Child Custody | The Better Chancery Practice Blog

A History of Family Violence

August 26, 2013 § 2 Comments

A serious act or history of family violence has an impact on the adjudication of custody, and even visitation. It’s a subject I’ve posted about here, here and here.

The matter is addressed in MCA 93-5-24(9)(a)(i), which establishes a rebuttable presumption regarding family violence: ” … it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence.”

The statute does not explicitly define the term “family violence,” but it does refer to violence against ” … the party making the allegation or a family household member of either party.”

The statute goes on to say that the court may find a history if it finds either (a) one incident of family violence that resulted in serious bodily injury, or (b) a pattern of family violence. The finding is by a preponderance of the evidence.

In the COA case of Rolison v. Rolison, decided December 11, 2012, Alisa Rolison argued that the chancellor had refused and failed to apply the presumption against her ex-husband Gary in a case where there was proof in the record of what she considered to have been family violence. Judge Fair, for the majority, stated the court’s ruling:

¶6. The statute requires that if a chancellor finds a history of perpetrating family violence, the rebuttable presumption is triggered. The chancellor must then consider six factors to determine whether or not the presumption has been rebutted and make “written findings” to document his consideration. Miss. Code Ann. § 93-5-24.

¶7. The Mississippi Supreme Court has one published decision addressing this presumption, J.P. v. S.V.B., 987 So. 2d 975 (Miss. 2008). In J.P., the chancellor removed a child from his parents’ custody because the father had a history of perpetrating domestic violence, and the mother continued to reside with him. Id. at 980 (¶¶11-12). The supreme court upheld awarding custody to the maternal grandparents explaining [Fn 1]:

The applicable statute [§ 93-5-24] clearly required the chancellor to consider all of the above-listed factors in ascertaining whether the rebuttable presumption has been overcome, and the chancellor “shall make written findings to document how and why the presumption was or was not rebutted.” That being said, a chancellor in these cases must specifically address each factor, failing which reversible error may quite likely result. However, from the record before us in today’s case, we can safely say that while the chancellor did not specifically refer in writing to all the factors enumerated in her judgment, she no doubt considered those factors in making the custody determination. The chancellor made sufficient, specific findings to support her conclusion that the [parents] did not provide evidence to rebut the presumption outlined in Section 93-5-24(9)(a)(iii) and (iv). Since these findings were supported by substantial evidence in the record, we are duty-bound not to reverse on this issue. J.P., 987 So. 2d at 981-82 (¶16). [Fn1]

[Fn1] This Court [the COA] rendered a similar decision in Lawrence v. Lawrence, 956 So. 2d 251, 260-61 (¶¶33-35) (Miss. Ct. App. 2006), two years earlier and has since discussed the statute four times, most recently in Thompson v. Hutchinson, 84 So. 3d 840, 844 (¶¶15-19) (Miss. Ct. App. 2012).

¶8. Alisa contends the chancellor should have found that Gary had a history of family violence. Then, if the chancellor still intended to award Gary custody, he should have made written findings explaining why the presumption “was or was not rebutted.” Miss. Code Ann. § 93-5-24.

¶9. The record contains evidence of both parents’ actions that could be construed as perpetrating family violence. The chancellor found that at times, Gary was aggressive with the children and had a foul mouth. Alisa asserted that Gary once beat her with a “stacking stick” when she let a cow escape and that Gary spanked the children until they were bruised. Gary admitted that he disciplined his children corporally until the chancellor prohibited him from doing so during the pendency of this proceeding.

¶10. There is also evidence of Alisa’s perpetrating family violence. Alisa has bipolar disorder, borderline personalty disorder, and ADHD. She is taking medication and receiving treatment but has shoplifted at numerous stores and blamed her behavior on her medication. Alisa admitted being aggressive with the children. After a fight with one child, Alisa had to have an operation due to a spleen injury.

¶11. Both parents admitted to behaving aggressively with the children, but the only evidence of any serious injury was inflicted on Alisa by one of the children. We find that the chancellor did not abuse his discretion in refusing to apply the statutory presumption against Gary or Alisa. See Thompson v. Hutchinson, 84 So. 3d 840, 844 (¶¶15-19) (Miss. Ct. App. 2012).

In Rolison, the facts as to Gary’s violence simply did not rise to the level that would put the presumption into effect. If there were any serious episode, it was by one of the children against Alisa, requiring her to have surgery.

