Child Custody | The Better Chancery Practice Blog

Breast-Feeding and Visitation

August 22, 2016 § 1 Comment

Among the many reasons parties request restricted visitation is to accommodate breast-feeding schedules.

That was the issue in the case of May v. Arthurs, decided by the CAO on June 28, 2016.

Derek May sued Kira Arthurs to establish paternity of their baby, Mason, born January 29, 2014. One of the issues for the court to decide was Derek’s visitation. Kira was breast-feeding the baby at the time of the trial on October 14, 2014.

Following the hearing, the chancellor concluded that the baby was “still using breast milk and [Kira had] the right to continue breast-feeding.” The COA opinion, by Judge Lee, sets out the visitation ordered by the court:

¶5 … At the time of trial, Derek was exercising weekend visitation every other weekend from Saturday at 10 a.m. to Sunday at 4 p.m. The chancery court ordered this to continue until Mason reached eighteen months of age or was totally weaned from breast milk, whichever occurred first. Then Derek would have visitation every other weekend from Friday at 6 p.m. to Sunday at 6 p.m.

¶6. Regarding summer visitation, the chancery court ordered Derek would have Mason beginning June 1, 2015, for a three-week period. Derek would also have Mason beginning July 1, 2015, for a three-week period.

Both the weekend and summer visitation were restricted until Mason reached the age of 18 months or was completely weaned, whichever occurred first.

The COA vacated the order, reversed, and remanded:

¶13. “Child visitation, and its limitations, are awarded at the chancellor’s broad discretion.”Cassell v. Cassell, 970 So. 2d 267, 271 (¶17) (Miss. Ct. App. 2007) (citing Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994)). “The chancellor must keep the best interest of the child as a paramount concern, while being attentive to the non-custodial parent’s rights.” Id. (citing Faris v. Jernigan, 939 So. 2d 835, 839-40 (¶8) (Miss. Ct. App. 2006)). “The court should be concerned with the need for the non-custodial parent and child to maintain a healthy and loving relationship.” Id. at 271-72 (¶17).

¶14. “When restrictions are placed on visitation, there must be evidence that the particular restriction is necessary to avoid harm to the child.” Id. (citing Cox v. Moulds, 490 So.2d 866, 867-68 (Miss. 1986)). “A lack of this evidence will render the chancellor’s restrictions on the non-custodial parent’s visitation manifest error and an abuse of discretion.” Id. (citing Fulk v. Fulk, 827 So. 2d 736, 742 (¶21) (Miss. Ct. App. 2002)).

¶15. The record before this Court fails to demonstrate that the restriction on summer visitation was reasonable or necessary to prevent harm to Mason. Rather, Kira offered every other-week visitation in the summer until Mason was older. Kira testified that while Mason was an infant, she “would like it to be a little more consistent.” It was the chancellor whose “only concern [was] the breast-feeding.” Therefore, we vacate the chancellor’s summer visitation award and remand the case for the chancellor to revisit the issue of summer visitation consistent with this opinion. However, we affirm the chancellor’s weekend visitation award.

One fact undercut Kira’s position. You can find it at footnote 4, which states: “Kira provided breast milk whenever Derek had visitation, and the breast milk was being supplemented with solid foods as well as apple juice and water.” Translation: Derek was able to meet the baby’s need for breast milk when he had visitation; ergo, it was unnecessary to restrict his visitation.

I don’t see a lot of precedential value in this case vis a vis breast-feeding in particular. Breast-feeding is treated the same as any of the many other reasons that people advance to support their claims that visitation should somehow be restricted. Every one of these cases is fact-intensive and calls for more than mere allegations or assertions. There must be proof that the restriction is necessary to avoid harm to the child. Meeting that standard should not be a big challenge to most lawyers.

The Price of Admission

August 17, 2016 § 2 Comments

Chancery court can be a strange land for strangers who spend most of their time in law courts. There, things tend to be pretty black and white; here, well, not so much. One of the things that circuit lawyers find particularly frustrating is that chancellors sometimes seem to look past the black letter of the rules in some of their rulings.

