Not Allowed to Testify

January 23, 2019 § Leave a comment

We visited the Sheridan v. Cassidy COA case yesterday, in which the court affirmed a chancellor’s decision not to allow the testimony of a twelve-year-old boy to testify as to his preference. There was a dissent.

In the same case, the chancellor also refused to allow either the twelve-year-old son or his eight-year-old sister to testify. The COA affirmed:

¶24. Farra also contends that the chancellor erred in summarily excluding testimony from the twelve-year-old son and the ten-year-old daughter. Farra argues that the chancellor was required to conduct a hearing pursuant to Jethrow v. Jethrow, 571 So. 2d 270 (Miss. 1990). In Jethrow, the supreme court stated that “there can be no per se prohibition against a child witness testifying in a divorce case between his parents.” Id. at 273. There, the mother wanted to call the parties’ eight-year-old child “as a witness to testify to acts of violence against her by [the father],” but the chancellor refused. Id. at 271. The supreme court reversed, concluding that certain procedures should be followed in deciding whether to
exclude “the testimony of a child witness of tender years in a divorce proceeding.” Id. at 273. First, determine if the child is competent to testify and second, determine whether it is in the child’s best interests to testify. Id. at 273-74.

¶25. Here, the chancellor did not conduct a Jethrow hearing, and neither party requested one. The chancellor did state that it was not in the children’s best interest to testify because he thought pitting the children against the parents would be detrimental to the children. He stated, “That is not fair. This is not their fight, they didn’t start it. They didn’t cause the divorce, they are the victims of it.” The chancellor further expressed his opinion that the children had been coached, so any testimony would be unhelpful. In this instance, we find no abuse of discretion by the chancellor.

If the law is that “there can be no per se prohibition against a child testifying,” then it would seem that the only way to document a refusal to allow it would be to conduct a Jethrow examination. For my part, I seldom do that with children who are in their late teens unless there is obvious immaturity, or some condition such as autism or low intelligence, or obvious intimidation. I would almost certainly conduct a Jethrow examination with an eight year old, but whether to do so with a twelve year old would depend on my assessment of the child’s maturity and mental and emotional health. If a party specifically requests a Jethrow examination, I would likely do it.

One caution: Notice that the COA pointed out that no party had requested a Jethrow exam, and then went on to uphold the judge’s findings without it. That signals to me that, if you do not request the Jethrow exam, you may well be stuck with whatever the judge’s conclusions are about whether the child or children should testify.

Not Allowed to State a Preference

January 22, 2019 § Leave a comment

Most chancellors do not like having the children testify in litigation between the parents. Among other objectionable things, it subjects them to stresses that they are often too young to bear, it forces them to choose sides, and it subjects them to a tug-of-war between the parents.

In the modification case between Farra Sheridan and her ex-husband, James Cassidy, Farra wanted to call her twelve-year-old son as a witness to state his preference, and both he and his eight-year-old sister on the merits, but the chancellor refused, stating that he believed the children had been coached and that pitting the children would not be in their best interest. He said, “That is not fair. This is not their fight, they didn’t start it. They didn’t start the divorce. they are victims of it.” Farra appealed.

In Sheridan v. Cassidy, handed down December 11, 2018, the COA affirmed. On the issue of the preference testimony of the 12-year-old, Chief Judge Lee’s majority opinion read:

¶21. Farra argues that the chancellor committed reversible error by refusing to allow her twelve-year-old son to state a preference. Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2013) provides that a child’s preference may be taken into account in determining child custody:

[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.

(Emphasis added). “[T]he chancellor is not bound by the election of a minor child.” Floyd [v. Floyd], 949 So. 2d [26] at 30 (¶12) [(Miss. 2007)]. But, if a chancellor declines to follow a child’s preference, he must place the reasons in the record. Id.

¶22. During the hearing, Farra asked that the twelve year old be allowed to state his preference. The chancellor declined this request, stating that based upon prior testimony, he believed the child had been coached by Farra. The chancellor allowed Farra to make a proffer regarding the twelve year old’s testimony. The proffer was as follows:

The twelve year old loves his father, loves his mother, would love to spend time with his father. Would prefer to be in Arkansas where he has friends, where he has extended family, where he likes to do things in Arkansas in the proximity to other places that they can go in Arkansas, outside of Benton, Little Rock, etc. And all of the things that are available there that are not in Oxford. . . . He seems to think that there is a lot of stuff to do around Arkansas that is not available here.