It’s hard to read the cases and come away with a clear picture of exactly what it is that constitues a “history” of “family violence.” Those are terms of art, but the definitions seem to be a moving target, based on the facts in the case. Sort of like US Supreme Court Justice Potter Stewart’s “I know it when I see it” definition of obscenity.

The main point to bear in mind is that, as you develop your child custody case, determine whether there are facts that might bring the statute into play. If so, peruse the statute and see whether and how it can help you prevail. Or, if you are on the downhill side of the case, look at the 6 factors the court has to consider to overcome the presumption and see how you can turn them to your advantage.

Tailoring Your Proof to Fit Your Case

August 22, 2013 § 2 Comments

Yesterday I visited the COA’s decision in Pelton v. Pelton, which the COA reversed because the chancellor did not make findings on the Ferguson and Armstrong factors.

All most of us know about Pelton is what we read in the opinion.

But before you dismiss this as the fault of the chancellor, consider the possibility that the record may not have included what the judge needed to adjudicate this case. I’m not saying that’s what happened here. I’m merely pointing out that sometimes the judge has to make do with what he or she has in the record. And sometimes what is in the record is not enough to cover all of the factors.

For example: in an equitable distribution case, the judge must first determine which assets are marital, and then go through the Ferguson factors to determine whether and how they should be divided. I have heard cases where there is next to no evidence as to when or how the assets were acquired. I have heard cases with scant evidence upon which to make Ferguson findings.

In a child custody case, the judge can not make Albright findings on evidence that is not in the record. So if you want the judge to consider your client as the parent with continuity of care, then you will have to put on proof to that effect. Another chancellor related his experience in a case a couple of years ago where the custodial parent defending a custody modification put on no proof as to Albright factors at all. What exactly is the chancellor to do in that situation?

MRE 614 does allow the judge to call witnesses and intrrogate them, which would seem to be a viable option where the best interest of a child is involved. But that should be a last resort in a contested case, and, in my experience, is rare in chancery court.

The bottom line is that you have to make your record. The chancellor can not rule on evidence not in the record. The appellate courts can not find that the trial judge’s ruling is supported by substantial evidence in the record when it is not there.

Venue in Divorce and the Accompanying Child Custody Action

August 15, 2013 § Leave a comment

Venue for fault-based divorces where both parties are residents of Mississippi is in the county where the defendant resides, or in the county where the parties lived when they separated, if the plaintiff still lives there.

Venue for irreconcilable differences divorces where both parties are residents is in the county where either party resides.

Venue for child custody actions brought under MCA 93-11-65 is in the county where the child actually resides, or in the county of residence of the custodial parent, or in the county of residence of the defendant.

The vast majority of divorce complaints include (1) claim of at least one fault-based ground for divorce, (2) claim of irreconcilable differences, and (3) claim for child custody, often pled under MCA 93-11-65. Where is venue in a case such as that? And how is venue affected if one or more of the claims is dismissed?

Those were the questions before the court in Slaughter v. Slaughter, 869 So.2d 386 (Miss. 2004).

Monica and Mitchell Slaughter married and lived together in Chickasaw County. Monica separated and moved to Coahoma County, where she filed a Complaint for Divorce alleging habitual cruel and inhuman treatment, and, the alternative, irreconcilable differences. Apparently, she also sought child custody per MCA 93-11-65. Mitchell filed a motion to dismiss on the ground that the Coahoma County Chancery Court lacked jurisdiction. He also filed his own actions for divorce and custody in Chickasaw County.

The chancellor granted the motion to dismiss as to the fault-ground. He ruled, however, that the Coahoma County court did have jurisdiction over the irreconcilable differences divorce, and over the issue of custody pursuant to MCA 93-11-65(a).

Mitchell contested the irreconcilable differences divorce and asked the court to transfer the case to Chickasaw County, which the chancellor refused.

Mitchell sought an interlocutory appeal, which the MSSC granted.

In a unanimous decision, with Diaz not participating, the court, by Justice Easley, ruled:

Since Coahoma County was not the proper venue for the fault-ground divorce, the chancellor erred in retaining jurisdiction over the irreconcilable differences divorce only. The chancellor should have dismissed the case in toto, rather than treating it piecemeal (¶29). The irreconcilable differences venue statute may not be used to circumvent the clear requirements for venue in fault-based cases (¶ 30).
“We find that a proper reading of all three statutes, §§ 93-5-11, 93-5-23 and 93-11-65, does not provide for a custody matter to proceed under § 93-11-65 when a divorce is pending.” (¶33).
And finally since the chancellor lacked any jurisdiction at all, he could not transfer the case. (¶30).