It can cut both ways, though.

In the recent case of Randallson v. Green, a COA case decided June 21, 2016, Arthur Randallson and his wife, April, argued that the chancellor erred in relying on their deemed answers to requests for admission in determining custody.

The case came before the chancery court on a complaint filed by Randall and Laura Green seeking legal and physical custody of Aeva, the daughter of Arthur and April. The Greens filed requests for discovery which were not answered by the Randallsons until 51 days after they were served on them. The chancellor awarded custody to the Greens, and the Randallsons appealed.

Their first assignment of error was that the chancellor erred in relying on their deemed MRCP 36 admissions (RFA’s) to determine custody. Judge Lee wrote for a unanimous court:

¶19. This Court has strictly enforced the application of Mississippi Rule of Civil Procedure 36 according to its terms. Boyd v. Boyd, 83 So. 3d 409, 416 (¶19) (Miss. Ct. App. 2011). “The rule states that a party has thirty days in which to submit a response to a request for admission, or within forty-five days after service of the summons upon a defendant.” Id. (citing M.R.C.P. 36(a)). “Matters will be deemed admitted after this time period, unless the court allows for either a shorter or longer period of time in which to answer.” Id.

However, the trial court, on motion, has the discretion to “permit withdrawal or amendment [of a matter admitted] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”

Id. (quoting M.R.C.P. 36(b)).

¶20. The record is clear that Arthur and April filed untimely responses to Randall and Laura’s requests for admissions. See id. at (¶21). They failed to request a withdrawal or amendment of the admissions prior to trial. See id. Thus, the operation of the rules deems the matters admitted. Id. (citing M.R.C.P. 36(a)). “Matters admitted by default under Rule 36(a) are established unless and until the trial court allows amendment or withdrawal by motion under Rule 36(b).” Id. (quoting DeBlanc v. Stancil, 814 So. 2d 796, 799 (¶17) (Miss. 2002)).

¶21. However, in Gilcrease v. Gilcrease, 918 So. 2d 854 (Miss. Ct. App. 2005), we held that “child custody is a judicial determination, and is never to be regarded as a merely evidentiary matter.” Boyd, 83 So. 3d at 417 (¶23). Thus, basing a determination of child custody solely on a Rule 36 admission is improper. Id.

¶22. In her bench ruling, the chancellor considered Arthur and April’s admissions. But then the chancellor stated:

[T]his [c]ourt is a court of equity and the attorneys for the plaintiffs know that. They did not . . . rest their case [after the admissions were deemed admitted and] ask me to find by clear and convincing evidence that the parents [were] unfit . . . . They went on to present evidence to this [c]ourt, which gave the [c]ourt some . . . very real concerns.

After discussing the evidence, the chancellor stated that she “considered the totality of the [r]equest for [a]dmissions, the guardian [a]d litem report, [and] the testimony . . . from all of the witnesses” and found “that the [natural-]parent presumption [had] been overcome.”

¶23. Upon a thorough review of the record, we do not find that the chancellor abused her discretion. See id. at 418 (¶28). It is clear that the admissions were not the sole basis for the custody decision. See id. The chancellor heard all of the testimony at trial and used the GAL’s report as part of her consideration, in addition to the admissions by Arthur and April. See id. Therefore, this issue is without merit.

You can take away at some points:

Failure to answer RFA’s can have as significant effect in a chancery court as in a law court.
The chancellor in a child custody case may not rely solely on admissions to make its custody decision.
The only way a chancellor (or any other judge operating under the MRCP) may relieve your client of the effect of admissions, whether deemed or expressly made, is if you timely file a motion and put on proof that (a) the merits of the case will be served by granting the motion, and (b) there is not prejudice to the other party. Fail to do that, and your client is stuck. Wait until the day of trial, and you probably will fail on (b).
Don’t forget that you can move to “withdraw” or amend even when your client wholly failed to respond at all. You just have to go through the motion routine above.
But, hey, instead of putting all your chips on a rescue procedure that relies on the possibly sketchy discretion of the judge, why not focus instead on your office procedures? Have a protocol in place that the minute a RFA appears in your email inbox, or is served with process, or is hand-delivered, or arrives in the mail, your staff knows to give it top priority and get it to your immediate attention. Calendar the due date. Make an immediate appointment with the client to come up with responses ASAP. Get the answers filed within a reasonable time.
Resist the temptation to answer every question with something like, “Defendant is without knowledge or information sufficient to form a belief …” unless that really and truly is the case. On a bad day the judge could find that sort of response sanctionable.