¶23. In his Albright analysis, the chancellor stated that he did not allow the child to testify because he had concerns that Farra had coached the child on what to say. The chancellor further stated that although this child wanted to live with Farra (based upon the proffer), “the preference of the child in this situation [did] not have much bearing on the Court with all of the factors that I have gone over thus far.” Considering that the majority of the Albright factors favored James, we find no abuse of discretion in this instance. This issue is without merit.

Affirmed on that point by the majority, but Carlton dissented, joined by Griffis and Fair, and Tindell in part:

¶27. I respectfully dissent. The chancellor abused his discretion in failing to allow the twelve-year-old son to testify regarding his preference as to custody. Anderson v. Anderson, 961 So. 2d 55, 59-60 (¶¶7-12) (Miss. Ct. App. 2007). In Anderson, this Court found that the chancery court abused its discretion in a child custody modification hearing when the chancellor failed to allow the children to testify as to their custodial preference, effectively preventing the mother from presenting her case-in-chief prior to the court entertaining the father’s motion for an involuntary dismissal under Mississippi Rule of Civil Procedure 41(b). Id.

¶28. Similarly, the chancellor’s failure to hear the testimony of the twelve-year-old child in this case not only prevented him from expressing his custodial preference, but also denied Farra the right to present her child as a witness regarding a material change in circumstances. I recognize that the version of section 93-11-65 in effect at the time Anderson was decided has since been revised to slightly weaken the child’s right to choose his custodial parent. [Fn 3] Relevant here, however, is that under either version of the statute, and under the applicable case law, a parent is entitled to present a child’s testimony regarding parental preference for custody in order to demonstrate a material change in circumstances. Anderson, 961 So. 2d at 59-60 (¶¶7-12); see also Boyd v. Boyd, 83 So. 3d 409, 418 (¶29) (Miss. Ct. App. 2011) (mother allowed to present daughter’s preference testimony).

[Fn 3] In Anderson, section 93-11-65 (Rev. 2004) provided that “any . . . child who shall have reached his twelfth birthday shall have the privilege of choosing the parent with whom he shall live.” (Emphasis added). The current statute, also in effect at the 2016 child custody modification hearing in this case, provides that if the chancellor finds the two parties fit and proper, then “the chancellor may consider the preference of a child of twelve . . . years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child.” Miss. Code Ann. § 93-11-65 (Rev. 2013)(emphasis added). The statute further provides that “[t]he chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.” Id.

¶29. In short, although under section 93-11-65 the chancellor does not have to honor the twelve-year-old child’s preference, see, e.g., Floyd, 949 So. 2d at 30 (¶12), the mother has a right to present the evidence at the custody hearing. The chancellor abused his discretion in this case by declining Farra’s request to present her twelve-year-old son’s testimony on this issue. I maintain that this case must reversed and remanded due to the chancellor’s abuse of discretion in refusing to allow the twelve-year-old son to state his preference on the record.

Here, because “a majority of the Albright factors favored” the father, the majority found no error.” That won’t always be the case, however. It’s not a good idea for a judge to curtail a party’s proof without overwhelming justification. I think this was a borderline situation; the judge found the child’s credibility dubious and did not believe it was in the child’s best interest to testify.

My opinion is that a Jethrow examination substantiating those conclusions would have made the judge’s ruling airtight.

And what about the judge’s ruling that the two children were not allowed to testify on the merits? You’ll have to wait until tomorrow.

A Totality of Circumstances Case

January 16, 2019 § Leave a comment

Modification of custody may be based on a  finding of changed circumstances that arises from a totality of the circumstances in which the child is living.

That is what happened in the case of Farra Sheridan in which the chancellor modified custody from her to her ex-husband, James Cassidy, based on multiple factors. Unhappy with the trial judge’s decision, Farra appealed.

