Child Custody | The Better Chancery Practice Blog

UPDATED CHECKLIST OF CHECKLISTS

May 27, 2011 § 5 Comments

Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.

Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.

Here is an updated list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

UNDERAGE DRINKING AND CUSTODY

May 18, 2011 § 2 Comments

We are all familiar with the scenario: Modification case pending and one of the facts supporting the charge of material change/adverse effect/best interest is the fact that mom allowed junior and his friends to have beer at a senior graduation party she allowed to take place at her home. Dad, who wants the modification, is incensed. Mom minimizes it, insisting that no one got drunk, no one was allowed to operate a vehicle after drinking, and besides, these are all young men and women who are about to go off to college, and what’s the big deal?

The Mississippi Legislature passed a bill, effective July 1, 2011, that amends MCA § 67-3-70, to prohibit adults from allowing a party to take place at a private residence or private premises if a minor at the party obtains any alcoholic beverage or beer and the adult knows or reasonably should have known that the minor has done so. The offense is a misdemeanor punishable by a fine of $1,000 or not more than 90 days incarceration.

The public policy of the state, then, appears to weigh against mom’s position.

I don’t find a case where the issue was squarely before the appellate courts. I have seen cases at the trial level where the issue is raised among others with respect to custody. In the case of Self v. Lewis, decided by the COA on May 17, 2011, there is this language at ¶ 40: “Providing alcohol to a minor is a crime, and the “[c]ommission of crimes by a custodial parent . . . is properly the concern of a chancellor.” Sullivan v. Stringer, 736 So. 2d 514, 516 (¶14) (Miss. App. 1999). In Self, the custodial father had a relationship with an 18-year-old woman to whom he served alcohol. Sullivan involved the crime of cohabitation.

THE IMPACT OF SEX OFFENDER STATUS ON CHILD CUSTODY AND VISITATION

May 16, 2011 § 3 Comments

As the roll of registered sex offenders increases, it seems to be a more frequent phenomenon that one or more persons with sex offender status are involved in chancery court proceedings. Some of the scenarios I have seen include:

Mom with custody marries a registered sex offender, triggering a modification battle.
Dad is convicted of a sexual offense requiring registration not involving the children of the marriage, and wants visitation.
Grandparents have had custody per a Youth Court order and have filed for permamnent custody in chancery, and a parent is a sex offender.

I posted here about the changing registration requirements that will go into effect this summer.

Sex offender status has been found by the appellate courts to have a significant bearing on custody proceedings. In the case of Burrus v. Burrus, 962 So.2d 618 (Miss. App. 2006), the COA affirmed modification where the mother had cohabited with and then married a man who had been convicted for four counts of indecency with a 14-year-old child. The children at issue in the modification case were teenagers. There were other facts that supported the modification. In a case appealed from my court, the COA had no trouble agreeing that the mother’s remarriage to a registered sex offender who had been convicted of statutory rape of a 15-year-old was a material change that had an adverse effect on the parties’ five-year-old daughter, so that the best interest of the child should be examined. That case was remanded on other grounds. A.T.K.v. R.M.K.W., rendered November 24, 2009.

Where the parent has been guilty of sexual abuse of one or more of the children of the marriage, that conduct is a basis for termination of parental rights under MCA § 93-15-103(3)(c), or (f), or (g), or 93-15-103(5).

