Child Custody | The Better Chancery Practice Blog

Don’t Overlook the Practicalities when Dealing with Visitation

January 29, 2014 § 1 Comment

When Wesley and Janet Jaggers got their irreconcilable differences divorce in April, 2004, Janet got custody, and Wesley got visitation.

Soon afterward, only three months after the divorce, they agreed to a modification judgment that included the following language:

[E]ach parent shall allow the children to attend and participate in the scheduled extra-curricular activities of each child, including baseball, speech therapy, etc., it being the intention of this paragraph that the children’s regular schedules be maintained so as to provide as great a degree [of] continuity as possible.

That language sets a lofty aspiration for the parties, and its spirit is certainly commendable. But it leaves some questions unanswered, such as: who does the scheduling; what are the limits on extra-curricular activities; who gets to determine what the children’s regular schedules are?

In time conflict arose between the parties over the fact that Janet scheduled baseball games, out-of-town tournaments, and other activities of the children during Wesley’s visitation time. Wesley petitioned the court for relief.

Wesley argued that Janet’s conduct violated his sacrosanct parental right to visitation without interference. Janet invoked the polestar best-interest-of-the-child principle. Immovable object meet irresistable force.

The chancellor fashioned a remedy he deemed to be in the best interest of the children, providing for Wesley to have make-up visitation if the children’s travel schedule interfered with his visitation. The chancellor relied heavily on the parties’ own language adopted in the agreed modification judgment. On appeal, the COA affirmed in Jaggers v. Magruder, handed down January 7, 2014, deferring to the chancellor’s considerable discretion in this area.

A few desultory thoughts:

I wonder whether more attention to detail in that modification judgment might have produced a different result, or even avoided this litigation entirely. As a lawyer, you have a considerable body of experience to draw on when you draft language to solve a client’s legal problem. You know from experience what situations give rise to certain kinds of problems. Bring that experience to bear when advising your client.
I think it’s a good idea to avoid aspirational language in agreed judgments and PSA’s. Language like “The parties agree that they will do all in their power to foster good feelings and to encourage love and devotion between parent and child” just seems to me to be a recipe for future litigation.
Address the practicalities in every order or PSA dealing with visitation. Who is responsible to pick up and return? What times? Who may accompany or take the place of the visiting parent? Who decides about scheduling extra-curricular activities during visitation time? What are the conditions for make-up visitation? Yes, I know that the parties have to bring some good faith to the table, but you can ward off some bad behavior based on your experience. And I know, too, that no one can anticipate every conceivable problem, but I am not suggesting that you address every conceivable problem — only the ones you shuold reasonably anticipate you can avoid in advance based on your experience.
The issue of the boundaries of the parents’ respective rights vis a vis visitation is one of the thorniest and most difficult to resolve for any chancellor. It’s as hard for a chancellor to resolve as it is for the lawyer to offer advice. That’s because of the competing equities that almost always have almost equal weight. I am glad that the appellate courts leave these issues largely in the discretion of the chancellor rather than conjuring up formulaic solutions that don’t fit the nuances in most situations.
This case is yet another in which the chancellor did not accept or implement the recommendation of the GAL. Keep in mind that the chancellor is never bound by the GAL’s recommendations.

Deference to the Chancellor’s Findings of Fact

January 23, 2014 § 1 Comment

Language along the following lines opens the great majority of appeals from chancery court rulings:

“We employ a limited standard of review on appeals from chancery court. Miller v. Pannell, 815 So. 2d 1117, 1119 (¶9) (Miss. 2002). We will not disturb the factual findings of a chancellor so long as the chancellor’s findings were supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Biglane v. Under The Hill Corp., 949 So. 2d 9, 13-14 (¶17) (Miss. 2007). ‘We use a de novo standard when analyzing questions of law.’ Id.”

Indeed, that is the very language of the COA’s decision in the case of Legacy Hall of Fame, Inc., et al. v. Transport Trailer Service, et al., decided January 21, 2014. In that case, Judge Fair’s opinion for the majority affirmed the chancellor’s ruling denying Legacy’s claim that its officer was non compos mentis when he executed a contract for the corporation. Judge Fair stated in response to the appellant’s argument that the chancellor had failed to give proper weight to the testimony of its witness, Dr. White, on the issue of competence:

¶21. This Court’s “standard of review is indeed deferential, as we recognize that a chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is in the best position to judge their credibility.” In re Estate of Carter, 912 So. 2d 138, 143 (¶18) (Miss. 2005) (citing Culbreath v. Johnson, 427 So. 2d 705, 708 (Miss. 1983)).

¶22. The chancellor made it clear in his bench opinion that he was considering Dr. White’s testimony. We find that the chancellor was not clearly erroneous in finding that Legacy Hall did not overcome the presumption of competency. Therefore, we affirm the chancellor’s decision.