That’s the pronouncement of the court, and we are bound by it. But there are a couple of points:

I don’t really have a quarrel with the outcome of the case. Both the irreconcilable differences statute and MCA 93-11-65 seem to be pretty slender reeds to support proper jurisdiction in a fault-based divorce. But what, exactly does MRCP 82(c) mean? You can read it for yourself and lay awake tonight pondering it. The Slaughter opinion did not address it.

As to number 3, the obvious question is what in the world does MRCP 82(d) mean when it says that “When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court … shall transfer the action to the court in which it might properly have been filed …”? The legislature addressed this conundrum in 2005, when it amended MCA 93-5-11 to provide that “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” That would seem to cover that. Ironically, Justice Easley penned the decision in Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238 (Miss. 2006), reh. den. February 8, 2007, which ruled that an estate opened in the wrong county must be dismissed, and may not be transferred. Again, what in the world … etc.

I guess what you need to bear in mind about this case is in contested divorces that the jurisdictional sun around which all of the other planetary issues will revolve, including custody, support, equitable distribution, etc., will be the fault-based divorce. Venue in a divorce is jurisdictional. That means that it will be heard in the county where the defendant resides, or in the county where the parties lived when they separated, if the plaintiff continues to reside there.

Termination in the Best Interest

July 23, 2013 § Leave a comment

The COA case of In Re: Adoption of H.H.O.W., decided March 12, 2013, illustrates the important principle at work in termination-of-parental-rights cases that it is the best interest of the child, and not mechanical application of the termination statutes, that will dictate the result.

In this case, the unmarried parents, Gavin and Brigit, had left their nine-month-old son, Henry, in the care of the father’s sister and her husband for more than three years, during which they had limited contact with the infant. When the caretakers filed to terminate parental rights of the parents and for adoption, a contest ensued and the chancellor ultimately found that the failure of the parents to visit the child had caused a “substantial erosion” of the parent-child relationship. The COA affirmed:

¶9. Relevant to the case at hand, section 93-15-103(3) provides:

Grounds for termination of parental rights shall be based on one or more of the following factors:

….

(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or

. . . .

(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment . . . .

The chancellor’s decision was grounded in subsection (3)(f), a finding of “substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s prolonged and unreasonable absence [and] unreasonable failure to visit.” This was supported by the uncontested fact that Brigit and Gavin failed to visit Henry for approximately three years, beginning when the child was only nine months of age. In response, Gavin and Brigit point to evidence of communication – they called approximately every two or three weeks – but there was also significant evidence showing that these attempts had been ineffective in preserving the parent/child relationship. We note that the statute provides that the erosion may be a result of either “prolonged and unreasonable absence” or “unreasonable failure to visit”; the law recognizes that communication in and of itself is not necessarily sufficient to preserve the parent/child relationship. Moreover, Gavin admitted in his testimony that, until Henry learned to talk, they did not speak directly with him on the phone, but instead Gavin spoke with Alexis about Henry …

The chancellor found it more credible that the caretakers had not withheld or alienated the child, and that the natural parents had been derelict in maintaining the relationship. This segment of the chancellor’s bench opinion was telling:

[Gavin and Brigit] wanted me to watch . . . [a video recording of some of their visits with Henry] . . . . [W]hat I see is a little boy playing with a man. What I see is a little boy . . . playing with another little girl. I don’t see a father and son relationship. It just could not possibly exist. That bond could not have been formed . . . [even if, i]ntellectually, [Henry] may understand that [Gavin] is his father . . . .

It’s easy to fall into the belief that one must simply prove one or more of the statutory grounds, such as failure to support for the prescribed period, or failure to maintain contact for the presecribed period, or any of the other elements, before the court may grant a termination of parental rights. This case points out an important point beyond mere mechanical application of the statute: that it is the impact of the parental conduct that matters more than simply ticking off the requirements of the statute. Where the parental behavior has caused the destruction of the relationship, the requirement of the statute has been satisfied.