The restrictions imposed on a sex offender by statute may also seriously impact other decisions affecting the parent-child relationship. In a case where the father, for instance, has been guilty of a sexual offense requiring registration that does not involve any of the children of the marriage, his or her contact with the children will be affacted by at least these restrictions:

The sex offender is subject to the requirements and restrictions of MCA § 45-33-1, et seq. As a registered sex offender, he or she must remain registered with the Mississippi Department of Public Safety until relieved of that obligation by court order, and the registration requirement will follow the offender to other states. Anyone can access the database to discover a person’s sex offender status, so it is reasonable to conclude that the children will be made aware of that information by their schoolmates or others. Moreover, child advocacy groups even post photos of the offenders on billboards where the children and all of their friends, schoolmates and members of the community may see. The notoriety is almost certain to have some effect on the child’s relationship with the parent.
MCA § 45-33-32, provides that if the sex offender volunteers for an organization in which volunteers have direct, unsupervised contact with minors, he or she is required to disclose the conviction to that organization in writing, and the organization is required to notify other volunteers of the disclosure before accepting his or her service. If the offender is accepted by the organization, the organization must notify the parents or guardians of any minors involved in the organization of the criminal sex offense. The statute does not limit the requirement to organizations in which the offender would have direct, unsupervised contact with minors, but rather applies to organizations in which any volunteers have such contact. Thus, the offender may not evade the requirement by limiting his volunteer duties to those that do not involve direct, unsupervised contact with children. Some organizations to which the requirement pertains would include, but not be limited to, Girl Scouts, Brownies, Campfire Girls, Boy and Cub Scouts, RA’s, sports teams, sports league administration, sports league concessions and activities, gymnastics, dance, church activities of all kinds (not merely those directly involving children, since other volunteers are involved with children), school activities of all kinds, and civic organizations engaged in activities within the statute. In other words, if the sex offender intends to be involved in any of the child’s organized extra-curricular activities, such as coaching sports teams, or cooking out for the youth group at church, or selling concessions for the church or school carnival, all parents and guardians of all children involved will need to be put on notice. The repercussions for the child are not hard to imagine, and would not likely be in the child’s best interest.
The sex offender’s activities in and around public or private pre-schools, elementary schools and secondary schools are greatly restricted. MCA § 45-33-26 prohibits the sex offender from: (a) Being present in any school building, on school property, and on any school transportation when persons under the age of 18 years are present; (b) Standing or sitting idly, whether in or outside of a vehicle, within 500 yards of a school or school property, or remaining in or around school property, when persons under the age of 18 years are present.
MCA § 45-33-26 (2)(a), does allow a registered sex offender who is a parent or guardian of a child to come onto school property where that child is enrolled for purposes of dealing with that child’s teachers, administrators and records, provided that the sex offender complies with certain notice requirements and remains under direct supervision of a school official. The statute makes no exception for a person claiming to be in loco parentis, or for the spouse of a parent or guardian, or even for another relative who is a sex offender.
A registered sex offender may go onto the property of a school to vote if that is his or her polling place for the specific purpose of voting.
A sex offender is prohibited by MCA § 45-33-25 (4)(a), from establishing a residence within 1,500 feet ” … of the real property comprising a public or nonpublic elementary or secondary school or a child care facility.”
Under MCA § 45-33-59, if the sex offender is employed, or contracts with a person to provide personal services, in a position that will bring him into “close regular contact” with children, he or she must notify the employer or person with whom he contracts.

Experts in custody proceedings have opined about the dangers of recidivism applicable to various sexual offenses. In the statutory rape case I had, an expert testified that the danger of a repeat offense was low for that particular crime. The Mississippi Legislature, however, has made an affirmative finding in MCA § 45-33-21, which states, “The Legislature finds that the danger of recidivism posed by criminal sex offenders and the protection of the public from these offenders is of paramount concern and interest to the government.” The statement is not dispositive of the issue in and of itself, but it does provide a starting point.

It is well to bear in mind the basic law of custody and custody modification when considering how to deal with the involvement of a sex offender in a custody action.

The polestar consideration in child custody cases is the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). A change in custody is a jolting, traumatic experience. Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss. 1983). Children should not be bounced from one household to another like a volleyball. Tucker v. Tucker, 453 So.2d 1294, 1298 (Miss. 1984). The best interests of a child require that the child have some degree of stability in his or her life. Tucker, at 1297. Only parental conduct that poses a clear danger to the child’s mental or emotional health can justify a custody change. Morrow v. Morrow, 591 So.2d 829, 833 (Miss. 1991).

