Children as Messengers
June 20, 2013 § 2 Comments
Robert Lyles and Christal Carpenter had a child together whom they named Emily Lyles. They entered into an agreed order under which Christal had custody of Emily. Robert was to have some specified visitation and telephone contact with the child. They also agreed to the following:
“[S]chool and extracurricular activities of the minor child shall be communicated to the other parent when the receiving parent first receives notice of the event and any associate[d] preparation dates, including date, time and place so as to allow both parties to attend when possible.”
Robert sued Christal for contempt claiming that she violated the agreed order by: (1) not allowing him alternating weekend visitation; (2) not notifying him of Emily’s extracurricular activities; and (3) not allowing him his telephone contact with the child.
In her defense to point (2), Christal averred that she had notfied Robert because Emily had her school backpack with her when she visited, in which were notes from the school about the extracurricular activities. She took the position that she was not in contempt because Robert had notice, if only he would take the trouble to look through Emily’s backpack.
The chancellor found Christal in contempt:
[T]he reason [the contenpt] is willful is because you assume that he should go through the backpack of your daughter … and find that document out, find that information out by himself. That [is not] what the Order says. It says as soon as you find out about that, you need to notify him. You [cannot] assume he got it from somewhere.
Christal appealed, and the COA, in Carpenter v. Lyles, decided May 28, 2013, affirmed.
I write to say that I, too, would have found Christal in contempt. As the chancellor said here, there is no question that Christal’s conduct violated not only the letter, but also the spirit and intent of the provision. It was her duty to communicate immediately and directly with Emily’s father, which she failed to do. I would have found an additional failure here, however.
My firm opinion is that parents may not discharge their responsibilities by shirking them off on the child. Christal was wrong, I would say, by leaving it up to Emily to be her messenger. There are several points here to consider:
- When parent A tasks the child to communicate information to parent B, parent A is putting the child squarely in the middle of what is quite often a conflict-ridden situation.
- What punishment should the child receive for garbling the message or confusing the reply?
- When the child is the messenger, parents are in a position to weigh the child down with adult, parental concerns that should be none of the child’s business or source of worry.
- A child used as a messenger is often used as a bearer of critical and demeaning communications between adults.
- Using the child as a messenger teaches the child that she is more important to the parents as a conduit of communiqués between combatants than she is as a beloved child.
- Using the child as a messenger enlists the child as an ally to one side or the other, usually to the more embittered, negative side that has more invested in the twisted process.
No parent should be allowed to discharge his or her parental duties by proxy through a child. It’s damaging to the child, and definitely not in her best interest.
I would encourage you to counsel with your clients to find ways to interact with opposing parents in an adult way that leaves children completely out of the conflict between them.
THE PRICE OF ADMISSION
June 11, 2013 § 5 Comments
We all know that MRCP 36 dealing with Requests for Admission (RFA) has some sharp teeth that can inflict painful, if not fatal, wounds on your case. R36(b) says that any matter admitted is “conclusively admitted,” unless the court allows withdrawal or amendment of the response.
The scope and dire effect of that “conclusively admitted” language was explored in the COA case of Aydelott v. Quartaro, decided June 4, 2013. The case at trial was one for grandparent visitation, based on a claim that the grandparents had established the statutorily-required relationship with the grandchildren and had provided support. The chancellor allowed the Quartaros to testify contrary to their admissions, which had been neither withdrawn or amended.
So, was the chancellor’s ruling an inconsequential procedural matter not rising to the level of error, or did it warrant reversal? Here’s how Judge Maxwell answered the question:
¶16. First, the fact the Quartaros had not established a viable relationship had been “conclusively established” through the Quartaros’ responses to the Aydelotts’ requests for admissions made under Rule 36 of the Mississippi Rules of Civil Procedure. The Aydelotts had requested both Dorothy and Jack admit they “have not provided financial support for the minor children.” Both gave the same response and “admit the allegations contained in Request for Admission No. 12 due to the fact that [their] daughter throws the things away that the Plaintiff buys for the children.” The Quartaros were also asked to admit they “have not visited with the minor children in the last two years” and “have never had frequent visitation with the minor children which included overnight visits for a period of at least one year.” They also admitted they had never had frequent visitation, because Shassidy would not let them. Under Rule 36(b), “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” The Quartaros never moved to have their admissions withdrawn or amended. So the fact they had never contributed financially to or had frequent visitation with their granddaughters—and thus had never established a viable relationship—had been conclusively established. See In re Dissolution of Marriage of Leverock & Hamby, 23 So.3d 424, 433 (¶33) (Miss. 2009); Boyd v. Boyd, 83 So. 3d 409, 416 (¶21) (Miss. Ct. App. 2011).