In Sheridan v. Cassidy, a December 11, 2018, decision, the COA affirmed. Chief Judge Lee wrote the majority opinion:

¶10. “[I]n modification cases, as in original awards of custody, we never depart from our polestar consideration: the best interest and welfare of the child.” Johnson v. Gray, 859 So. 2d 1006, 1013 (¶33) (Miss. 2003) (internal quotation marks omitted). However, modification issues are different from original custody determinations. In order to succeed on a request for modification, “the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003). In Riley v. Doerner,
677 So. 2d 740, 744 (Miss. 1996), the supreme court held:

[W]here 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.

¶11. The chancellor found the following amounted to a material change in circumstances: Farra’s involvement with a married man; her numerous violations of the PSA, including allowing her boyfriend to spend the night while the children were present; her decision to abuse alcohol while taking prescription medications; her poor financial decisions; her refusal to co-parent with James; her inciting the children to access private information on James’s electronic devices; the children’s school absences and tardies related to weekend trips to Arkansas; the children’s living situation while visiting Arkansas; and issues with one child’s failure to complete school assignments. The chancellor also had concerns about Farra’s credibility.

¶12. We cannot find that the chancellor’s findings regarding a material change in circumstances were manifestly wrong or clearly erroneous …

I include this case only to illustrate for you how a chancellor may view the living situation of the custodial parent, and how Riley v. Doerner may come into play.


Registering a Foreign Custody Adjudication

November 20, 2018 § Leave a comment

You can register a judgment or order for custody (hereinafter referred to as a “judgment”) rendered by another state in Mississippi by following MCA §93-27-305. Here are the highlights:

  • You can register the judgment with or without a simultaneous action for enforcement (93-27-305(1)).
  • A pleading, petition, motion, or even a letter requesting registration is filed with the chancery clerk of any county in the state (93-27-305(1) and (1)(a)).
  • Two copies, including one certified copy, of the judgment, accompanied by an affidavit that to the best of the affiant’s knowledge and belief the judgment has not been modified, must also be filed (93-27-305(1)(b)).
  • The name and address of the person seeking registration, as well as that of any parent or person in loco parentis who was awarded custody in the judgment must be stated in the petition (93-27-305(c)); however, the confidentiality protections of 93-27-209 are available to persons who qualify.
  • Notice is served on the person(s) named in 1(c) to provide them an opportunity to contest the registration (93-27-305(2)(b)).
  • The notice must state that the judgment: (1) will be enforceable on the date of registration the same as a Mississippi domestic judgment (93-27-305(3)(a)); (2) a hearing to contest registration must be requested within twenty days of the date of service of the notice (93-27-305(3)(b)); and (3) failure to contest registration will result in confirmation of the judgment’s custody determination, and further contest will be barred (97-27-305(3)(c)).
  • A person wishing to contest registration must request a hearing within twenty days of service of notice (93-27-305(4)).
  • At a hearing to contest registration, the court shall confirm registration unless the contestant establishes that either: (1) the issuing court did not have jurisdiction under the UCCJEA (93-27-305(4)(a)); or the custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction per the UCCJEA (93-27-305(4)(b); or (3) the contestant was entitled to notice per 93-27-108 in the originating court, but was not afforded that notice (93-27-305(4)(c)).
  • If a timely request for hearing is not filed, the court orders that the registration is confirmed as a matter of law, and all persons who were served with notice are notified of the confirmation (93-27-305(5)).
  • An order of confirmation precludes further contest of any matter that could have been contested at the time of confirmation of registration (93-27-305(6)).

In Edwards v. Zyla, 207 So. 3d 1232 (Miss. 2016), the MSSC held that chancery court, not county court, was the proper forum for registration of a foreign custody determination.

The Application for joint Custody

October 9, 2018 § Leave a comment

Justin Brown and Kristin Anklum had a child together, but were never married. They got into a custody dispute that brought them before a chancellor. Both petitioned the court for custody.

After three days of trial, the judge awarded them joint physical and legal custody. Brown appealed, complaining that it was error for the court to award joint custody.

In Brown v. Anklum, decided July 24, 2018, the COA affirmed. Judge Westbrooks wrote for the majority:

¶11. Brown argues that the parties have to make an express “application” asking for joint custody in order for the chancellor to order joint custody. However, Brown does not cite any authority in favor of his argument outside of Mississippi Code Annotated section 93-5-24(2)-(3) (Rev. 2013). This code section states in part:

(2) Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.