Chancellors are also charged with considering the totality of circumstances. In Tucker, at 1297, the Mississippi Supreme Court held that, “Before custody should be changed, the chancellor should find that the overall circumstances in which a child lives have materially changed and are likely to remain materially changed for the foreseeable future and, of course that such change adversely impacts upon the child.” If, after examining the totality of circumstances, a material change in circumstances is found to have occurred, the chancellor must separately and affirmatively determine that this change is one that adversely affects the minor child. In re E.C.P., 918 So.2d 809, 823 (Miss. App. 2005).

There is a three-prong test for modification: a substantial change in circumstances of the custodial parent since the original custody decree; the substantial change’s adverse impact on the welfare of the child; and the necessity of custody modification for the best interest of the child. Sanford v. Arinder, 800 So.2d 1267, 1272 (Miss. App. 2001). The test for modification is like a three-legged stool; if one leg is removed or missing, the stool falls. If one prongs of the test is removed or missing, the case falls.

In Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996), the court stated, ” … we further hold that when the environment provided by the custodial parent is found to be adverse to the child’s best interest, and that the circumstances of the non-custodial parent have changed that he or she is able to provide an environment more suitable than that of the custodial parent, the chancellor may modify custody accordingly.” The court in Riley added:

“We further hold that where a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment. * * * A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.”

Riley does not mandate that dangerous or illegal behavior be present in order to modify custody, and a chancellor is not required to wait until a child’s safety is in question before removing him or her from an obviously detrimental environment. Duke v. Duke,956 So.2d 244, 251 (Miss. App. 2006).

TENDER YEARS DOCTRINE CONTINUES TO WANE

May 9, 2011 § 4 Comments

It is an ancient principle embedded in Mississippi family law that if the mother of a child of tender years – especially a female – is fit, then she should have custody. Kyzar v. Kyzar, 248 Miss. 59, 157 So.2d 770 (1963); Brown v. Brown, 237 Miss. 53, 112 So.2d 556 (1959); Boswell v. Pope, 213 Miss. 31, 56 So.2d 1 (1952); Johns v. Johns, 57 Miss. 530 (1879). The principle came to be known as the “tender years doctrine,” and over time it grew into a rule, eventually extended into to the generally-accepted wisdom that the mother was favored in child custody disputes.

As late as the 1980’s, the tender years doctrine exerted its hegemony. One example is the remarkable case of Buntyn v. Smallwood, 412 So.2d 236 (Miss. 1982), in which the supreme court reversed a chancellor’s denial of a mother’s modification of custody where the mother had remarried and stabilized her situation and the father, who had custody from the divorce, worked offshore. From the opinion, it appears that the father’s work situation had not changed at the time of the modification, but the mother’s situation had improved. A Kramer vs Kramer-type situation, for sure. The case illustrates just how strong a magnetic force the tender years doctrine exerted on our jurisprudence.

An early chink in the doctrine’s armor appeared not long after Smallwood in the case of Cheek v. Ricker, 431 So.2d 1139, 1145 (Miss. 1983), where the court stated that ” … it hardly seems rational that the age of a child should per se lead to any particular result.”

Then came Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983), which enunciated the rule that the polestar consideration is the best interest of the child, and that a factor such as the age of the child was to be weighed along with other specified factors against what would be in the child’s best interest. Even Albright, however, expressly rejected the idea that the tender years doctrine should be discarded.

In the years since, the doctrine has weakened further. In Mercier v. Mercier, 717 So.2d 304, 307 (Miss. 1998), the court held that a child is no longer considered to be of tender years when it can be cared for by others. In Copeland v. Copeland, 904 So.2d 1066, 1075 (Miss. 2004), the supreme court upheld the decision to award custody of a two-year-old boy to his father. In Lee v. Lee, 798 So.2d 1284, 1289 (Miss. 2001), the court stated that a child four years of age was no longer of tender years. In Torrence v. Moore, 455 So.2d 778, 780 (Miss. 1984), the court found that a seven-year-old child was “long past” tender years.