That same day the COA handed down its decision in the case of Borden v. Borden, affirming a chancellor’s award of custody to Mr. Borden based on an Albright analysis. The appellant argued that the chancellor was in error in how he analyzed the Albright factors, and in how he reached his conclusions based on the proof. Judge Roberts, for the majority, explained:

¶16. The record clearly shows that the chancellor carefully weighed each Albright factor, and he acted within his discretion when he held that six of those factors favored Shannon, as opposed to only one that favored Mary Jane. Although reasonable minds could weigh the evidence and reach different conclusions, the chancellor did not abuse his discretion when he applied the Albright factors. The dissent would reverse the chancellor’s judgment and award Mary Jane custody of the children, thus rendering a judgment in Mary Jane’s favor. With utmost respect for the dissent, our standard of review does not include reweighing the evidence or substituting our opinion for the chancellor’s. It is the chancellor’s responsibility to “hear the evidence, assess the credibility of the witnesses, and determine ultimately what weight and worth to afford any particular aspect of the proof.” Tritle v. Tritle, 956 So. 2d 369, 373 (¶8) (Miss. Ct. App. 2007). “Even if we would have given greater weight to different testimony, so long as substantial credible evidence supports the chancellor’s decision, we will not substitute our opinion for the chancellor’s.” Id. The chancellor could have certainly found that Mary Jane was evasive during her testimony as an adverse witness. We find no merit to Mary Jane’s claim that the chancellor awarded Shannon primary custody of the children as a means to punish her for her inappropriate conduct with other men or her false allegations of child abuse. Thus, we affirm the chancellor’s award of primary custody to Shannon.

That is the way it is supposed to work: as long as the chancellor’s findings are based on substantial credible evidence in the record, they should be undisturbed on appeal if they are based on a correct application of the law.

The MSSC requires the COA to review the chancellor’s findings and to make a determination whether the chancellors’decision was supported by substantial credible evidence. That necessitates an examination of the record and scrutiny of the trial judge’s findings. But it does not mean that the appellate court becomes a second-line chancellor making its own conclusions on the facts. That is the chancellor’s job. You might keep that in mind the next time you’re confronted with the decision whether to take an appeal from a chancellor’s findings of fact.

The Not-so-Illusory Agreement

January 16, 2014 § Leave a comment

It has long been the law in Mississippi that parties effect extra-judicial modifications at their peril, and that chancery courts are neither designed or equipped to enforce such agreements.

Only last September we read here about Donald Brewer and Penny Holliday, who had agreed to modify their divorce judgment vis a vis custody and support. They had lawyers incorporate their agreement into an agreed judgment, and they proceeded to conform to the agreement in nearly every respect for several years. Only problem is, no one ever saw to it that the agreed judgment was entered. Both Donald and Penny believed that it had been entered. When the parties had a falling out and wound up back in court, the chancellor refused to enforce the agreement, notwithstanding the course of compliance, and found Donald in contempt. The COA affirmed, as you can read in the previous post.

Donald in due course persuaded the MSSC to take another look, and in Brewer v. Holliday, decided by the MSSC on January 9, 2013, the high court reversed. Justice Dickinson’s opinion states, in part:

¶14. This Court has recognized that, at times, equity may “suggest ex post facto approval of extra-judicial adjustments in the manner and form in which support payments have been made.” [citation omitted] For instance, in Alexander v. Alexander, this Court held that equity required crediting a father for payments of child support made directly to the child – once the child moved in with him – instead of to the mother. [citation omitted] And in Varner v. Varner, we explained that “the father may receive credit for having paid child support where, in fact, he paid the support directly to or for the benefit of the child, where to hold otherwise would unjustly enrich the mother.” [citation omitted] Noncustodial parents pay child support to custodial parents for the benefit of the child, not the parent, [citation omitted] and that support belongs to the child, not the custodial parent. [citation omitted]

[Note: read the opinion at the link for the case citations. Copying and pasting numerous footnotes is too cumbersome for this blog]

The court went on to remand the case for the chancellor to consider the fact that the child resided with Donald, à la Varner, finding that the arrangement should have been taken into account by the judge at the original hearing.

There is no airtight rule against enforcement of extra-judicial modifications. Each case must be considered on its own merits, and the equities must be weighed. Here, the high court considered that it would be best for Donald’s equities to be taken into account, rather than closing the door on enforcement of the agreement. No doubt the parties’ ignorance of the fact that the judgment had never been entered, coupled with their compliance with it for a time, had persuasive weight in this particular case.

An Unusual In Loco Parentis Case

January 8, 2014 § 6 Comments

Only last month we discussed the MSSC decision in Vaughn v. Davis, which dealt with the rights of a natural parent as opposed to those of a party who has stood in the shoes of the parent and assumed parental responsibility, a status we refer to as in loco parentis. The court in that case said, “‘[t]he doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption,’ although it may be a factor in determining whether the presumption has been rebutted [citation omitted].”

Vaughn was a case in which the maternal grandmother had acted in loco parentis toward the child after the death of the child’s mother. When the child’s father showed up to claim the child, the grandmother balked, and the litigation ensued. Since the father was not shown to have abandoned or deserted the child, and had not been guilty of unsuitable conduct, his rights trumped those of the grandmother. The fact pattern in Vaughn is fairly typical for these type cases.

How does the Vaughn rationale apply, however, in a case where the in loco parentis party believed in good faith that he was the father, but was later proven not to be when paternity was questioned, and DNA testing proved that the in loco parentis party was not the natural father?

That was the question before the COA in JSW vs. AWR and TJS, decided on December 3, 2013, less than a month after the MSSC decision in Vaughn.