(3) In other cases, joint custody may be awarded, in the discretion of the court, upon application of one or both parents.

¶12. This Court has held that the application of joint custody may be made by one or both parents if the arrangement is in the best interest of the child. See Crider v. Crider, 904 So. 2d 142, 148 (¶16) (Miss. 2005). As Anslum pointed out in her brief, in irreconcilable differences cases the court may award joint custody when the parties request the court to determine custody. The Mississippi Supreme Court has held that “when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of ‘joint application’ in § 93-5-24(2).” Id. at 148 (¶15). Thus, a mere request to determine custody satisfies the “application” requirement. Id.

¶13. Accordingly, we find this issue is meritless.

Not a lot to ponder here, but it is a reminder that joint custody is almost always in the picture when you are litigating custody.

I wonder whether the application of law would be different if both parties pled or stipulated that joint custody would not be in the child’s best interest. My guess: that would not rule out an award of joint custody if the chancellor found that to be in the child’s best interest.

Judge Carlton, joined by Tindell, disagreed with the majority that the chancellor’s findings in favor of joint custody were supported by the evidence. You might find some of her rationale useful if you find yourself on that side of a similar equation.

What You Have to Show

July 25, 2018 § Leave a comment

Whenever chancellors gather the topic often arises that lawyers simply fail to put enough proof in the record to support findings by the court. No R41(b) motion is made, and the judge is left to sort through the incomplete record to come to a conclusion.

That is more or less what happened when Amy Voss sued Daven Doughty for modification of custody or visitation. The two had litigated custody only a month previously and the court had awarded Amy custody of their daughter Aqua, and awarded Daven visitation and enjoined smoking around the child.

After a trial, the chancellor denied Amy’s prayer to modify visitation. She appealed.

In Voss v. Doughty, decided April 10, 2018, the COA affirmed. Judge Wilson wrote for the unanimous court:

¶18. Voss also argues that the chancellor erred by denying her petition to modify and limit Doughty’s visitation. The chancellor denied Voss’s petition after finding that there had been no “change in circumstances” since the original visitation order. The chancellor’s ruling arguably misapplied the law concerning modification of visitation. “All that need be shown [to obtain a modification of visitation] is that there is a prior decree providing for reasonable visitation rights which isn’t working and that [modification] is in the best interests of the children.” Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). On this issue, “our familiar change in circumstances rule has no application.” Id. (citation omitted).

¶19. Nonetheless, we affirm on this issue because no evidence was presented that the visitation schedule was not working or was not in Aqua’s best interest. Voss petitioned the court to modify custody only thirty-six days after the original visitation order was entered. A “visitation plan should be given an opportunity to work.” Jones v. McQuage, 932 So. 2d 846, 849 (¶14) (Miss. Ct. App. 2006) (holding that there was no evidence that a visitation schedule was not working four months after its entry). Voss did not give the original visitation plan in this case an opportunity to work.

¶20. Moreover, Voss failed to prove that the original visitation plan was not working. She alleged that it was not working only because Aqua was being exposed to smoke while she was with Doughty. A representative from a drug testing company testified that a January 6, 2016 hair follicle test showed that Aqua had absorbed and metabolized nicotine from secondhand or thirdhand cigarette smoke. However, the witness testified that the test detected nicotine absorption dating back six months, so it could have reflected exposures prior to the chancery court’s prior custody order. The witness also testified that the test did not identify when or where the exposure occurred or “whether it was once, twice, or three  times”—only that it occurred sometime in the prior six months.

¶21. A pediatric pulmonologist, called by Voss as an expert witness, testified that “any nicotine level in your body is significant.” He opined that Aqua’s “chronic runny nose,” coughing, congestion, and other “upper respiratory” issues “could be attributable to . . . exposure to [cigarette] smoke.” However, he acknowledged that “a lot of things” can cause such issues, that none of Aqua’s treating physicians have attributed these issues to exposure to cigarette smoke, and that Aqua does not have asthma. The witness had never seen or examined Aqua, and his opinions were based solely on a review of her medical records.

¶22. Doughty and Ashley admitted that they smoke, but both denied that they smoke in their house or in Aqua’s presence. They admitted that Ashley’s mother, who pays most of their bills and has paid some child support for Doughty, does smoke in her bedroom with the door closed. They denied that they allowed anyone to smoke in Aqua’s presence.

