvious Subsection 93-5-24(5)(c) contemplates joint physical custody between “parents.” And here, the chancellor deemed Addie’s parents unfit for custody.

¶27. Second, Monica overlooks—and our statutory law instructs—that “[w]ords used in the singular number only, either as descriptive of persons or things, shall extend to and embrace the plural number . . . except where a contrary intention is manifest.” Miss. Code Ann. § 1-3-33 (Rev. 2014). And we see no contrary intention manifested within the statute.

¶28. Indeed, Section 93-5-24(5) concludes by explaining that “[a]n award of joint physical and legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child and . . . the parents or parties shall confer with one another in the exercise of decision making rights, responsibilities, and authority.” So, Section 93-5-24(5) suggests that joint physical and legal custody may be awarded to either parents or parties. Thus, we find no legal error in the chancellor’s statutory application.

¶29. As we recognized in Crider, the overarching consideration in Section 93-5-24 is that “[c]ustody shall be awarded as follows according to the best interests of the child.” Crider v. Crider, 904 So. 2d 142, 144 (Miss. 2005). And here, we cannot say the chancellor’s custody award was against Addie’s best interest.

II. Cooperation for Joint Custody

¶30. Monica next suggests the chancellor erred by awarding joint custody without making an express finding that the parties could cooperate as Addie’s joint custodians. We disagree. As discussed, the chancellor carefully walked through the Albright factors [Fn omitted] and crafted a
workable third-party custody arrangement.

¶31. Though joint custody between third parties may not typically be preferable, this is a difficult and, as the chancellor put it, “unusual” case. Facing the realities of obviously unfit parents and a neglected child, the chancellor did what he was duty bound to do—he consulted Section 95-5-24 and keyed in on the child’s best interest and welfare. [Fn omitted] The severity of Andrew’s drug problems, mental-health issues, and violent tendencies and Crystal’s extensive drug and alcohol abuse required the chancellor look elsewhere for custody arrangements.

¶32. When parents cannot agree on who should have primary custody of the children, this Court has suggested “it is probably the better course for the chancellor to make that decision for them reserving joint custody for parents who are willing to work together to make joint custody feasible.” Waller v. Waller, 754 So. 2d 1181, 1184 (Miss. 2000) (emphasis added). [Fn omitted] The dissent basically stretches this language into a new affirmative requirement, essentially grafting a non-Albright factor onto the Albright test. And it concludes remand is necessary because the chancellor did not make an “express determination of whether the parties can cooperate in exercising joint custody.” We agree this consideration is certainly relevant. But by no means did Waller create a new mandate that chancellors make this “express determination,” or else a joint-custody award and Albright analysis will be legally lacking and require remand for additional findings. Rather, the Waller court, citing an American Law Report on joint-custody awards, suggests in a footnote that chancellors make joint custody awards where the parties are able to cooperate. Id. at 1184 n.1 (citations omitted).

¶33. Here, the chancellor rejected the GAL’s recommendations and carefully weighed the Albright factors and statutory law, deciding a joint-custody award was “the safest route” to protect Addie from potential violence. He had no qualms that Monica and the Combses could carry out this arrangement. If he had felt a joint-custody arrangement was unworkable, he would not have fashioned one. After review, we find no error in the chancellor’s joint custody award.

Afterthoughts:

  • Joint custody keeps embracing more and more relationships. It goes well beyond the marital relationship based on yesterday’s and today’s reported decisions.
  • I included the discussion about ability to cooperate because I think there’s been some confusion over whether it is a threshold requirement. To me it has been more of a disqualifying factor; i.e., where the evidence is clear that there can be no cooperation, I rule joint custody out. I do not require affirmative proof of cooperation, however, before awarding joint custody.
  • One form of joint custody I am seeing — and strongly resisting — is joint custody (50-50) in PSA’s with no child support. I think joint custody is being used that way in many cases as a “business decision” with non-payment of child support as a bargaining chip. Joint custody, however, should be about providing the safest, most secure, most nurturing environment in the best interest of the child rather than a justification for no child support. When you link money with the joint custody arrangement, the sweet aroma changes to a foul odor.  I don’t like it a bit. And, for you lawyers who push this idea, you are creating a new, potent avenue for “divorce blackmail” that can blow up in your face when you are on the opposite side of the issue.

Joint Custody Outside of Divorce

November 14, 2017 § 1 Comment

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

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

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

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

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

¶25. The chancellor’s judgment is affirmed.

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

The Right to Confrontation

November 6, 2017 § Leave a comment

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

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

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

The Confrontation Clause of the Sixth Amendment

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

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

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

Article 3, Section 25 of the Mississippi Constitution

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

Harmless-Error Analysis

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

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

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

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

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

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

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

An Extremely Useful UCCJEA Tool

October 31, 2017 § Leave a comment

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

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

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

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

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

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