In 2000, MCA § 93-5-24 was amended to add this language as subsection (7): “There shall be no presumption that it is in the best interest of a child for the mother to be awarded either legal or physical custody.”

Most recently, on May 3, 2011, the doctrine continued its fade in Kimbrough v. Kimbrough, at ¶ 37-38, where the COA upheld the chancellor’s finding that the Albright factor of the “Age, health and sex of the child” favored neither party. The judge found that the parties’ five-year-old daughter was not of tender years and awarded custody of the child to the father. The mother argued that the child was of tender years, and that she should have been favored. The COA rejected her argument and upheld the chancellor’s award.

If the tender years doctrine is not dead, it is at least moribund. If you are still advising your clients that the mother is favored in custody actions, you need to do a little reading and re-examine your position. Custody will be awarded to the fit parent who prevails on the Albright factors.

A JURISDICTIONAL BOOMERANG

May 5, 2011 § 1 Comment

We sometimes are not as attentive to the requirements of the UCCJEA as we should be. Take the following case, for example:

Delisa Miller and Ryan Mills began living together in Madison Parish, Louisiana, in 2005. They had two children, a son born in 2007, and a daughter born in 2008. Ryan went to prison in December 2008, at which time Delisa and the children moved to Vicksburg, Mississippi, according to Ryan’s pleadings.

On July 14, 2009, after he was released, Ryan filed pleadings in Louisiana to establish parentage, for custody, and for visitation. His pleading recited that, although Delisa was residing in Mississippi, her domicile remained in Louisiana. On July 23, 2009, Delisa filed a petition for custody in the County Court of Warren County, Mississippi. Her case was referred to Warren County Youth Court, which dismissed it on the basis that Louisiana already was exercising jurisdiction.

On August 3, 2009, the Louisiana court held a hearing in Delisa’s absence, finding that it had jurisdiction under Louisiana’s long-arm statute, and granted Ryan visitation.

Ryan filed pleadings in the Chancery Court of Warren County seeking to register the Louisiana judgment, which Delisa opposed, and the chancellor ruled on October 23, 2009, that the judgment was lawful and binding, and that it should be registered and enforced. Delisa appealed.

In Miller v. Mills, decided May 3, 2011, the COA noted that the Mississippi courts are required by MCA § 93-27-203(l) to enforce another state’s child custody determination if the other state “exercised jurisdiction in substantial conformity with [the UCCJEA].” The COA held that the record did not support a finding that Louisiana was the children’s home state within the meaning of the UCCJEA at the time that Ryan commenced his Louisiana action, and that, as a result, Louisiana did not exercise jurisdiction in substantial conformity with the UCCJEA. The court held that registration of the Louisiana order in Mississipi was void. The trial court’s ruling was reversed and rendered.

Ryan had argued that, since the Louisiana court had obtained jurisdiction over Delisa through that state’s long-arm statute, he had the right to proceed. Judge Maxwell’s opinion brushed aside that argument and pointed out that UCCJEA jurisdiction is subject matter jurisdiction that may not be waived or conferred by consent.

This case stands for the proposition that the UCCJEA’s provisions are absolutely jurisdictional, and unless a jurisdictional basis exists pursuant to its provisions, jurisdiction may not be acquired by some other means.

I have seen many cases where the lawyers take a somewhat relaxed approach to the UCCJEA requirements. You do so at your own peril. The case you thought you had dealt with so deftly could come boomeranging back in quite unwelcome fashion.

NEW REGISTRATION REQUIREMENTS FOR SEX OFFENDERS

May 3, 2011 § 1 Comment

Knowing whether a person is a sex offender is an important fact in custody and visitation determinations. The restrictions imposed by statute on sex offenders and their impact on child custody and visitation are subjects of another post to come. This post addresses the reporting requirements.