¶23. Obviously, parents should not expose their children to cigarette smoke. However, the evidence indicated that Doughty tried to protect Aqua from exposure, and there was no clear link between exposure and Aqua’s congestion, runny noses, and coughing. Especially given the short time between entry of the prior custody order and Voss’s petition to modify visitation, there was insufficient evidence that the visitation schedule was not working. We therefore affirm the chancellor’s denial of Voss’s petition to modify visitation.

Some random thoughts:

  • The familiar material-change/adverse-effect rule does not apply in an action to modify visitation; all that needs to be shown is that the existing visitation order is not working.
  • You have got to allow time for the order to prove to be unworkable. Not only was this a quick turnaround, it did not allow time for the expert to rule out pre-injunction behavior.
  • Of course, no one is required to wait if there is a true emergency affecting the health or safety of the child. But there has to be a true peril, and it has to be imminent.
  • Here, the proof offered by Amy did not rise to that level.
  • Making sure that all of the elements get proven by competent proof is on you.

No UCCJEA Affidavit? Is That a Problem?

June 27, 2018 § Leave a comment

One would think by now that every pleading seeking child custody would include a UCCJEA affidavit as required by MCA 93-27-209(1). Yet, every now and then an affidavit-less petition or counterclaim wends its way to court and before we commence the hearing there is a motion to dismiss for failure to comply with the statute.

That’s apparently what happened in the custody case between Elle Adams and John Leon Rice. After the chancellor ruled that Mississippi properly had jurisdiction and the case proceeded to its conclusion in which the court awarded custody to John, Elle appealed.

In Adams v. Rice, decided by the COA on June 12, 2018, Elle raised a number of issues, among them the claimed failure to file the UCCJEA affidavit. Judge Barnes penned the opinion for the unanimous court:

¶28. Elle also argues that certain “required disclosures” pertaining to jurisdiction were not filed; therefore, the chancellor should have dismissed the action. Mississippi Code Annotated section 93-27-209(1) (Rev. 2013) provides that, in child-custody proceedings, each party in its first pleading or in an attached affidavit must provide certain information under oath as to the child’s present address and other matters. Elle cites White v. White, 26 So. 3d 342 (Miss. 2010), a child-custody modification case, as support. In White, even though the petitioner failed to provide this information, the Mississippi Supreme Court found it was not fatal to jurisdiction for two reasons: the chancery court’s jurisdiction is set by the Mississippi Constitution and cannot be diminished by statute; and under the plain language of section 93-27-209(2), the court is not required to stay the proceedings. [Fn 12] Id. at 347 (¶13).

[Fn 12] The statute states: “If the information required by subsection (1) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.” Miss. Code Ann. § 93-27-209(2) (emphasis added).

¶29. John provided this information in his initial petition. In his petition to modify custody, he could not provide the information because, as he explained, he was unaware of where Elle and Aaron were residing at that time. Elle, in response, claimed that she did not reveal her address and other information in her initial answer or in this action due to the Alabama protection orders. Since any failure to provide this information is not fatal to jurisdiction, and it is within the discretion of the chancellor to go forward with the proceeding, this argument is without merit.

That word may in the statute means that it is discretionary with the judge. Most judges are pretty level-headed and can be trusted to do the rational thing. There are a few, though, who might give you a funny (not funny ha-ha) bounce that might be somewhat unpleasant. My suggestion is that you always include a UCCJEA affidavit in a pleading where there is a custody issue, even when your client can not provide all the required information. Just aver that after diligent inquiry he or she has been unable to discover the information.

The Albright Tie

June 12, 2018 § Leave a comment

If the chancellor finds that neither party prevails over the other in Albright factors, may the chancellor find merely that and not make detailed findings? Like this:

The court has considered all of the evidence and testimony in light of the enumerated Albright factors and finds that these two parents are comparatively equal regarding those factors—or put another way, that neither party is favored over the other party in employing the Albright balancing test—and, therefore, the court will and does hereby order joint legal and physical custody to be exercised by both of these parents with regard to the two children that are the subjects of this lawsuit.

There actually is authority to the effect that the chancellor may do exactly that, as we will see, but the COA reversed and remanded a recent case where the chancellor used the language above and did not make detailed findings.