Sibling and Step-parent Visitation

July 22, 2013 § 1 Comment

Unlike grandparent visitation, which became a part of Mississippi’s legal landscape by act of the legislature in 1983, sibling and step-parent visitation are matters that have not found their way into our body of law.

In the case of Scruggs v. Satterfiel, 693 So.2d 924 (Miss. 1997), the court was confronted with the question whether siblings have a right to visitation with each other.

Stacey Scruggs and her half-brother, Dustin Anthony “Tony” Satterfiel, were the children of Donna Sue Bowman, who died. After their mother’s death, Donna’s sister, Sandra Friend, got guardianship of Stacey, and she sought to keep the two children together in Meridian, but Tony’s natural father, who lived in Ackerman, was awarded his custody in chancery court, and Tony moved to Choctaw County with him.

At first, the parties arranged for visitation between the siblings, but when disputes and differences arose, Stacey, by Sandra, filed suit in Lauderdale county Chancery Court, seeking visitation with her brother. The chancellor dismissed the petition, finding that there was no legal basis to support an award of visitation in the case. Stacey appealed.

The MSSC affirmed the dismissal:

Stacey and Friend first assert that although no statutory provision has been made for visitation of siblings separated by divorcing parents, the circuit court [sic] erred in not ordering the parties to provide for the children to have regular visits with each other. In support of their argument, they look to case law in Mississippi and other jurisdictions which emphasizes the importance of considering the best interests of the child and preserving sibling relationships. Further, they turn to Miss.Code Ann. § 93-16-1, et seq., which provides for grandparent visitation. Saterfiel merely recites the chancellor’s specific findings made pursuant to the Litigation Accountability Act and asserts that because there is no Mississippi law on the subject of sibling visitation, the chancellor properly dismissed the case.

[1] [2] This Court, as Scruggs and Friend point out, has recognized the value of encouraging sibling relationships. In Sellers v. Sellers, 638 So.2d 481 (Miss.1994), which involved a custody dispute between an aunt and a natural parent, we clarified our position that “the presumption of awarding custody to a natural parent should prevail over any imperative regarding the separating of siblings.” Id. at 485. Nevertheless, quoting Mixon v. Bullard, 217 So.2d 28, we reiterated that:

The Court shall in all cases attempt insofar as possible, to keep the children together in a family unit. It is well recognized that the love and affection of a brother and sister at the ages of these children is important in the lives of both of them and to deprive them of the association ordinarily would not be in their best interests. [Emphasis in original]

Sellers, 638 So.2d at 484, quoting Mixon, 217 So.2d at 30-31 (emphasis added). Despite our respect for the preservation of sibling bonds, however, it is not our prerogative to make new laws governing sibling visitation. That decision belongs to the legislature.

By statute, the legislature has extended third party visitation rights to grandparents when “such visitation rights would be in the best interest of the child.” Miss.Code Ann. § 93-16-5. While, ordinarily, the exercise of grandparent visitation rights might serve as a catalyst for preserving the relationship between half-siblings separated by the death of the common parent, in the case sub judice, the only known maternal grandparent died several months before the children’s mother’s death. We recognize, as Scruggs and Friend argue, that some jurisdictions, in the absence of any statutory imperative, have made provision for sibling visitation when the children’s best interests so dictate. See, e.g. In re Interest of Daniel W., 3 Neb.App. 630, 640, 529 N.W.2d 548, 555 (1995)(as distinguished from grandparent’s “right” to visitation which is derived through natural parent’s parental rights, “siblings possess the natural, inherent and inalienable right to visit with each other.” quoting L. v. G., 203 N.J.Super. 385, 497 A.2d 215, 222 (1985)); In re Custody of D.M.M., 137 Wis.2d 375, 387-388, 404 N.W.2d 530, 535 (1987)(statutes providing visitation to family members are intended to supplement, not supplant, common law rights). We are not so inclined. Rather, we invite the legislature to consider the matter and to expand the rights set forth in § 93-16-5 to siblings or other third parties as it sees fit.

The legislature has not RSVP’d. Until it does, it appears there will be no sibling visitation in Mississippi.