In JWS, Jake and Ann married when Ann was pregnant. Vanessa was the first child born, followed by Brett, a year and a half later. Before she married Jake, Ann had a one-night stand with Tommie. Tommie believed he could be the father of Vanessa, but he took no action because he knew of Jake’s and Ann’s relationship.

In 2007, when Vanessa was nearly three years old, Tommie’s mother called and inquired whether Vanessa might be his child. Ann denied it, but Jake decided to have a DNA test, which ruled him out as the natural father. Jake and Vanessa decided that he would continue to raise Vanessa as his own.

In 2009, Jake and Ann were divorced after five years of marriage. In the divorce, via PSA, the parties agreed that they would share physical custody, alternating weekly.

Less than a year after the divorce, the parties were back in court, fighting over custody and support. Before a hearing could be held in their contest, however, Tommie filed an action for an adjudication of paternity of Vanessa, and for custody, and visitation. A DNA test confirmed that Tommie was the natural father of Vanessa.

In his adjudication, the chancellor considered Jake and Tommie as the natural parents, and Jake as a third party. He found that, although Jake had acted in loco parentis, that alone was not enough to overcome the natural parent presumption. The chancellor awarded Ann custody, and Tommie visitation. Based on Jake’s in loco parentis status, the chancellor awarded him visitation commensurate with Tommie’s.

Jake appealed. Judge Maxwell’s opinion, for a divided court, is somewhat lengthy for this blog, but I think it’s worth your time to read. Here are the pertinent parts:

¶18. This is certainly a unique custody dispute. More typically, the custody dispute is between the two natural parents or between a parent and non-parent, such as a grandparent. In a child-custody determination between two natural parents, the chancellor considers the factors under Albright to determine which natural parent custody should be awarded custody, based on the best interest of the child. Lucas v. Hendrix, 92 So. 3d 699, 705 (¶17) (Miss. Ct. App. 2012) (citing Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983)). However, in a child-custody determination between a natural parent and a third party, such as a grandparent, the law presumes that it is in the best interest of the child for the natural parent to have custody. Id. at 705-06 (¶17) (citing McKee v. Flynt, 630 So. 2d 44, 47 (Miss. 1993)); see Lorenz v. Strait, 987 So. 2d 427, 434 (¶41) (Miss. 2008) (holding that, because“[g]randparents have no legal right [to] custody of a grandchild, as against a natural parent,” the natural-parent presumption applies in custody cases between grandparents and natural parents).

¶19. The natural-parent presumption is “not unassailable.” In re Custody of Brown, 66 So.3d 726, 728 (¶10) (Miss. Ct. App. 2011) (citing Vaughn v. Davis, 36 So. 3d 1261, 1264 (¶10) (Miss. 2010)). But for the third party to rebut this presumption, he must clearly show “that (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.” In re Smith, 97 So. 3d at 46 (¶9) (citing Vaughn, 36 So. 3d at 1264-65 (¶¶10-13); In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 429-30 (¶20) (Miss. 2009); Carter v. Taylor, 611 So. 2d 874, 876 (Miss. 1992)).

¶20. In this case, applying precedents concerning custody determinations between a natural parent and a grandparent, the chancellor categorized Jake as a third party. And because the chancellor also found Jake could not show Anne or Tommie had abandoned or deserted Vanessa, acted so immorally as to be detrimental to Vanessa, or was otherwise unfit, the chancellor imposed the legal presumption that it was in Vanessa’s best interest for Anne or Tommie to be awarded custody.

¶21. But there is a body of more relevant cases dealing with this very scenario—when a husband acts under the assumption that he is the father of the child his wife bore. And in these cases, the doctrine of in loco parentis has been used to put the presumed father on equal footing with the natural parent.

II. In Loco Parentis

¶22. In Griffith v. Pell, 881 So. 2d 184, 185 (¶¶2-3) (Miss. 2004), it came to light during divorce proceedings that the husband was not the biological father of the child born to the marriage. The chancellor granted partial summary judgment to the wife, finding the husband had no right to custody of the child. Id. at (¶3). The supreme court reversed based on the doctrine of in loco parentis, which the court found clearly applied. Id. at 186 (¶6). The supreme court held: “Merely because another man was determined to be the minor child’s biological father does not automatically negate the father-daughter relationship held by [the husband] and the minor child.” Id. Further, the supreme court cited with approval other jurisdictions that have held full-blown parental rights do not spring merely from a biological connection. In these cases, the burden is on the biological father to show a sufficient relationship with the child to entitle him to parental rights. Id. at 186-87 (¶9). The burden is not, as the chancellor found in Jake’s case, on the husband to prove that the biological father’s natural-parent presumption has been rebutted.

¶23. In fact, two years after Pell, in J.P.M. v. T.D.M., 932 So. 2d 760, 768 (¶21) (Miss. 2006), the supreme court rejected the very reasoning the chancellor used in this case to exclude Jake as a potential custodial parent. Just as in Pell, during divorce proceedings, the wife revealed that her husband, who had been the primary caretaker of the child since the separation, was not the biological father. Yet this time, the chancellor awarded the husband custody as the “father in fact.” Id. at 762 (¶1).