In the case of Robles v. Gonzales, handed down May 15, 2018, Judge Carlton wrote for the court:

¶24. In Adoption of Wright v. Wright, 160 So. 3d 737, 742-43 (¶16) (Miss. Ct. App. 2015), this Court followed the supreme court’s prior holding in Powell, 792 So. 2d at 249 (¶33), [Fn 4] in determining that a chancellor erred by failing to make specific findings regarding each applicable Albright factor. This Court found that “the chancellor’s opinion arguably discussed several of the Albright factors” but explained that “it did so unintentionally and did not address all of the factors applicable in this case.” Id. at 742 (¶16). This Court then reversed the chancellor’s judgment and remanded the case with instructions for “the chancellor to support his decision with an on-the-record Albright analysis.” Id. at 743 (¶16).

[Fn 4] In Powell, 792 So. 2d at 249 (¶33), the supreme court reversed the chancellor’s judgment after finding that the chancellor failed to make specific findings for each Albright factor when making his custody determination.

¶25. However, in Sobieske v. Preslar, 755 So. 2d 410, 413 (¶12) (Miss. 2000), the supreme court affirmed the chancellor’s judgment despite its determination that the chancellor failed to make any express findings as to the Albright factors. In Sobieske, the chancellor provided only the following language in his custody determination:

Considering the factors set forth in Albright, it appears that both parents have the desire and capacity to have the primary custody of [the minor child], however, [the minor child] has close ties to the home she has lived in since birth as well as to her friends and family in Alcorn County, Mississippi. [The minor child] has close ties to Mrs. Sobieske’s twin sister, Mary Allred, and to Ms. Allred’s daughter, Meagan, who is approximately the same age as [the minor child]. [The minor child] also has, in Alcorn County, other family and friends who she is close to. Mrs. Sobieske and her new husband are living in Atlanta, Georgia, and since [the minor child] does not have any other family in that area, there are uncertainties for her there.

Id. at 411-12 (¶4). In Sobieske, the chancellor’s ruling “appears to recognize that both parents are fit under Albright[.]” Id. at 412 (¶4). The supreme court held “it can be inferred from his citation to Albright that [the chancellor] felt that both parents were fit under Albright” but expressed that “it certainly would have been preferable for the [c]hancellor to have expressly considered each Albright factor[.]” Id. at 412, 413 (¶¶4, 12). However, the Sobieski Court explained that “it is perhaps understandable that [the chancellor] did not do so in the present case, given that the testimony established that both [parents] were fit and loving[.]” Id. at 412 (¶4). In affirming the chancellor’s judgment, the Sobieske Court recognized the deference that an appellate court “must show to the [c]hancellor in the exercise of his discretion.” Id. at 413 (¶12).

¶26. In the more recent case of Huseth v. Huseth, 135 So. 3d 846, 858 (¶36) (Miss. 2014), the supreme court again affirmed a chancellor’s judgment awarding physical custody of the minor child to the mother despite finding that the chancellor failed to conduct a detailed, on-the-record analysis of the Albright factors. The supreme court recognized that the chancellor “state[d] that she had weighed the [Albright] factors, . . . [plus] significant evidence was adduced by each party [that] was relevant to the Albright factors and the determination of custody.” Id. Finding its prior precedent in Sobieske controlling, the supreme court affirmed the chancellor’s custody determination and held as follows:

In light of the amount of evidence adduced at trial that was relevant to the Albright factors, the fact that each parent was shown to be a good parent, and the chancellor’s indication that she had considered the factors by noting the stability achieved by the child’s staying with his mother, we find that Sobieske is controlling, and consequently, we affirm the chancellor’s custody determination.

Id. at 859 (¶39). [Fn 5]

[Fn 5] “The chancellor is only required to address those Albright factors that are applicable to the case before him.” Rayner v. Sims, 228 So. 3d 353, 357 (¶12) (Miss. Ct. App. 2017).