In the case of Pruitt v. Payne, 14 So.3d 806 (Miss. App. 2009), in a procedurally peculiar case, the stepfather, Jackie Ray Pruitt, had obtained an order of visitation with his stepchildren in a habeas corpus proceeding before one chancellor. When he sought to enforce the order before a successor chancellor, the natural father, Richard Payne, objected, and the second judge struck down and dismissed the prior order, noting that the stepfather had no right cognizable under Mississippi law to visitation. The COA affirmed, at page 811:

In the case at bar, Jackie Ray is seeking visitation with his stepchildren. However, as the chancery court noted, Jackie Ray has no right to visitation with his stepchildren under the laws of the State of Mississippi. In order for Jackie Ray to obtain custody of his stepchildren, he must demonstrate to the court that their biological father is unfit. As noted by Jackie Ray at the second hearing, there is a separate proceeding, Civil Action Number 06-162-M, in which he is seeking a determination of whether Richard is an unfit parent. Jackie Ray’s proper relief is contained in that separate proceeding. Therefore, Jackie Ray must show that Richard is an unfit parent in order to gain custody or visitation with his stepchildren. While the Legislature has chosen to extend visitation rights to grandparents by statute, they have declined to extend that same right to stepparents. Therefore, we find that the chancellor was correct to grant the motion to dismiss since Jackie Ray had no visitation rights under the laws of the State of Mississippi. This issue is without merit.

The only visitation rights in derogation of the common law that have been established in Mississippi are visitation rights on the part of grandparents. That’s the way it will stand unless and until the legislature sees fit to expand the scope of third-party visitation.

Grandparent Visitation: How Much?

July 18, 2013 § 2 Comments

In most cases, grandparent visitation should not be as comprehensive or extensive as that of natural parents. Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997).

But just what amount of visitation is reasonable for grandparents? Here is a collection of cases addressing the question:

Settle v. Galloway, 682 So.2d 1032 (Miss. 1996). The MSSC affirmed an award of alternating weekends, plus Easter and Thanksgiving in alternating years. The court pointed out that grandparent visitation on alternating weekends would probably be excessive in the usual case, but that it was appropriate in this particular case because the non-custodial parent was in the military and could not exercise his usual visitation.
Martin v. Coop, 693 So.2d 912 (Miss. 1997). The MSSC reversed an award of 86 days in even-numbered years, and 81 days in odd-numbered years. The court found that “Grandparents do not stand in lieu of or in the shoes of the deceased parent,” and “[V]isitation granted to grandparents should not be the equivalent to that which would be granted to a non-custodial parent unless the circumstances overwhelmingly dictate that it should be.” Id., at 916.
Zeman v. Stanford, 789 So.2d 798 (Miss. 2001). In a case where the non-custodial parent was incarcerated, and was unable to exercise any visitation, the MSSC affirmed a chancellor’s award of one weekend per month, finding that the situation was analogous to the Settle case, supra.
Woodell v. Parker, 860 So.2d 781 (Miss. 2003). Affirmed the chancellor’s award of: one weekend per month; every other Spring Break/Easter holiday; the Friday and Saturday following Thanksgiving; the five days following Christmas; two weeks during the summer; and regular telephone and “postal” access. Id., at 790.
T.T.W. v. C.C. and J.C., 839 So.2d 501 (Miss. 2003). The court remanded for a full consideration of the Martin factors in a case where the parents resisted visitation due to the grandparents’ interference with parental decisions and discipline. Interestingly, the court suggested that, “on remand the chancellor might consider options other than a wholesale grant or denial of visitation,” and pointed out that supervised visitation might alleviate many of the problems that had arisen. Id., at 506.

Remember that the amount and extent of grandparent visitation may only be determined by the trial court after application of the Martin v. Coop factors.

Visitation may be modified “for cause.” MCA 93-16-5; Rose v. Upshaw, 69 So.3d 74, 79 (Miss. App. 2011).

[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]

Recovering Lost Custody

July 16, 2013 § 4 Comments

We talked last week about the natural parent presumption for custody, and how it may be lost.

Once a parent has lost custody on a finding of unfitness, and he or she later reforms the unfit conduct, what is the standard of proof required to recover custody?

In the case of Barnett v. Oathout, 833 So.2d 563 (Miss. 2004), DHS had removed the minor children from the parents’ home and placed the children in a foster home for more than two years. After the Youth Court had awarded the foster parents durable legal custody and they denied the natural father visitation, he petitioned for modification of visitation. The MSSC stated the rule to be followed by the modification court, as follows:

“The chancellor had to make two determinations: first, whether [petitioner] showed that there was a substantial change of circumstances which adversely affected the children, where it would be in the best interest of the children that custody be changed; and second, whether [the petitioner] showed that he had eliminated the behavior that caused the children to be taken in the first place.” Id., at 568 (¶ 10).