¶17. Further, “[a]ny admission that is not amended or withdrawn cannot be rebutted by contrary testimony or ignored by the court even if the party against whom it is directed offers more credible evidence[.]” Gilcrease v. Gilcrease, 918 So. 2d 854, 858 (¶5) (Miss. Ct. App. 2005). Here, the chancellor seemingly ignored the admissions and permitted contradictory testimony that the Quartaros had contributed financially—by allowing Shassidy’s mobile home to be placed on their land—and had frequently visited Acelynn prior to the rift. This was clearly error. While Rule 36 gave the chancellor discretion to permit withdrawal or amendment of the admissions—and is silent about how and when the Quartaros could move for withdrawal or amendment—the fact remains that the Quartaros never moved for withdrawal or amendment, so the lack of financial contribution or frequent visitation were deemed admitted. See Boyd, 83 So. 3d at 416-17 (¶¶21-22).
¶18. We acknowledge that, in the context of child custody, this court has viewed the error of failing to recognize an admitted matter as established and permitting contradictory evidence as merely procedural. Gilcrease, 918 So. 2d at 859 (¶¶8-9). In Gilcrease, when a mother admitted, under Rule 36, that it was in her child’s best interest that custody be awarded to the father, this court found the chancellor’s refusal to deem the best-interest issue admitted was merely a procedural error “made with the proper result in mind.” Gilcrease, 918 So. 2d at 859 (¶9). Because “[c]hild custody is a judicial determination” and not “merely [an] evidentiary matter,” this court held that it would not reverse based on the failure to recognize matters deemed admitted under Rule 36 “absent some other mistake in the chancellor’s substantive decision[-]making process.” Gilcrease, 918 So. 2d at 859 (¶¶8-9).
¶19. Grandparent visitation is different than child custody, as there are other evidentiary considerations besides the child’s best interest that must be considered—namely, whether the grandparent has produced sufficient evidence to show he or she is authorized under the statute to be awarded visitation. Still, while “Rule 36 is to be applied as written, . . . ‘it is not intended to be applied in Draconian fashion.’” Leverock, 23 So. 3d at 432 (¶28) (quoting DeBlanc v. Stancil, 814 So. 2d 796, 801-02 (¶26) (Miss. 2002)). Mindful of this tenet, even if we deemed the chancellor’s failure to recognize the Quartaros’ admissions under Rule 36 as merely procedural, we still must reverse due to a second, substantive error—the chancellor’s finding that a viable relationship may be established based on the grandparents’ desire to establish a relationship with their grandchildren.
The decision went on to say that the mere thwarted desire to establish a relationship is not enough.
This case makes clear that inattention to timely supplementation of your discovery can cost your client big, even to the extent of getting a win turned on its head. If in trial preparation or any point before you believe the prior answers to RFA’s are incorrect and too restrictive, move for leave to amend.
Also, pardon me for sounding harsh, but I think the responses to the RFA’s might have been too “cute.” For example, intead of admitting that they had not supported the children because the mother threw things away, I think it would have been quite accurate and truthful to deny it something like this: “Denied as stated. We have bought numerous things for the children, but our daughter has thrown them away.” Sometimes, in that urge to strike back, clients say things that come back to haunt them. That’s what it looks like happened here.
If you try any grandparent visitation cases, you need to be fully aware of the two major categories of cases, as well as the Martin v. Coop factors. Merely because you have grandparents who are willing to pay you a retainer to try for visitation does not mean they have a viable case.
WHAT YOUR UNCONTESTED PROOF NEEDS TO INCLUDE
May 28, 2013 § Leave a comment
I’ve posted here before about the inadequate proof that most attorneys offer when presenting an uncontested divorce or child custody case.
I’m not talking here about corroboration and substantial evidence of the grounds in a divorce case. I’m talking about addressing all of the applicable factors that pertain to your particular case. For instance … After establishing that your client is entitled to a divorce, he says he wants the house and all the equity. Is that good enough? Or your client testifies that she wants custody and has had the child with her for the past 18 months. Is that all you need?