¶27. In the case before us, although the chancellor failed to provide an express, on-the-record determination regarding each Albright factor in his final judgment, the chancellor did state that in making his child-custody determination, he “consider[ed] and balanc[ed] the factors set forth by the Mississippi Supreme Court in Albright[.]” The trial transcript also reflects that the chancellor explained that he “considered all of the evidence and testimony in light of the enumerated Albright factors.” However, the chancellor’s ruling reflects only his determination that Robles and Gonzalez “are comparatively equal regarding those factors—or put another way, that neither party is favored over the other party in employing the Albright balancing test.” Unlike Sobieske, the chancellor made no additional finding that both parties were loving and fit, and the record does not reflect on its face that both parents are loving and fit so as to support an award of joint custody. Therefore, we must remand this case to the chancellor to provide findings in accordance with Albright to support his custody determination.

¶28. Additionally, when awarding joint custody, the supreme court has held that “unless the parents are capable of sharing joint custody cooperatively, it is incumbent upon a chancellor not to award joint custody.” Crider v. Crider, 904 So. 2d 142, 147 (¶13) (Miss. 2005). The supreme court instructed that “[t]his is for the chancellor to determine as he or she is in the best position to evaluate the credibility, sincerity, capabilities[,] and intentions of the parties.” Id. The chancellor failed to make on-the-record findings regarding his application of the various Albright factors and as to whether the parties were capable of cooperatively sharing joint custody. We cannot properly review the chancellor’s child-custody determination without findings in support of his determination. Based upon the foregoing, we reverse the chancellor’s judgment and remand the case to the chancellor for further proceedings consistent with this opinion.

So, sometimes “Sobieske is controlling,” à la Huseth, and sometime not, as in this case. The fault line here seems to be in the award of joint custody. The COA felt that it needed more findings to ensure that the award of joint custody was properly made.

As a practitioner, I would encourage you to assume that there must be findings as to each applicable Albright factor in every case. If the chancellor does not do it in a bench ruling or written opinion or even in a final judgment, file a R59 motion asking the court to make such findings. You can even offer your own proposed findings and conclusions of law. It’s the only sure-fire way to try to protect your client in the event of an appeal.

Relocation and Joint Custody

June 11, 2018 § Leave a comment

Julia Bennett and her husband, Andre, were divorced in 2011 on the ground of irreconcilable differences. Their PSA provided that the parties would share joint physical and legal custody, with Julia to have the children with her most of the time.

When Julia decided to relocate from Rankin County to St. Louis, Andre filed to modify, seeking sole custody, and to keep the children in Rankin. Julia counterclaimed for sole custody, and to modify the visitation based on her new residence in Missouri.

At hearing, Andre testified that he was actively involved in the lives of his children, and that he had recently purchased a home suitable for them to stay with him. Julia testified that her father and fiancé lived in St. Louis, and that she had a job awaiting her there. She said, too, that she had been in the process of enrolling the children in school in Missouri until the chancellor had entered an emergency order that the children be enrolled in Rankin County schools. One of the children, Madeline, age 14, testified that her preference was to stay with her mother, with whom she was close. She conceded that she was close to her father also, and that she would abide by the court’s order either way.

The family master, serving as a guardian ad litem (GAL) found that no material change had occurred, because Julia had not moved; however, a move would create a material change adverse to the children, and, if so, Andre should have custody. The GAL’s report incorporated an Albright analysis, which included Madeline’s preference. The chancellor agreed with and adopted the GAL’s recommendations and entered a judgment providing that if Julia relocated to Missouri Andre would have custody, Julia would have liberal visitation, and she would pay child support.

Julia appealed, challenging only the determination not to honor Madeline’s preference. In Bennett v. Bennett, decided April 10, 2018, the COA affirmed unanimously. Judge Fair wrote for the court:

¶12. Julia only challenges one Albright factor – the preference of the minor child. Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2013) provides that a child’s preference may be taken into account in determining child custody:

[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.

“[T]he chancellor is not bound by the election of a minor child.” Floyd v. Floyd, 949 So. 2d 26, 30 (¶12) (Miss. 2007). However, if a chancellor declines to follow a child’s election, he must place the reasons in the record. Id.