¶24. On appeal, the wife asserted that, because her ex-husband was not the biological father, he should be considered a third party in their custody dispute. The wife asked the supreme court to apply the line of cases holding that a third party “can only obtain custody” upon showing the natural parent has either abandoned the child, the natural parent’s conduct is so immoral as to be detrimental to the child, or the natural parent is mentally or otherwise unfit for custody. Id. at 767-68 (¶20-21) (citing Keely v. Keely, 495 So. 2d 452 (Miss. 1986); Sellers v. Sellers, 638 So. 2d 481 (Miss. 1994)). But the supreme court found “the instantsituation distinguishable” because, in the cases the ex-wife cited, the third parties “were an aunt and a grandfather, respectively,” whereas in J.P.M., the ex-husband had been the child’s “‘legal father’ since her birth.” Id. at 768 (¶21). “Thus, he ha[d] existing legal rights and obligations that the third parties in [the cases the wife cited] did not.” Id.

¶25. The case the supreme court found instead controlled was Pell and its particular application of the doctrine of in loco parentis. J.P.M., 932 So. 2d at 768 (¶21) (citing Pell, 881 So. 2d 184). So the court found the chancellor, by awarding the husband custody, had reached the right result, using the wrong legal doctrine. While rejecting that the husband was the “father in fact,” the supreme court found he still had parental rights springing from the doctrine of in loco parentis, as applied in Pell. J.P.M., 932 So. 2d at 768 (¶21)

¶26. In J.P.M., Presiding Justice Cobb wrote a specially concurring opinion expressing her concern that in loco parentis was too broad a doctrine to apply to these scenarios. Id. at 779-85 (¶¶64-87) (Cobb, P.J., specially concurring). Because it is not just deceived husbands that may stand in loco parentis, Justice Cobb advocated using the more factually tailored doctrine of equitable estoppel or equitable fatherhood as justification for the rebuttal of the natural-parent presumption. Id.

¶27. Justice Cobb’s warning proved to be prophetic. Eight years later, in In re Smith, grandparents argued that because they stood in loco parentis, as that doctrine is defined, they stood on equal footing with the natural mother. In re Smith, 97 So. 3d at 46-47 (¶4). The supreme court rejected this argument, finding that “[t]he doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption.” Id. at 47 (¶10). But the court clarified that it was not overruling Pell and J.P.M. Rather, those cases represented “very limited, unique situations” where “several facts” led to the rebuttal of the natural-parent presumption—the husbands’ standing in loco parentis being one of them. In re Smith, 97 So. 3d at 47 (¶11). Because the husbands also “had supported, cared for, and treated the child[ren] as their own,” because they had been required to pay child support (“with the burden should go the benefit”), and because “the biological fathers were not really in the picture,” the natural-parent presumption had been overcome. Id.

¶28. Here, the chancellor expressly found Jake stood in loco parentis. He also found Jake supported, cared for, and treated Vanessa as his own, even after he learned he was not her biological father—an action the chancellor found “quite admirable.” In the divorce proceeding, Jake had been ordered to pay half of Vanessa’s day-care expenses, and the only reason he did not have to pay Anne child support was that he shared equal custody time and expenses with her. The only difference between this case and Pell and J.P.M. is that, in those cases, the natural father either disclaimed any rights to the child or could not be conclusively established. See In re Smith, 97 So. 3d at 47 (¶11).

¶29. Based on the chancellor’s own findings of fact, we find Jake is in that “very limited, unique situation” where Pell and J.P.M. control. Thus, the chancellor erred by instead applying the line of cases where a third party can only rebut the natural-parent presumption by showing the natural parents had abandoned or deserted their child or were detrimentally immoral or otherwise unfit.

¶30. Because we find Jake had overcome the natural-parent presumption, he should have been considered on equal footing with Anne and Tommie in the chancellor’s Albright analysis. We reverse the custody award and remand for the chancery court to conduct an Albright analysis that includes Jake as a potential custodial parent.

So the case travels back to the chancellor to add Jake into the Albright mix and make a determination as to custody among the three parents: two natural and one in loco.

In the meantime, the appellees’ attorneys have filed for rehearing, and either party unhappy with the COA’s ultimate decision will likely ask for cert on the issue. That would be welcome, because any clarity the courts can bring to this head-spinning area of our law would be a great relief.

A Primer on Third-Party Custody

December 11, 2013 § 2 Comments

The cases on third-party custody can be confusing in their own right, but when one adds into the mix the cases where third parties acting in loco parentis also claim custody, it can become downright confusing.

The MSSC case of Davis v. Vaughn, decided November 21, 2013, includes a welcome exposition on the subject that you just might want to save for future reference. It stands for the proposition that a third party’s in loco parentis status, standing alone, is not enough to overcome the natural-parent presumption. Here is the key language from Justice Kitchen’s opinion for a unanimous court:

¶10. We first address Davis’s assertion that parties standing in loco parentis should be able to seek custody of the child without having to prove that the natural parent has relinquished his or her parental rights. The law recognizes that parents are the natural guardians of their children, and “it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.” In re Dissolution of Marriage of Leverock and Hamby, 23 So. 3d 424, 429 (Miss. 2009) (citing K.D.F. v. J.L.H., 933 So. 2d 971, 980 (Miss. 2006)). See also Miss. Code Ann. § 93-13-1 (Rev. 2013) (“The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education . . . . If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent.”). However, the presumption in favor of the parent may be rebutted by clear and convincing evidence that “(1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.” Smith, 97 So. 3d at 46 (citing Vaughn II, 36 So. 3d at 1264-65 (Miss. 2010); Leverock, 23 So. 3d at 429-30; Carter v. Taylor, 611 So. 2d 874, 876 (Miss. 1992)). If the natural-parent presumption is successfully rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child’s best interests. Id. (citing In re Custody of M.A.G., 859 So. 2d 1001, 1004 (Miss. 2003); Logan v. Logan, 730 So. 2d 1124, 1127 (Miss. 1998)).