The court went on to find that the rule in Grant v. Martin, 757 So.2d 264 (Miss. 2000), that a parent who agrees to third-party custody forfeits the natural-parent presumption does not apply in cases in which a child is placed with DHS.

That would appear to mean that, although the natural parent in a DHS case does not lose the natural-parent presumption, the standard of proof to modify will be material change-best interest-reformed conduct.

But in 2010, the MSSC extended the Barnett rule to non-DHS cases in the case of Adams v. Johnson, 33 So.3d 551 (Miss. App. 2010), where the court held that when a third party has gotten cusstody of a child due to the unfitness of the parent(s), modification will require proof that there has been a “material change in circumstances in the [grandparents’] home that adversely affected the children.” Id., at 555-56 (¶ 10). No mention of reformed conduct.

As the dust settles, it looks like whether the natural parent voluntarily gives up the child, or has the child taken away, a later attempt to modify custody will require the standard material change-adverse effect-best interest standard, without regard to any natural parent presumption.

[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]

Just How Unfit Does a Parent Have to Be to Lose the Natural Parent Presumption?

July 11, 2013 § Leave a comment

We’ve talked here before about the natural parent presumption, and how it can be rebutted, or lost, by the natural parent’s own unsuitable conduct. The presumption is rebutted by a “clear showing” of (a) abandonment, or (b) immoral conduct by the parent that is detrimental to the child, or (c) mental or other unfitness.

Here is a collection of cases where the appellate courts have found that parental conduct rebutted the presumption:

White v. Thompson, 569 So.2d 1181 (Miss. 1990). Children not adequately supervised, not adequately clothed or fed, with a resulting deleterious effect on their health, mother living in intimate relationship with another woman.
E.J.M. v. A.J.M., 846 So.2d 289 (Miss. App. 2003). Mother had a significant history of mental illness, and in a recent bout of depression could not recall where the child was, and the child had been abused while in her care.
In re Custody of M.A.G., 859 So.2d 1001 (Miss. 2003). Drug and alcohol abuse. The 6-year-old child believed his father had killed his mother and brother with a baseball bat, based on a horror movie that the father had rented and watched with the child. Father: charged with drunken driving with child in the car; exposed child to sexual situations involving married women; threatened and abused child’s mother; and never reported his live-in girlfriend and her 5-month-old child missing after they were killed.
Loomis v. Bugg, 872 So.2d 694 (Miss. App. 2004). Use of illegal narcotics for an extended period of time. Mother left the child with relatives for more than half the time after death of the natural father.
Westbrook v. Oglesbee, 606 So.2d 1142 (Miss. 1992). Mother lived with several different men without benefit of marriage while she had the child, was arrested numerous times on drug-related charges, used illegal drugs and had paraphernalia in her apartment that was used to produce crack cocaine.

So what happens when the judge finds that the parent is presently unfit? Does that trigger an Albright analysis to gauge the comparative merits of the petitioning non-parents vs the parents? Not necessarily. In Lucas v. Hendrix, 92 So.3d 699 (Miss. App. 2012), the COA concluded that, upon a finding of parental unfitness, no further inquiry is necessary, the implication being that a parent who is presently unfit can not be awarded custody.

[This information is based on a presentation by attorney David Bridges to the Conference of Chancery Judges in April, 2013]

Beware this Custody Minefield

July 10, 2013 § 1 Comment

It’s not uncommon nowadays for grandparents to step into the parental role when the natural parents are too immature, or too drug-influenced, or in jail, or otherwise not able to care for their children.

The parties find their way into your office, and they need help. They want you to draw up some papers “to make it legal,” and to enable the grands to get the children into school and access to medical care.

Of course, your first ethical challenge is to determine who will be your client. Grandparents or natural parents? It makes a significant difference, because there are some serious issues facing the natural parents in this situation, and they need to go into the situation with their eyes wide open.