¶13. In his Albright analysis, the family master noted the following regarding the child’s preference:

The preference of the child at the age sufficient to express a preference: [Madeline] is fourteen (14). She is over the age of twelve (12). She is able to make a preference. She did make that preference for mother. This factor would favor mother in this regard. [] The stability of the home environment, I believe, favors [Andre] Bennett primarily because he’s been here with the children and with mom up until recently. That is a stable environment, one in which the children are familiar with. You know, [Julia] Bennett, the testimony was you’re going to live with your dad. You don’t really have a place to live. You are not married yet. [There are] a lot of unknowns, a lot of question marks. I am not faulting you for it. I’m just saying that’s just the way it is. All things considered, the best evidence before the [c]ourt on this half is that the material change of circumstances was adverse to the children favors a modification of custody to – to dad.

¶14. We find that the family master appropriately explained his reasons for awarding custody to Andre instead of Julia in the event that Julia relocates, even though Madeline expressed a preference to reside with her mother. It was within the chancellor’s discretion to adopt the family master’s recommendation. Accordingly, we affirm.

Some ruminations:

  • Anticipatory modifications have not been favored. See, McMurry v. Sadler, 846 So. 2d 244 (Miss. App. 2004), in which the court affirmed the chancellor’s decision to dismiss pleadings that alleged that a material change and adverse effect would result if an event happened. In most cases, this approach would be wise because it would be speculative to find material change and adverse effect would occur until they do.
  • Here, it was practical for the chancellor to address the impending move and its effect on joint custody.
  • Relocation almost always plays havoc with joint custody, leaving everyone — the judge included — dissatisfied with the result. To compound matters, the party who does’t wind up with what he or she wanted always feels cheated because joint custody is what they negotiated for, or what was ordered, in the first place.
  • This case highlights that the court is never required to follow a child’s preference. If the preference is not followed, however, the court must state the reasons why. Here, by adopting the GAL’s report and findings on preference, the chancellor made a record as to why he did not follow the child’s preference.

The Better Home Argument for Custody

June 5, 2018 § Leave a comment

In the recent case of In re Guardianship of C.B.F., decided May 8, 2018, the COA confronted the argument that the natural-parent presumption had been rebutted because the grandfather had proven that he could provide a better home for the child than could the mother. Judge Griffis addressed the issue for a unanimous court:

¶35. Although not specifically asserted, it appears Paul claims the chancellor erroneously concluded that he failed to rebut the natural-parent presumption by clear and convincing evidence. We disagree.

¶36. The natural-parent presumption “may be rebutted by clear and convincing evidence that (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.” Wilson v. Davis, 181 So. 3d 991, 995 (¶7) (Miss. 2016). Additionally, the presumption “may be rebutted by clear and convincing evidence that actual or probable, serious physical or psychological harm or detriment will occur to the child if custody is placed with the natural parent, such that granting custody to the third party is substantially necessary to prevent such probable harm.” Id. at 995-96 (¶8). “Such a finding must prevent probable harm to the child, and not simply find that the third party can provide the child with different or arguably ‘better’ things.” Id. at 997 (¶8). “If the natural parent presumption is rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child’s best interests.” Id. at 995 (¶7).

¶37. Paul does not challenge the chancellor’s findings regarding each factor. Instead, Paul claims that “[r]igid adherence [to proving one of the four factors] placed [Carter] in a circumstance which is clearly not in his best interests.” See id. at (¶8) (noting “that the rigid adherence to proving one of the four precise factors to rebut the natural parent presumption may, in very limited and exceptional circumstances, place a child in a circumstance that is clearly not in his or her best interests”). However, as noted by the GAL, simply because Paul may offer a more suitable home for Carter is not enough to rebut the natural-parent presumption. Indeed, the chancellor found there was no evidence that “actual or probable, serious physical or psychological harm or detriment w[ould] occur if the custody of Carter [wa]s placed with Hollee.” [Emphasis mine]

Not a whole lot to chew on there, but I wanted to highlight the principle that even though most grandparents can provide a nicer home, more material pleasures, and a more comfortable life, that is not enough to overcome the natural parent presumption. There must be a showing by clear and convincing evidence of one or more of the four Wilson v. Davis factors, or that serious harm to the child will result from placement with the natural parent.

We are seeing more and more situations like the facts in this case in which the natural parents live with their parents, or leave a child with their parents intermittently, or abandon the child entirely. In most of these cases, the grandparents become de facto parents to the child, and they become quite attached to the youngster. It can become a real tug-of-war when the natural parent shows up and demands to have the child back.


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