Effective July 1, 2011, MCA 45-33-21 is amended to greatly expand the reporting requirements in several important respects. Here are the highlights:

The offenses included are expanded to embrace several new categories of offenses, including ” … condoning by the parent, legal guardian or caretaker of continuing sexual abuse of a child.”
Non-residents who are employed or attending school in Mississippi must register.
The list of jurisdictions in which the offender was convicted is expanded to include the District of Columbia and most, if not all, U.S. territories and possessions.
The offender must register not only with the Department of Public Safety (DPS), but also with the sheriff of each county where the registrant resides, works, and attends school.
Volunteer work, unpaid internships and transient and day-labor work must be reported.
The duty to report changes in name and status is clarified, and the use of false information is added as an additional ground for a finding of non-compliance with the reporting requirement.
Offenders are required to report all temporary residence locations, telephone numbers, passport and immigration information, and all professional licenses.
Registrants must report within three days any change in vehicle information and internet identifiers.

There are more requirements. DPS is ordered to forward the registraion info to schools and public housing agencies in the affected areas, as well as law enforcement and other entities.

I suggest you read the law. It can be critical information in a child custody case. I have a post coming up soon on how the status of sex offender affects many important aspects of custody and visitation.

TOP TEN WAYS TO DESTROY A CHILD IN A DIVORCE OR CUSTODY CASE

April 20, 2011 § 3 Comments

If you have practiced family law any amount of time, you will marvel at the ingenuity of parents and other family members in devising ways to warp, hurt, demoralize and destroy children.

Here are some of the most effective:

Use the children as pawns. Trash the non-custodial parent’s mail to the child, or hide birthday or Christmas presents. Use denial of visitation or contact as a tool to retaliate. Then tell the child it’s all the other parent’s fault.
Use the children as spies. Nobody makes as good a spy as an insider. So what if it puts the children in the middle, or makes them feel like traitors, or makes them choose sides. As long as I get what I want, what does it matter, right?
Deny the other parent access to the children. Very effective, especially when coupled with exagerrated or false claims of physical or sexual abuse. Utilized long enough, this tactic can completely estrange the children from the non-custodial parent. This ploy is so effective that children who grow into adults having experienced it often enjoy years of counselling.
Make the children feel guilty for loving the other parent. This one is guaranteed to create maximum warpage. “Who do you love the most, me or mommy?” Some parents even punish the child for a “wrong” answer.
Use the children as messengers. Mommy and daddy won’t talk to each other like adults, so the child is given notes, medical bills, school records, and so on. This is an effective way to put the children right in the middle, and to let them in on adult concerns. Gives them something more to worry about, and shifts the responsibility off of the parents.
Criticize the other parent to the children. It really feels great to unload all of the hurt and anger you have toward your ex, and who is better than the children to understand exactly where you’re coming from? It feels super to get that off your chest — right onto the children.
Model vindictive and spiteful behavior. “Do as I say, not as I do” is the motto of parents who engage in this behavior. Only problem is, that philosophy has never worked when raising children. But who cares? It’s worth it to take a swipe at the old ex, right?
Ignore the children’s stress and negative behavior brought on by the litigation. Tell the children to quit that silly crying, or stop misbehaving or I’ll whip you, or “Quit acting like a baby.” None of that sissy stuff like holding and reassuring them, asking them to share their concerns, or simply devoting some one-on-one attention.
Try to “win” the children over by relaxing discipline. Parents who want to be the child’s best friend, not an authority figure. Guaranteed to win the child over to that parent’s “side,” and to undermine the authority of the other “mean” parent. The fly in this ointment is that after a while the child won’t mind you no matter what. But that’s okay as long as you’re best buds, huh?
Use the children as targets to vent your own anger and frustration. What’s wrong with lashing out at junior after a particularly frustrating conversation with your ex? Everything.