The answer in both scenarios is “No.” You need to give the judge enough evidence to enable findings on all of the Ferguson factors for the judge to award that equity, and you need to address the Albright factors for the judge to make sufficient findings to award custody. And so on with all of the type cases that involve factors.
That is what the MSSC held in Lee v. Lee, 78 So.3d 326 (Miss. 2012).
I usually sign will sign the judgment based on a modicum of proof. If, however, a proper post-trial motion is filed, I will set aside that part of the judgment that is not supported with findings on the applicable factors as required by case law. As the court said in Lee, at 329:
¶13. By failing to appear at the hearing, [the appellant] forfeited his right to present evidence and prosecute his divorce complaint. But he did not forfeit the right to challenge the sufficiency of the evidence or the judgment. And whether absent or present at the trial, the appropriate time to challenge a judgment is after it has been entered. [Appellant] did so in his Rule 59 motion and at the hearing following it. The fact that [he] failed to attend the divorce trial does not relieve the chancellor of his duty to base his decision on the evidence, regardless of by whom presented, nor did it nullify this Court’s mandate in Ferguson.
It’s so simple to take the few extra minutes to put on the evidence that will support the required findings. Then, you incorporate them into your judgment and the judge will gladly sign it. Only, don’t expect the judge to sign it if she did not hear testimony on point.
If your judgment has the necessary findings, it should withstand any post-trial attack based on that reason. Your client will appreciate that. After all, that’s what you were paid to do.
THE STRENGTH OF THE NATURAL PARENT PRESUMPTION
May 15, 2013 § Leave a comment
Concetter Davis gave birth to a daughter, Sha’Nyla, and in 2008, James Wilson was adjudicated to be the father. Concetter was awarded custody, and James was granted visitation.
When Concetter died in July, 2011, James filed a pleading seeking to “modify” custody, based on the mother’s death. Concetter’s mother, however, resisted, filing pleadings with the court seeking to intervene and be appointed guardian of the child.
The trial proceeded as a modification, not as an original custody determination. The chancellor found that Concetter’s death was a material change in circumstances, and then found, based on an Albright analysis, that it was in the child’s best interest to remain with the grandmother. James appealed.
The COA, in Wilson v. Davis, handed down April 30, 2013, reversed. The court first pointed out that this was not a modification case, since the original custody determination was between the two natural parents, one of whom was dead. Instead, this was an initial child-custody determination between a natural parent and a third-party. The court said, beginning at ¶ 8:
… [I]n 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. Lucas v. Hendrix, 92 So. 3d 699, 705-06 (¶17) (Miss. Ct. App. 2012) (citing McKee v. Flynt, 630 So. 2d 44, 47 (Miss. 1993)). This is because “[g]randparents have no legal right [to] custody of a grandchild, as against a natural parent.” Lorenz v. Strait, 987 So. 2d 427, 434 (¶41) (Miss. 2008).
¶9. The natural-parent presumption is rebuttable—but only “by a clear showing 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 43, 46 (¶9) (Miss. 2012) (citations omitted). Only after the presumption is rebutted is the grandparent on equal footing with the parent, permitting the chancellor to apply Albright to determine whether it is in the best interest of the child for the grandparent, versus the parent, to have custody. In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 431 (¶24) (Miss. 2009) (citations omitted).
Only after the presumption is rebutted by showing one of the four bases can the court place a third party on an equal ground with the parent and apply the Albright factors.
To hammer home the point, Judge Carlton added a specially concurring opinion including the thought that, “We must be mindful of the constitutional protection of parental rights against deprivation by third parties.”
MISSING THE ADVERSE EFFECT TO MODIFY
April 1, 2013 § 1 Comment
In Roberts, v. Roberts, decided March 19, 2013, the COA (majority opinion by Judge Roberts, btw) reversed a chancellor’s decision modifying custody where the chancellor did find material change in circumstances, but did not make a finding of adverse effect on the child, and did not address the Albright factors.
Scott Roberts and his ex-wife Stephanie had come to an agreement that their son Tristan could live with Scott, and that Scott could reduce the child support concomitantly. Scott did not pay the reduced amount as agreed, however. Stephanie later sued Scott for unpaid child support in the amount originally ordered by the court. Scott counterclaimed for custody and defended against her claim for child support that he should be liable only for the extra-judicial amount to which the parties had agreed.