Consider:

In Grant v. Martin, 757 So.2d 264 (Miss. 2004), the natural parents voluntarily gave the father’s parents guardianship over their children. The natural parents later divorced, and the mother remarried and stabilized her situation. When the grandparents refused to return the children to her, she filed a petition to modify custody. The chancellor denied it, finding that there had been no material change adversely affecting the children. On appeal, the MSSC stated ” … we adopt a new standard and hold that a natural parent who voluntarily relinquishes custody of a minor child, through a court of competent jurisdiction, has forfeited the right to rely on the existing natural parent presumption …” and that the “… natural parent may reclaim custody of the child only upon showing by clear and convincing evidence that the change in custody is in the best interest of the child” and that the new standard gives chancellors “… the authority to make a ‘best interest’ decision in voluntary relinquishment cases without being fettered by the presumption in favor of natural parents which applies in other custody cases.” Id., at 266.
In Callahan v. Davis, 869 So.2d 434 (Miss. App. 2004), the natural parents agreed in the course of a divorce proceeding that the paternal grandparents would have sole physical custody of the child, with what they considered was protective language in the agreement to the effect that either parent could later petition the court based on material change in circumstances, ” … to apply for custody of the child, jointly or solely, upon a showing that it would be in the best interest of the child to be with that party.” The mother later petitioned to change custody, which the chancellor denied based on a finding that the proof was not clear and convincing, as was required in Grant. The COA affirmed.
In Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), the court refused to extend the Grant rule to a temporary order. But beware the principle that a temporary order can morph into a permanent one with the passage of time. Quadrini v. Quadrini, 964 So.2d 576 (¶17) (Miss. App. 2007). In Hill v. Mitchell, 818 So.2d 1221 (Miss. App. 2002), the grandparents acquired a “temporary emergency order” for custody of a child “pending a final hearing.” No final hearing was ever held, and after eleven years the mother filed a petition to modify custody. The chancellor denied modification and held that the mother had abandoned the child. The COA affirmed and said that the passage of time amounted to the mother’s acceptance of the custody arrangement.
In D.M. v. D.R. 62 So.3d 920 (Miss. 2011), the court held that a mother’s signature on a consent to adoption was tantamount to abandonment, and rejected the mother’s argument that she should regain the natural parent presumption when both of the adoptive parents (grandparents of the child) died less than 10 months after the adoption was finalized. The court applied the Grant rationale in the case.

Note that the common thread in all of the above cases is that the parent or parents voluntarily relinquished custody. The Grant rule does not apply in cases in which the child is placed with DHS. Barnett v. Oathout, 883 So.2d 563 (Miss. 2004).

Before you counsel a natural parent to forfeit the advantage of the natural parent presumption, you would be wise to get an acknowledgment that the parent knows and understands exactly what is being lost.

[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]

Primer on The Natural Parent Presumption

July 9, 2013 § Leave a comment

This is the first of several posts in which we are going to examine how the natural parent presumption may be lost, and how the appellate courts have construed and applied the principles of loss of the presumption.

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. K.D.F. v. J.L.H., 933 So.2d 971, 980 (Miss. 2006).

This presumption is found in Mississippi Code Section 93-13-1 (Rev. 2004):

“The father and the 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.”

The presumption is rebuttable, upon a clear showing that:

The parent has abandoned the child;
The conduct of the parent is so immoral as to be detrimental to the child; or
The parent is unfit mentally or otherwise to have custody.

Absent clear proof of one of the above circumstances, the natural parent is entitled to custody of his or her child. Rutland v. Pridgen, 493 So.2d 952, 954 (Miss. 1986); McKee v. Flynt, 630 So.2d 44, 47 (Miss. 1993). However, “if the court finds that one of these factors has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interest of the child through an on-the-record analysis of the Albright factors. In re Dissolution of the Marriage of Leverock and Hamby, 23 So.2d 424, 431 (¶ 24) (Miss. 2009).

Most recently, the chancellor in In re Custody of Brown, 66 So.2d 726 (Miss. App. 2011) ignored the natural parent presumption and awarded custody to the grandmother based on an Albright analysis. The father appealed. The court reversed and remanded the case for a determination of whether the child’s father had abandoned the natural parent presumption through desertion or other conduct that made him unfit.

In Smith v. Smith, the Court held that “the natural parent presumption can be rebutted by a clear showing that (1) the natural 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 v. Smith, 97 So. 3d 43 (¶ 10) (Miss. 2012).

[Taken from a presentation made by attorney David Bridges to the Conference of Chancery Judges in April, 2013]

Where Am I?