As lawyers, you can exercise a lot of influence over your client’s behavior. I can’t think of a more important subject about which you can influence your client than how to keep the children from being hurt in a divorce.

A HELPFUL VISITATION RESOURCE

April 14, 2011 § Leave a comment

Mississippi Department of Human Services’ Division of Child Supprt Enforcement has a program designed to aid non-custodial parents with visitation. You can read about Mississippi’s Access and Visitation Program (MAV-P) by clicking on the link. The site includes contact information.

MAV-P offers parents who have a court order a neutral facility for visitation and supervised visitation.

For parents without a court order, the program offers a mediation service.

Also included are parenting education and fatherhood mentoring.

Neither parent is required to be a recipient of DHS benefits, but paternity must be established in all cases as a prerequisite to participation in the program.

Any lawyer who has done much custody work can tell you that visitation cases can be as difficult and touchy as the most hotly contested custody cases. Since Wesley House in Meridian stopped offering supervised visitation some time ago, it has been a challenge to come up with a viable solution when confronted with the need for supervision. Now it appears that we have a way. I have tried to communicate this information to as many of our guardians ad litem (GAL’s) as possible. And now you are in the loop. Please let me hear from you about the effectiveness vel non of this program.

CAVEAT: One of the Lauderdale County GAL’s informed me that she tried to invoke these services only a couple of months ago and was told that this office did not have such a service. If she was informed correctly, that’s more ammunition for those who have questioned whether Lauderdale County DHS is functioning as it should.

THIRD-PARTY CUSTODY: HOW UNFIT IS UNFIT?

March 22, 2011 § 1 Comment

The law that applies in custody disputes between natural parents and third parties is not the same as that in custody disputes between two natural parents. “The well settled rule in a child custody case between a natural parent and a third party is that it is presumed that the best interest of the child will be preserved by being in the custody of the natural parent.” Sellers v. Sellers, 638 So.2d 481, 486 (Miss. 1994).

The Mississippi Supreme Court addressed the scope of this presumption in Stacy v. Ross, 798 So.2d 1275, 1279-80 (Miss. 2001), in which the court cited the U.S. Supreme Court decision in Traxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2056, 147 L.Ed.2d 49 (2000): “The Traxel court said, ‘as long as a parent adequately cares for his or her child (i.e., is fit) there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.’”

The presumption in favor of natural parents in custody matters may, however, be rebutted and overcome. In McCraw v. Buchanan, 10 So.3d 979, 983-4 (Miss. App. 2009), the court pointed out that, in addition to the numerous cases holding that the presumption may be rebutted, MCA § 93-13-1 states that “ … if any father or mother be unsuitable to discharge the duties of guardianship …” then another party may be appointed guardian.

In Sellers, at 606, which is regarded as one of the leading cases on custody issues between natural parents and third parties, the court set out a three-part test against which the trial judge is required to measure the proof in the case:

“In order to overcome the presumption there must be a clear showing that (1) the parent has abandoned the child, (2) the conduct of the parent is so immoral as to be detrimental to the child, or (3) the parent is mentally or otherwise unfit to have custody of the child.”

The case of In Re Guardianship of Brown, 902 So.2d 604 (Miss. App. 2004), was an appeal from a chancellor’s decision awarding custody to a maternal grandmother based on a finding that the father was “otherwise unfit.” The appellate court looked to MCA § 93-15-103(3) as a helpful guide to the kinds of conduct that might constitute “otherwise unfitness.” The statute, which deals with termination of parental rights, enumerates categories of parental behavior that would warrant severing the relationship between parent and child. The court said:

“Abandonment, moral unfitness, and mental unfitness are all included in this statute; therefore, we find that a reading of this statute is helpful in deciding what types of factors a court should consider in deciding whether a natural parent is otherwise unfit for taking care of his children. In fact, courts have used exactly the same language explaining the burden of proof in termination of parental rights cases as they have used in explaining the rights of a natural parent to have custody over a third party: “In termination of parental rights cases the petitioner must prove that the natural parent either abandoned or deserted the child or is mentally or morally or otherwise unfit to rear or train the minor child.” N.E. v. L.H., 761 So.2d 956, 961 (Miss. App. 2000), (citing Petit v. Holifield, 443 So.2d 874, 877 (Miss. 1984).