¶11. A person in loco parentis is one who stands in place of a parent, having assumed the status and obligations of a parent. Favre v. Medders, 241 Miss. 75, 81, 128 So. 2d 877, 879 (Miss. 1961). “Any person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own child, is said to stand in loco parentis.” W.R. Fairchild Constr. Co. v. Owens, 224 So. 2d 571, 575 (Miss. 1969) (citing Favre, 128 So. 2d 877). In loco parentis status carries with it the same duties and liabilities that belong to a natural parent, including a right to custody of the child “as against third persons.” Favre, 128 So. 2d at 879 (emphasis added) (citations omitted).

¶12. Although this doctrine grants third parties certain parental rights, such rights are inferior to those of a natural parent. Thus, in a custody dispute between one standing in loco parentis and a natural parent, the parent is entitled to custody unless the natural-parent presumption is rebutted. Smith, 97 So. 3d at 46-47. The court may not consider granting custody to a third party, including one standing in loco parentis, unless and until the third party rebuts this presumption. In other words, “[t]he doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption,” although it may be a factor in determining whether the presumption has been rebutted. Id. at 46-47.

¶13. Giving preference to natural parents, even against those who have stood in their place, honors and protects the fundamental right of natural parents to rear their children. Vance v. Lincoln County Dep’t of Pub. Welfare, 582 So. 2d 414, 417 (Miss. 1991) (citing Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S. Ct. 438, 88 L. Ed. 645 (1944)). This concept is hardly new:

Nature gives to parents that right to the custody of their children which the law merely recognizes and enforces. It is scarcely less sacred than the right to life and liberty, and can never be denied save by showing the bad character of the parent, or some exceptional circumstances which render its enforcement inimical to the best interests of the child.

Moore v. Christian, 56 Miss. 408 (1879). See also Prince, 321 U.S. at 166 (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”) (citing Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, (1925)). Furthermore,

[A]s a consequence of this, it is presumed to be for the real interest of the child that it should be in the custody of its [natural parent], as against collateral relatives, and he, therefore, who seeks to withhold the custody against the natural and legal presumption, has the burden of showing clearly that the [parent] is an unsuitable person to have the custody of his [or her] child; or that, however moral a [person] may be, he [or she] had abandoned his child, contributing nothing to its support, taking no interest in it, and permitting it to remain continuously in the custody of others, substituting such others in his own place so that they stand in loco parentis to the child, and continuing this condition of affairs for so long a time that the affections of the child and of the foster parents have become mutually engaged to the extent that a severance of this relationship would surely result in destroying the best interest of the child.

Hibbette v. Baines, 78 Miss. 695, 29 So. 80 (1900). In other words, by allowing one’s child to remain in another’s custody, without providing any support to or pursuing a relationship with the child, a natural parent may, over time, relinquish his or her parental rights in favor of a de facto parent. More than a century later, the Court continues to recognize these legal maxims, declaring in Smith that “grandparents who stand in loco parentis have no right to the custody of a grandchild, as against a natural parent, unless the natural-parent presumption first is overcome by a showing of abandonment, desertion, detrimental immorality, or unfitness on the part of the natural parent.” Smith, 97 So. 3d at 47-48 (Ethredge v. Yawn, 605 So. 2d 761, 764, 766 (Miss. 1992)).

¶14. Davis has cited no authority to support our overruling this line of precedent. Instead, she relies on the facts in her case, arguing that, without a change in the law, there is no “real legal benefit” to the doctrine of in loco parentis. But, this Court clearly has recognized that the doctrine protects those standing in the shoes of the natural parents from outside intrusions, and these rights are constitutionally guarded. For example, in Britt v. Allred, 199 Miss. 786, 25 So. 2d 711 (1946), this Court held that parties who had taken in and cared for an orphaned child stood in loco parentis to the infant and could not be deprived of their “parental rights” without notice and an opportunity to be heard. Id. at 789-90 (emphasis added) (citations omitted). That decision noted that this holding was founded upon the “universal rule governing due process of law,” as recognized in our state and federal constitutions. Id. See U.S. Const. amend. XIV; Miss. Const. art. 3, § 14.

¶15. Judges often are faced with the difficult task of removing a child from a loving home in deference to a natural parent’s custodial rights. Even so, the law does not allow parental rights to supercede the best interests of the child. Parental rights, as is true of other fundamental rights, can be forfeited or taken away, and our law does recognize some means by which third parties can overcome the law’s preference of natural parents. See Smith, 97 So. 3d at 46 (listing the ways in which the natural-parent presumption may be rebutted). Consistent with longstanding legal authority, requiring Davis first to demonstrate that Vaughn had relinquished his right to parent his child, was not an undue burden. The law protects the best interests of the child by its recognition that a natural parent’s “liberty interest . . . in the care, custody, and management of their children and families,” is not an absolute right. G.Q.A. v. Harrison County Dep’t of Human Res., 771 So. 2d 331, 335 (Miss. 2000) (citing Santosky v. Kramer, 455 U.S. 745, 753-54, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).