Scott’s pleading for custody, styled “counter motion for custody,” did not expressly pray for modification of custody. Instead, it asked that “hereafter, each party should be responsible for child support of the child in their respective custody with neither party responsible for future support of the other.” It also stated that because Tristan had moved in with Scott full-time, there had been a material change in circumstances warranting modification so that neither should pay child support to the other. The COA, at ¶ 29 found these allegations sufficient to put the issue of modification of custody before the trial court, on the basis that, under MRCP 8(f), “All pleadings shall be construed to do substantial justice” and, per the comment, ” … that the rights of the client are not lost by the poor drafting skills of counsel.” The court concluded that to do otherwise would be to favor form over substance.
The court reversed and remanded the issue of custody, however. Here’s what the decision said:
The COA reversed and remanded, however, so the pleading, with its flaws, goes back for the chancellor for a do-over. Here’s what the COA said:
¶30. Next, Stephanie claims the chancellor erred by modifying custody of Tristan without first finding that there had been a material change in circumstances adverse to Tristan’s best interest. “The Mississippi Supreme Court [has] held that the prerequisites to the modification of child custody are: (1) proving a material change in circumstances which adversely affects the welfare of the child and (2) finding that the best interest of the child requires the change of custody.” McMurry v. Sadler, 846 So. 2d 240, 243 (¶13) (Miss. Ct. App. 2002) (citing Touchstone v. Touchstone, 682 So. 2d 374, 377 (Miss. 1996)). “[F]or the custody order to be modified so as to transfer custody to the non-custodial parent, the non-custodial parent must prove that since the entry of the decree or order sought to be modified, a material change of circumstances has occurred within the custodial home which adversely affects the minor child’s welfare.” Id. at 244 (¶13). “Therefore, in order for the court to proceed on a matter for custody modification, the pleadings must contain allegations that a material change has occurred which adversely affects the child.” Id. It is inappropriate to modify child custody when the non-custodial parent did not file a motion that specifically stated or alleged that there had been a material change in circumstances that adversely affected a child. Id. at (¶14).
¶31. Scott did not claim that there had been a material change in circumstances or that such a change was adverse to Tristan. Furthermore, the chancellor merely held that there had been a material change in circumstances. The chancellor did not find that a material change in circumstances was adverse to Tristan. Furthermore, the chancellor did not conduct an Albright analysis to determine which parent should have custody of Tristan. This Court has held that when considering a modification of child custody, the proper approach is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change. Where there is no specific identification of the alleged change in circumstances, this Court is placed in the position of attempting to guess what the chancellor determined was a proper basis for a change in custody. Thornell v. Thornell, 860 So. 2d 1241, 1243 (¶6) (Miss. Ct. App. 2003) (quoting Sturgis v. Sturgis, 792 So. 2d 1020, 1025 (¶19) (Miss. Ct. App. 2001)) (quotation marks omitted). Here, we can only guess why the chancellor found that a material change in circumstances was adverse to Tristan’s best interest. Furthermore, the chancellor did not conduct an Albright analysis before he found that it was appropriate to award custody of Tristan to Scott. In Thornell, 860 So. 2d at 1243 (¶¶7-8), this Court reversed a chancellor’s decision to modify child custody, because the chancellor failed to identify a specific change in circumstances that adversely affected the welfare of the child, and the chancellor failed to conduct an on-the-record analysis of the Albright factors. This Court concluded that it was appropriate to reverse the chancellor’s judgment and remand the matter to the chancellor for further proceedings. Id. at (¶¶8-9). Following Thornell, we remand this matter to the chancellor for further proceedings regarding how Tristan’s decision to live primarily with Scott amounted to a material change in circumstances adverse to Tristan’s best interest in light of the fact that Scott and Stephanie agreed that they would have joint physical custody of Tristan and Carleigh.