The Brown court found that the statute is a legislative policy statement in favor of natural parents retaining their rights as parents, including the right to custody, and the decision goes on to state:

“We find that denial of custody to a natural parent in favor of a third party should be granted only when there is a clear showing that the natural parent has relinquished his parental rights, that he has no meaningful relationship with his children, or that the parent’s conduct is clearly detrimental to his children.” Brown, at 607.

Brown also includes the following language at page 609 on the question of “otherwise unfitness” that provides some helpful guidance for the trial court:

“The chancellor decided that Mr. Brown was not entitled to custody because he was otherwise unfit as a parent. Although a court is within its discretion to deny custody to a natural parent based on miscellaneous grounds, it must also appreciate the seriousness of granting custody to a third party over a natural parent. In awarding custody to a third party, the Mississippi Supreme Court has stated the natural parent presumption as early as the year 1900: “[Children] must and ought to be subject to the custody and control of those who are immediately responsible for their being, for the reason that by nature there has been implanted in the human heart those seeds of parental and filial affection that will assure to the infant care and protection in the years of its helplessness …. that the primary object is the interest of the child, the presumption of the law is that its interest is to be in the custody of its parent.” Hibbette v. Baines, 78 Miss. 695, 704, 29 So. 80, 81 (1900) (quoting Weir v. Marley, 99 Mo. 484, 12 S.W. 798, 800 (1890)). This presumption is overcome only by clear and convincing evidence. In overcoming this presumption, especially when making the determination on miscellaneous grounds, a court should look for factors that indicate a natural parent’s absence of a meaningful relationship with his child or behavior of the parent that is clearly detrimental to his child. In this case, the chancellor denied custody to Mr. Brown due to his inability to pay his child support in full and his inability to visit his children on a regular basis. In doing so, the chancellor was, in effect, denying Mr. Brown custody on the grounds of abandonment while simultaneously holding that Mr. Brown had not abandoned his children.

Even though Mr. Brown’s children are well cared for by their grandmother in Mississippi, a finding of unfitness is necessary to award custody to a third party over a natural parent. This finding is necessary before the court can decide the best interests of the children. In re Custody of M.A.G., 859 So.2d 1001, 1004(¶ 7) (Miss.2003). We find that the chancellor incorrectly applied the law in finding that Mr. Brown was an unfit parent. We also find that the chancellor’s holding that Mr. Brown was not emotionally available for his children is unsupported by the record.”

In order for a third party to overcome the presumption in favor of the natural parent’s right of custody, then, there must be a showing, by clear and convincing evidence, that the natural parent has abandoned the child, or that the natural parent is entirely unfit to have custody because the natural parent has relinquished his parental rights, or because he has no meaningful relationship with his children, or that the parent’s conduct is clearly detrimental to his children.

The parental presumption no longer applies if the natural parent has voluntarily given up custody of a minor child by court order. Grant v. Martin, 757 So.2d 264, 266 (Miss. 2000).

Also, a parent may be found to have “constructively abandoned” a child without conduct as extreme as MCA § 93-13-1 if the court finds that the parent has voluntarily abandoned parental responsibility and removed himeslf from active participation in the child’s life for so long that the effect is the same as actual abandonment. In Hill v. Mitchell, 818 So.2d 1221, 1226 (Miss. App. 2002), the case in which the court of appeals enunciated the concept, the mother had left her child with grandparents for eleven years under a temporary court order, but had remained in regular contact with the child.