This is the latest iteration of the Vaughn case. You can read an earlier post that mentions it here.

Non-DNA Parenthood

December 5, 2013 § 2 Comments

Disestablishing parentage has been a statutory procedure since 2011, when the legislature adopted MCA 93-9-10. I posted here an annotated version of the provision that set out my opinion of how to plead and prove it.

The MSSC at last was presented with an opportunity to address its application in the case of Jones v. Mallett, et al., handed down November 14, 2013.

Terence Jones was involved in a romantic relationship with Annette Mallett in 2000. Mallett gave birth to a child on August 22 of that year. Mallett says that she told Jones he was not the father when she learned of the pregnancy. Jones claims that he did not learn that he was not the father until after signing the paternity agreement and birth certificate application, or as much as four months later.

Jones was listed as the father on the birth certificate, and he signed it. In October, 2000, he and DHS entered into a “Stipulated Agreement of Support and Admission of Paternity,” which was approved by order of the chancery court.

In December, 2010, Jones had a DNA test performed, which excluded him as the father. He filed an action in chancery court to disestablish paternity, rather than a MRCP 60(b)(5) or (6) motion. The chancellor eventually dismissed Terence’s pleading, based on MCA 93-9-10. Terence appealed.

The supreme court brushed aside Terence’s argument that the agreement was the result of a “material mistake of fact” under MCA 93-9-10(3)(b), finding that “The facts as presented do not establish sufficient circumstances for the application of subsection (b).” [ ¶7 ]

Terence also argued that subsections (c) and (d) must be read together, mandating a finding that he meets the criteria for disestablishment, but the court rejected that position, pointing out that (c) relates to stipulations of paternity, and (d) relates to stipulations of support, which are two different things.

That last point is critical to the case because (c) says that the court may not set aside an agreement of paternity that has been approved by the court (as this one had been). Subsection (d), on the other hand allows disestablishment of parentage if he signed an agreement of support without knowledge that he is not the father of the child. That without knowledge language is significantly absent from (c). Since Terence had signed both, he had no wiggle room.

To me, the MSSC is sending the signal via this opinion that the statute will be strictly applied.

No doubt the considerable passage of time from the signing of the paternity agreement to DNA testing and the filing of suit and eventual court appearance figured into the unhappy result for Terence.

A Few More Suggested PSA Provisions

November 26, 2013 § Leave a comment

Here are a few more suggested PSA provisions you may find helpful, courtesy of David Rogers, Esq., of Pascagoula.

As with the previous post where I offered some suggestions for PSA provisions, there is no guarantee that any of these will be effective in any given court. They are suggestions for points you might want to cover in your own PSA’s. You may have better or other ways to state the same points.

Dealing with electronic contact in the digital age …

Telephonic/Digital Visitation – The parties agree and understand that should such means be available, during such times as the minor children is in the physical custody of the other party, the noncustodial party shall be allowed Telephonic and/or digital visitation with the minor children via telephone, electronic mail, instant messaging, video conferencing, social media, and other electronic means each and every even numbered day for a period of not more than 30 minutes total to begin no later than 7:30 p.m. in the time zone in which the minor children is/are located. Neither party shall be required to maintain electronic equipment and/or accounts necessary for said telephonic and/or digital visitation. Should the custodial parent incur and additional cellular fees as a result of the noncustodial parent’s telephonic/digital visitation, the non custodial parent shall reimburse the custodial parent for said fees within ten (10) days of receipt of the original bill from the custodial parent.

Responsibility for transportation within mileage limits …

Should the parties live within one-hundred (100) miles of each other, then Husband/Wife shall provide transportation for the minor children to and from each and every visitation.

Should the parties live apart by a distance greater than one-hundred (100) miles of each other, then the parties shall meet at a half-way point for all visitation exchanges and be responsible for their own transportation cost.

Should the parties live apart by a distance greater than (distance varies/check with client) two-hundred (200) miles of each other, then Husband/Wife’s every other weekend visitation shall be suspended until such time as the parties reside within two-hundred (200) miles of each other again.

In the event of military deployment per MCA 93-5-34 …

(a) The term “deployment” means the temporary transfer of a service member serving in an active-duty status to another location in support of combat or some other military operation.

(b) The term “mobilization” means the call-up of a National Guard or Reserve service member to extended active duty status. For purposes of this definition, “mobilization” does not include National Guard or Reserve annual training.

(c) The term “temporary duty” means the transfer of a service member from one military base to a different location, usually another base, for a limited period of time to accomplish training or to assist in the performance of a noncombat mission.

(d) The term “family member” means a person related by blood or marriage and may include, for purposes of this statute, a step-parent, grandparent, aunt, uncle, adult sibling or other person related by blood or marriage.

(e) When the custodial parent, receives temporary duty, deployment or mobilization orders from the military that involve moving a substantial distance from the custodial parent’s residence having a material effect on the non-custodial parent’s ability to exercise custody responsibilities:

(f) The non-deployed parent shall make the child or children reasonably available to the deployed parent when the latter parent has leave;

(g) The non-deployed parent shall facilitate opportunities for telephonic, “webcam,” and electronic mail contact between the deployed parent and the child or children during deployment; and

(h) The deployed parent shall provide timely information regarding the parent’s leave schedule to the non-deployed parent.