When is a GAL Required? (Part II)

August 1, 2016 § Leave a comment

Last November, we discussed the COA’s decision in Carter v. Carter, a child-custody modification case in which the chancellor had removed custody from Jennifer Carter because of her squalid living conditions and inattention to the child’s dental care.

Jennifer appealed, claiming that it was error for the chancellor to adjudicate the case without appointing a GAL. The COA affirmed, pointing out that neither Jennifer nor her ex had asked the court to appoint one.

Jennifer filed for cert, which the MSSC granted. Oral argument has been completed, and we are awaiting the court’s decision. Jane Tucker posted on the case with links to the cert petition, supplemental briefs, and video of the oral argument. You can access her post at this link.

Here’s hoping that the high court takes this opportunity to clarify just what allegations or proof are necessary to trigger appointment of a GAl, and how grievous the situation needs to be. As for allegations, Jennifer argued in her cert petition that the COA’s decision imposes too harsh a standard on litigants; in other words, she is arguing that once the proof is in the record the chancellor has a duty to appoint. The question remains, though, how serious the child’s circumstances must be to require a GAL. In his opinion for the COA, Judge Fair wrote that the supreme court has typically drawn the line at fact situations that would trigger youth court jurisdiction, and he found that the facts in Carter did not rise to that level. maybe the court can add some clarity.

Questioning the Child Witness

July 14, 2016 § 1 Comment

Children are often called as witnesses in chancery court. It should go without saying that some children, due to various factors, have to be handled gingerly in how they are questioned. Age, emotional maturity, emotional content of the testimony, education and cognitive development, and the courtroom environment all affect a child’s effectiveness as a witness. Other factors may as well.

The Children’s Advocacy Centers of Mississippi have published a booklet entitled A Guidebook for Accommodating Children in Court that includes some helpful information on the subject. Here are some key points:

Use simple grammar and concrete words; the child can better understand the questions.
Children have a right to be asked questions they understand and should be informed that they should let the court know if they do not understand. Even so, some children may be reluctant to admit they do not understand if they think it is a question that they should understand, and some children may think they understand the question when they really do not. Every now and then a check question like “What do you think I just asked you?” may help make sure there is no misunderstanding.
Children use the vocabulary they have. For instance, a child may describe having been “stabbed” in an episode when there was no knife used or even present; what the child is describing is what the experience felt like, because there are no other words in his or her vocabulary for it.
Young children may not organize their thoughts logically, and often have limited understanding of space and time.
To promote more accurate answers, use common, everyday words and phrases, and avoid legal words and jargon such as attorney, deny, subsequent to, take the witness stand, court (in reference to the judge), allegation, defendant, statement, oath, testify.
Use names and places instead of pronouns and adverbs. Instead of “Was he there then?” ask “Was John at the apartment when you arrived?” Instead of “Were they all there?” ask “Were your mom, aunt Sue, and your brother Bill at the park with you?”
Negative questions are most often misinterpreted. Avoid no, not, and never in your questions. “Did you go into the house?” is better than “Did you not go into the house?” And avoid double negatives.
Start questions off with the main idea. “Did you hear the bell go off when you were eating with your family?” is more effective than “When you were eating with your family, did you hear the bell go off?”
Avoid multi-part and multi-idea questions.
Pausing is productive. Pausing between phrases, sentences, and after questions allows children to process their thoughts, which aids comprehension for more accurate communication.
Cultural and ethnic differences can lead to differences in demeanor on the witness stand. Native Americans, for instance, may have long pauses in communication that can be incorrectly interpreted negatively.