OVERNIGHT GIRLFRIENDS: NOW WELCOME?

March 2, 2011 § 3 Comments

And boyfriends, too, for that matter.

It has long been a widespread practice in chancery court to enjoin the parties from having a girlfriend or boyfriend spend the night when the minor children are present. This language is lifted from a recent judgment in this district:

“The parties are each enjoined from having a person of the opposite sex, to whom the party is not related by blood or marriage, present at any time between the hours of 9:00 p.m. and 9:00 a.m. when the minor children are present.”

The expected beneficial effect being that the children are not exposed to an inappropriate relationship and modelling of improper behavior. Seems like a worthwhile goal.

I have heard it questioned from time to time whether the court has authority to enter such an injunction in the face of some case law that discourages restrictions on visitation.

The matter may have been resolved in Howell v. Turnage, decided March 1, 2011. In that case, the chancellor had applied the familiar injunction, and the COA reversed his decision. Here’s what the COA said:

“At the close of the modification hearing, the chancellor voiced concern regarding Hannah’s visiting Mitchel’s home when his girlfriend was also spending the night. Consequently, the chancellor restricted Mitchel’s visitation with his teenaged daughter, Hannah. Specifically, the chancellor prohibited overnight visitation with Hannah “in any dwelling where a member of the opposite sex, to whom [Mitchel] is not related is also spending [the] night.”

¶16. The chancellor has broad discretion in determining visitation and imposing restrictions upon it. Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss. 1992). However, absent a finding of ‘actual danger or other substantial detriment to the children,’ a chancellor may not restrict a non-custodial parent’s visitation. Id. There was absolutely no evidence in the record that overnight visits in the presence of Mitchel’s girlfriend adversely affected Hannah. Therefore,the chancellor abused his discretion in placing a restriction on Mitchel’s visitation.”

Dunn, you may recall, is the case where the chancellor had entered a broad injunction against the husband ever having the minor children in the presence of the woman with whom he admitted having an adulterous affair. The injunction lumped together innocuous conduct such as attending church or a concert, dining out at MacDonald’s, or grocery shopping, with questionable and even outrageous conduct such as kissing, sleeping in the same bedroom, engaging in sex, and walking around the house in negligees. No rational person can question that there is a considerable distinction between the two kinds of conduct.

The Howell v. Turnage case was not remanded for the chancellor to hear whether there might be any such proof. It was rendered outright on the point. So the message we are to draw, apparently, is that the door is closed on such injunctions unless there is proof that the girl/boyfriend’s presence adversely affects the child.

Strictly my own opinion: This kind of living arrangement is probably standard operating procedure in the “sophisticated” big cities like Jackson, but I don’t think this will go over too well with the more respectable folks in New Hebron and Monticello, or in Quitman, Meridian, Zero or Shubuta, for that matter. Folks in these more “backwards” areas think that exposure of children, especially impressionable children in their early teenage years, to that kind of situation is per se harmful to them. And I guess I am old fashioned enough to see their point. I wonder why the COA could not have simply said that such a restriction, minor as it is, is reasonable.

Ironically, if the chancellor is weighing the best interest of the child under the Albright factors, she can consider behavior such as allowing an overnight guest of the opposite sex in the presence of the children as a negative under parenting skills or moral fitness, but when it comes to proscribing such conduct, now we are going to tie the chancellor’s hands? Maybe it’s just me, but that doesn’t make much sense. And it certainly doesn’t seem to put the best interest of the child first.

From a practice standpoint, if you’re pursuing that injunction, don’t just assume some harm to the children. Put on some proof about how it is harmful from a behavioral, moral and any other standpoint. At least that way there will be proof in the record to support a finding, and the appellate court will have to decide whether behavioral or moral harm to a child is something that the public policy of Mississippi wants to guard against or not.

There is nothing in the holding of this case that says that agreed injunctions can’t be enforced. Negotiating such a provision now, however, will likely be more difficult.

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