I agree that the case should have been reversed, but in my opinion the pleadings were fatally defective on two counts:
- In McMurry v. Sadler, 846 So.2d 240, 243-4 (Miss. App. 2002), it was held that a mere allegation of material change in circumstances in a pleading was inadequate to support a claim for modification, and that the pleading must expressly include the allegation that the change has had an adverse effect on the child. A distinguishing factor here is that, apparently, that issue was not contemporaneously raised to the chancellor as it was via a motion to dismiss in McMurry; but it was raised in this case by Stephanie on appeal. Although the appellate opinion references McMurry, it does so not for the pleading aspect of the case, but only for its holding that the proof must support a finding of adverse effect. I agree with Judge Roberts that the requirement imposed in McMurry elevates form over substance, but that is what the appellate court specifically mandated for this specific cause of action, “notice pleading” notwithstanding.
- These pleadings do not even state a claim upon which relief can be granted. In Arnold v. Conwill, 562 So.2d 97 (Miss. 1990), the supreme court held that where the parties agree for a child to live for a time with the other parent, that circumstance standing alone does not support modification of custody. Since that is all that Scott pled, I don’t see how he could get a permanent modification on the strength of this pleading.
… AND ANOTHER NON-SUPPORT WRINKLE
March 26, 2013 § Leave a comment
Picking up where we left off yesterday …
Another specie of non-support agreement presents itself when the parties agree that husband will support the child or children in his care, and wife will support the child or children in her care, with no child support changing hands.
In Roberts v, Roberts, decided March 19, 2013, by the COA, the court found no error in the chancellor’s decision modifying child support to eliminate the father’s duty to pay the mother, due to the fact that one child had come to live with the father, leaving one child behind with the mother, based on the parties’ extra-judicial agreement. The court stated that, “Because each parent had primary physical custody of one child, we do not find that the chancellor abused his discretion when he held that neither Scott nor Stephanie was obligated to pay child support.”
A similar situation arises when one parent has the child or children half the time. We see it every now and then in this district with oilfield workers, who work two-weeks out and two-weeks in, and there is a shared custody arrangement. Same with parents who rotate custodial periods.
The logic is almost irrefutable in those cases that it makes no sense to order the father to pay the mother child support, and the mother to send child support in turn to the father.
I say “almost irrefutable” because there are cases where there is such a disparity in income that I order the higher income parent to pay some support to the other parent, just so that the children will not have strikingly different standards of living in each household. In one case, the father worked offshore earning $70,000 a year, and the mother worked part-time in a convenience store. The parties wanted me to approve an agreement that each would support the child in his or her custody. I refused, because although each parent had one child living with him or her, it was only fair that the father pay child support so that the child with him would not live “in the lap of luxury,” while the other child with the mother would live near destitution.
The duty of the parent to support the child who is with him or her is distinguishable from the situation where the parties simply waive child support altogether. The former is allowed because the child is going to be supported; the latter is not allowed because there is no duty of support at all.
A MINORITY CONUNDRUM
March 19, 2013 § 2 Comments
I posted here about a case pending in my court in which a lawyer had filed a motion to void two agreed judgments for custody that had been executed by a 19-year-old mother. The basis for his motion was that the mother lacked the legal capacity to execute the judgments, and that they were not binding on her in any way.
The lawyers have settled the case, and the now-22-year-old mother has signed an agreed order that has the effect of supplanting the previous agreed judgments. So the concern about her legal capacity is moot in that case.
Still, the state of the law has me concerned. I did not find any authority for an unmarried minor to enter into an agreed judgment in a case of this sort. Neither did my staff attorney or even other judges who took the time to answer my query on our listserv. I found no authority, either, for subsequent ratification or approval by the court, although other states have addressed the ratification issue.
The reason for my concern is that a married minor is considered emancipated for the purpose of dealing with divorce, custody and support, but an unmarried minor is in a legal limbo vis a vis his or her offspring. Is there any legal or policy reason, given Mississippi’s high rate of unmarried parenthood, why we do not go ahead and recognize that young, unmarried parents, at least in the 18-21 age group, should not also be considered emancipated for the purpose of dealing with child custody and other parentage issues? Young people in that age group are emancipated by law to deal with their choses in action, so why do we not emancipate them by statute to deal with their parentage issues?
I wish that the legislature would look at this issue in light of the reality many of see every day in our state: children are having children. We have to have effective ways to deal with that.
A UCCJEA TUG-OF-WAR
March 6, 2013 § Leave a comment
Many lawyers believe that the six-month provision of the UCCJEA fixes jurisdiction in the home state of the child. That’s not always the case, though.
Take, for instance, the case of Clifton v. Shannon, decided by the COA June 26, 2012.