(i) If the parent with visitation rights receives military temporary duty, deployment or mobilization orders that involve moving a substantial distance from the parent’s residence or otherwise have a material effect on the parent’s ability to exercise rights, the non custodial parent’s visitation rights shall be exercised by a family member of the noncustodial parent for the duration of the parent’s absence, if delegating visitation rights is in the child’s best interest.

When Joint Custody is the Gateway to Sole Custody

November 20, 2013 § 3 Comments

Brittany and Douglas Clark consented to an irreconcilable differences divorce, agreeing to allow the chancellor to adjudicate “the primary physical custody” of their son, Brayden, and several other support and visitation issues.

At trial, the chancellor heard testimony from both sides, and announced that if he were to award custody of the child to either parent, “[he] would be taken care of. [He] would be loved. [He] would be supported. [He] would be nurtured. [He] would be raised properly.” The judge added:

The [Mississippi Supreme Court] has decided [this court] must follow and do what is in the best interest of the child after [it has] gone through all the Albright factors, and . . . these are the kinds of cases that . . . it’s hard . . . to give the child to one or the other because everything here would support that. . . . [H]ow can you choose one over the other, but [this court] has to.

The chancellor awarded custody of Brayden to Brittany, concluding that it would be in the child’s best interest to do so. Douglas appealed, one assignment of error being that the chancellor had failed to award joint physical custody, per Easley v. Easley, 91 So.3d 639 (Miss. App. 2012). [Note: A previous post on the Easley case is at this link].

In the case of Clark v. Clark, decided November 12, 2013, the COA reversed and remanded. Judge Roberts’ opinion, for the court, explained:

¶10. Douglas argues that the chancery court erred when it determined that it could not award joint physical custody. As was quoted above, the chancery court made the following statement before awarding full physical custody to Brittany: “[In these] kinds of cases . . . it’s hard . . . to give the child to one or the other because everything here would support that. . . . [H]ow can you choose one over the other, but [this court] has to.” (Emphasis added). The trial was held and the oral decision of the chancery court was made on June 12, 2012. However, just a few days earlier, this Court handed down the case of Easley v. Easley, 91 So. 3d 639 (Miss. Ct. App. 2012), which is directly on point for this particular issue.

¶11. In Easley, the chancery court stated that joint physical custody was in the best interest of the child, but the court was not permitted by law to grant joint physical custody when it was not requested by both parties in an irreconcilable-differences divorce. Id. at 640 (¶1). Therefore, the court awarded full physical custody of the minor son to the father. Id. Reversing and remanding the chancery court’s decision, this Court found that “[t]he [chancery court] erroneously concluded that joint custody could not be awarded” under Mississippi Code Annotated section 93-5-24(2) (Rev. 2004), and it was error to deviate from the child’s best interest by awarding sole custody to the father.Easley, 91 So. 3d at 641 (¶10). Additionally, in Crider v. Crider, 904 So. 2d 142, 148 (¶15) (Miss. 2005), the Mississippi Supreme Court held:

[W]hen parties consent in writing to the [chancery] court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of “joint application” in [section] 93-5-24(2). This is the only interpretation that conforms to the primary directive of [Mississippi Code Annotated section] 93-5-24(1) [(Rev. 2004)] that “custody shall be awarded as follows according to the best interests of the child.”

Importantly, before awarding joint custody, a chancery court must determine whether the parents are “capable of sharing joint custody cooperatively[.]” Crider, 904 So. 2d at 147 (¶13).

¶12. We are presented with a similar set of facts. Like in Easley and Crider, the divorce was granted on the ground of irreconcilable differences. Based on our reading of the transcript, it appears that the chancery court may have concluded, like the chancery court in Easley, that it was required to order custody to one parent regardless of whether joint physical custody was in the best interest of Brayden. The chancery court made no finding that Brittany and Douglas could not cooperate if joint custody was awarded. See Crider, 904 So. 2d at 148 (¶15) (“It is the chancellor who must determine what is in the best interest of the child, and it is the chancellor who determines the level of commitment parents have to sharing joint custody.”). We are concerned that the chancery court may have concluded that it was not authorized to consider joint physical custody; therefore, we reverse the chancery court’s judgment and remand this case to the chancery court for it to reconsider its award of custody, including the propriety of awarding joint physical custody.

As I’ve said here before, when you consent for the judge to adjudicate custody, you are opening the door to joint custody.

But does this mean that in all cases the judge is required first to consider whether joint custody should be awarded, and, only after finding that it is not in the child’s best interest, then move on to the issue of sole custody? I think it does. I don’t see any other way to read this line of cases.

If my interpretation is correct, it means that joint custody is the default setting for custody in this type case, if the issue is left to the court to decide, and the court must find a basis under case law or in the statute to deny joint custody before moving on to considering an award of sole custody.

At the very least, these are matters you should discuss in detail with your client before drafting that consent.

Can you limit the court’s scope of award via draftsmanship? I question whether you can, based on this language from Crider: “It is the chancellor who must determine what is in the best interest of the child, and it is the chancellor who determines the level of commitment parents have to sharing joint custody.”