Thomas and Dawn Clifton were divorced in DeSoto County in 1999. Dawn was awarded physical custody of their three-year-old daughter, Ashley, and they were to share joint legal custody. Thomas had reasonable visitation.
In December, 2005, Dawn moved to Colorado and remarried. In 2006, they entered into an agreed judgment adjusting visitation to accommodate the move.
In 2010, Thomas filed a petition in the Chancery Court of DeSoto County seeking modification of custody an an adjudication of contempt.
Dawn objected to jurisdiction, pointing out that Ashley’s home had been in Colorado for the preceding four-and-one-half years, and that there were no significant connections to Mississippi that would justify exercise of jurisdiction.
The chancellor took jurisdiction and awarded Thomas custody, based primarily on Ashley’s preference, and Dawn appealed. She challenged both jurisdiction and the chancellor’s substantive ruling.
On the issue of jurisdiction, here’s what Judge Fair’s opinion stated:
¶7. “Whether a court had jurisdiction under the UCCJEA to hear a child-custody dispute is a question of law, which we review de novo.” Miller v. Mills, 64 So. 3d 1023, 1026 (¶11) (Miss. Ct. App. 2011) (citing Yeager v. Kittrell, 35 So. 3d 1221, 1223 (¶¶12, 14) (Miss. Ct. App. 2009)). However, the factual findings underpinning the jurisdiction question are reviewed under the familiar substantial evidence and abuse of discretion standard. See White v. White, 26 So. 3d 342, 346-48 (¶¶10, 14) (Miss. 2010).
¶8. In Yeager, this Court stated “[a] court issuing an initial determination has continuing jurisdiction over the parties; no other court may modify the decree.” Yeager, 35 So. 3d at 1224 (¶16) (citing Miss. Code Ann. § 93-27-201 (Supp. 2009)). However, even if only one party remains in the state, a second state may modify the order if the issuing court finds that neither the child, nor the child and one parent, have a significant connection with the state, and that substantial evidence is no longer available in the issuing state. Only the issuing state may make this determination. Id. (internal citation omitted).
¶9. There was sufficient evidence that Ashley still maintained a significant connection to Mississippi because her father and extended family reside here. In a recent opinion addressing a chancery court’s jurisdiction over a proceeding for modification of custody, the Mississippi Supreme Court held that since the father had continuously resided in Mississippi:
[I]t was within the chancellor’s discretion to determine that both the child and [the father] had a “significant connection with this state.” Therefore, the chancery court properly has retained continuous, exclusive jurisdiction over [the] matter . . . . White v. White, 26 So. 3d 342, 347-48 (¶14) (Miss. 2010).
¶10. The DeSoto County Chancery Court was the court of original jurisdiction. Nothing in the record suggests that the chancellor erred in retaining jurisdiction. In fact, the Colorado court, where Dawn filed another custody action, had declined jurisdiction on the emergency relief that was requested and did not assume jurisdiction.
¶11. Dawn further contends that Mississippi is an inconvenient forum, as “the overwhelming abundance of substantial evidence and witnesses” with regard to the child’s home life are located in Colorado. She cites Mississippi Code Annotated section 93-27-207, which states in pertinent part:
(1) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.
(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) The length of time the child has resided outside this state;
(c) The distance between the court in this state and the court in the state that would assume jurisdiction;
(d) The relative financial circumstances of the parties;
(e) Any agreement of the parties as to which state should assume jurisdiction;
(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) The familiarity of the court of each state with the facts and issues in the pending litigation.
(Emphasis added.)
¶12. While Colorado may have been a more convenient forum for Dawn, the chancery court is endowed with the discretion to make that decision. Prior custody proceedings were conducted in Mississippi, and Ashley spent several weeks in Mississippi during the year visiting her father and family. We find that Mississippi was an appropriate forum and that the chancery court properly retained exclusive jurisdiction.
What you can draw from this aspect of the case is that the chancellor will have broad discretion in making a determination whether as the court of original jurisdiction it should take jurisdiction. You would be wise to make a record invoking as many of the factors set out in 93-27-207 as are applicable and favorable to your client’s side of the case. That discretion is not unfettered; there should be some basis in the record to support it. It seems to me that “The nature and location of the evidence required to resolve the pending litigation …” and “The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence …” would be the key factors on which to focus your efforts.