No Place Like Home

November 19, 2013 § Leave a comment

UCCJEA jurisdiction begins with a determination of the home state of the child. MCA 93-27-102(g) says:

“Home state” means the state in which a child lived with a parent or person acting as a parent for at least six (6) consecutive months before commencement of a child custody proceeding … A period of temporary absence of any of the aforementioned oersons is part of the period.

And most folks stop right there. If the child has been here six months, Mississippi must have jurisdiction. Most cases, however, are not so clear-cut. What about the familiar scenario where the child is taken from Mississippi to another state? How does that affect home state status?

Consider this language from MCA 93-27-201(1)(a):

[A] court of this state has jurisdiction to make an initial child custody determination only if:

This state is the home state of the child on the date of commencement of the proceeding, or was the home state of the child within six (6) months before commencement of the proceeding and the child is absent from the state but a parent or person acting as a parent continues to live in this state …

So, if …

It’s an original custody proceeding, and
Mississippi is the child’s home state on the day the action is filed, or
Mississippi was the home state of the child within six minths before the action is filed, and the child is absent from Mississippi, but a parent or person acting as a parent continues to live in Mississippi, then …

Mississippi does have jurisdiction. And, remember that UCCJEA jurisdiction is subject matter jurisdiction.

In the COA case of Jones v. McQueen, handed down November 12, 2013, the court affirmed the chancellor’s finding that Mississippi, not Alabama, had UCCJEA jurisdiction because Mississippi was where the mother and father had lived together with the child, and had been the home state of the child within six months before the action is filed. Although the child had been removed from Mississippi to Alabama by the mother, the father of the child continued to reside in this state. The facts of the case also established that the mother had periods of absence in Alabama during the six months, but that they were temporary absences, and she actually moved her personal effects out of the father’s Mississippi home when the parties finally separated.

The UCCJEA has many complexities. If you are not thorough in studying the code sections that apply, you might find yourself on the short end of the jurisdictional stick — which is a bad place to be.

Helping Your Client to Ease the Pain of Visitation

September 4, 2013 § 2 Comments

Yes, I said pain. What should be a joyous reunion for the children with the non-custodial parent is often fraught with anxiety and insecurity.

That’s because the children are aware of the animosity and tension between the combatant parents. Some children have seen angry confrontations and even violence between the two persons whom they love more than anyone else. They want to have a relationship with each parent, but they are afraid to hurt the feelings of one if they show any enthusiasm for the other.

You are in a unique position to influence your clients to do a better job in making it easier and healthier for the children in these situations. Here are a few suggestions for the custodial parent:

Reassure the child that you will be okay while he or she is away. A child I spoke with years ago told me she did not want to go visit with her dad because she was worried that her mother would be lonely and sad without her. Remember that children have seen their parents sad, crying, upset and emotional during the heat of the divorce. They feel it is their responsibility to try to fix it. The custodial parent can alleviate the child’s concern by assuring him or her in the few days leading up to visitation that the parent has plenty to do, and will be happy to see the child go off for an enjoyable visit.
Let the non-custodial parent participate in the children’s lives. The transition to visitation is much easier when the non-custodial parent is not a stranger who drops in every other weekend. Encourage the children to call the other parent, to send birthday and holiday cards, to Skype every now and then, to call with news like good grades or a smiley face for good behavior in school. Let the children invite the other parent to school and church programs, sports, and award preseentations.
Leave the visitation schedule free for visitation. Never schedule outings, events, or even sports activities during the other parent’s visitation without his or her permission.
Be flexible in scheduling. Both parents should yield to the other’s reasonable requests for rescheduling due to family reunions, weddings, family holidays, and the like. If the non-custodial parent can only schedule Disney World with the children during the first week in July, why shouldn’t the custodial parent give up her July 4 holiday for some other time?
Make exchanges amicable. Leave the drama at home when it comes time to exchange the children for visitation.
Share school pictures. Get extra copies for the children to give to the non-custodial parent, the grandparents and other members of the family. The little wallet-sized and 4×6 sizes are not that expensive. Get a few copies of the order forms to give to the other parent and family so that they can order as many and whatever size photos they want.
Listen to the children’s experiences when they return home. Show interest in their experiences, and encourage them to share their enthusiasm, but never pry into what is going on in the other home or use the children as spies.
Understand that parenting styles are different, and that’s okay. The children may come home with wide-eyed tales of being able to stay up to midnight, or to watch a scary movie, or being able to eat popcorn in bed. Reassure them that the rules can be different in different places, and the important thing is that they honor the rules set down by each parent.

You can come up with some more, based on your experiences as a family lawyer. The important thing is that you are not only a legal advisor; you are a wise counselor who can help defuse and heal some hostile situations. Clients remember that kind of help when their friends ask who they would recommend in their own divorce situations.

Before someone brings it up in a comment: Yes, I am aware that sometimes the other parent is beyond reason and commits all manner of atrocities in the visitation process. That does not mean, however, that your client should not try to “wear the white hat,” and do the right thing. One one hand, it’s the best thing for the children, and it’s the right thing to do. And on the other hand, it always puts your client in a better standing with the judge when he or she has been the one to do right.

Where Am I?