Another lesson: don’t stop your analysis with where the home state of the child is located. That’s only one of a number of factors.
Remember that only the issuing state may determine whether it should continue to exercise jurisdiction. And MCA 93-27-202(1) provides that the original state no longer has continuing, exclusive jurisdiction after both parents have moved from the original state.
NAMING NAMES
January 29, 2013 § 1 Comment
The COA’s decision in Powell v. Crawley, handed down January 22, 2013, presents an opportunity to remind you of several aspects of name changes about which you need to be aware.
Christina Crawley gave birth to a baby daughter on January 29, 2010. The following day, Chase Powell, who was not married to Christina, signed two forms provided by the Mississippi Department of Health. The first form was an acknowledgment of paternity. The second was a “Name of Child Verification Form,” which included the following language:
By my signature[,] I verify and agree that the [c]hild’s name as it appears in Item 1 of the birth certificate and Item 1 of [the verification form] is the name to be given to the child by the mother and I, and the name is spelled in accordance with our wishes.
The verification form also included the following statement:
The name given a child on the Certification of Live Birth establishes the legal identity of that child, and as such attention to the spelling of the name must be exercised. Traditionally, the [c]hild’s last name is the same as the [f]ather’s last name as listed on the Certificate of Live Birth, or, in cases where the mother is not married at any time from conception through birth and there is no “Acknowledgment of Paternity,” the [c]hild’s name is the legal last name of the mother at the time of birth. However, parents are not required to follow tradition and may name the child any name of their choosing.
Chase verified the child’s name as Carsyn Michelle Crawley.
Nine months later, Chase filed a complaint in chancery court seeking an adjudication of paternity, child support, and visitation. He also asked to change Carsyn’s surname to Powell. At hearing, the matter was presented solely by argument of counsel, who offered the forms described above for the court’s inspection.
The chancellor ruled that Chase had waived his right to have the child’s surname changed when he signed the verification form.
The COA affirmed the chancellor’s decision, but not for the reason assigned by the trial judge. Judge Irving, writing for the majority, said:
“We need not decide whether the chancery court abused it[s] discretion in refusing to grant the requested relief because, as stated, Powell failed to make the State Board of Health a respondent. Therefore, the chancery court could not have granted the relief even if it had wanted to. See Tillman v. Tillman, 791 So. 2d 285, 289 (¶13) (Miss. Ct. App. 2001) (stating that it is the standard practice to affirm the trial court’s decision when the right result has been reached even if for the wrong reason).”
So here are a few nuggets to take away from this decision:
- If you are seeking to change a person’s name only, then you proceed under MCA 93-17-1(1), which would obviously require in a case such as Chad Powell’s that the mother and father would be parties.
- Another frequent cause of name changes is post-divorce, when the name change was not included in the divorce judgment and the petitioner wants a court order to get Social Security, driver’s license, retirement and other records straight. That kind of name change is also governed by MCA 93-17-1(1). It would be an ex parte action, since there is no other interested party.
- If you wish to change the name on the birth certificate, then you proceed under MCA 41-57-23, which requires that you make the State Registrar of Vital Records a party. Typically, lawyers simply mail a copy of the complaint to the State Board of Health with a request for a response, and the agency will file an answer, most often either admitting the relief sought or leaving it up to the court. If you fail to make the agency a party, you can expect a result strikingly similar to Chad Powell’s.
- MCA 93-17-1(2) allows the court to “legitimize” a child when the natural father marries the natural mother. Since that relief would include adding the father to the birth certificate, you should comply with MCA 43-57-23 and make the State Registrar of Vital Records a party.
- There is a dearth of case law as to how the statutes authorizing establishment of paternity via acknowledgment interact with the statutes for parentage (paternity), child support, custody and visitation. If I were in practice, I think I would have advised Chase to file the parentage action as he did so as to open up all of the other relief incidental to being the father. Acknowledgment of paternity is only that; it does not confer visitation or custodial rights, does not set child support, and may even be set aside in certain conditions.
- This decision sidestepped the question of the chancellor’s authority and scope of discretion in changing the child’s name. Since it is not res judicata as to the State Bureau of Vital Statistics, I would guess that Chase could file his suit again, this time making the agency a party. Maybe then we’ll get an answer.
The Better Chancery Practice Blog 