If you can get a copy of this booklet, I think you will find it helpful. CAC’s address is P. O. Box 5348, Jackson, MS, 39296. Phone 601-940-6183. Their website is at this link.

Weighing Albright Factors

June 8, 2016 § Leave a comment

The MSSC decided in Albright v. Albright, 437 So.2d 1003 (Miss. 1983), that child-custody decisions must rest on consideration of specified factors.

In the aftermath of that decision, some lawyers and judges conceived the notion that Albright was to be applied in scorecard-like fashion. If one party prevailed on more factors, that party was the winner.

Fortunately, that view did not prevail. The appellate courts clarified that the judge’s duty is to address and weigh each factor, and, based on that analysis, to make a determination of what is in the best interest of the child.

From time to time a case comes floating down from the appellate stratosphere that enlightens us in how the trial courts are to apply Albright. The most recent example is Edwards v. Edwards, handed down by the COA on May 3, 2016. In that case, Johnny Edwards questioned the chancellor’s decision to award Nancy Edwards custody of the parties’ three sons. Since the COA’s opinion is enlightening on the topic, I thought I would post the discussion here. Judge Fair wrote for the court:

¶5. Johnny presents what he styles two issues on appeal, but both essentially argue the same point: Johnny contends that the chancellor erred in considering circumstances outside Johnny’s control on the question of continuity of care.

¶6. In Albright, our supreme court held that the best interest of the child must control in all custody decisions, and this principle has been adopted by the Legislature in Mississippi Code Annotated section 93-5-24 (Rev. 2013). In determining the best interest of the child in custody disputes, it is the court’s duty to consider that the relationship of parent and child is for the benefit of the child, not the parent. See Reno v. Reno, 253 Miss. 465, 475, 176 So.2d 58, 62 (1965) (citing J.W. Bunkley Jr. & W.E. Morse, Bunkley and Morse’s Amis on Divorce and Separation in Mississippi § 8.01 (2d ed. 1957)).

¶7. To determine where the child’s best interest lies, chancellors must consider the following factors when evaluating the fitness of each parent: (1) age, health, and sex of the children; (2) continuity of care; (3) parenting skills and the willingness and capacity to provide primary child care; (4) employment responsibilities of the parents; (5) physical and mental health and age of the parents; (6) moral fitness of the parents; (7) emotional ties of the parents and children; (8) home, school, and community records of the children; (9) preference of children twelve years of age or older; (10) stability of the home environment and employment of each parent; and (11) other relevant factors in the parent-child relationship. Albright, 437 So. 2d at 1005.

¶8. The chancellor is required to address each of the Albright factors that is applicable to the case before him. See Powell v. Ayars, 792 So. 2d 240, 244 (¶10) (Miss. 2001). However, he need not decide that every factor favors one parent over the other. See Weeks v. Weeks, 989 So. 2d 408, 411 (¶12) (Miss. Ct. App. 2008). Nor is Albright a mathematical formula where custody must be awarded to the parent who “wins” the most factors. Lee v. Lee, 798 So. 2d 1284, 1288 (¶15) (Miss. 2001). Instead, the Albright factors exist to ensure the chancellor considers all the relevant facts relating to the child’s best interest. “All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003).

¶9. In a written opinion, the chancellor discussed each of the Albright factors. He found that the sex of the children – all three were male – favored Johnny. Continuity of care “slightly” favored Nancy because, although the parents had shared responsibilities prior to the separation, she had physical custody of the children for more than a year prior to the judgment. Parenting skills and employment responsibilities also favored Nancy, while the stability of the home favored Johnny, as Nancy had moved several times after the separation. The chancellor found that, on the whole, it was in the children’s best interest to remain with Nancy, though the parents would share joint legal custody.

¶10. Johnny argues on appeal that the chancellor erred in analyzing the continuity of care factor – specifically, he contends that Nancy had an unfair advantage based on a temporary order from an Alabama court. Johnny contends that the Alabama court had no jurisdiction to enter the order. He also faults Nancy for denying him visitation during the summer of 2013.

¶11. We find no merit to these contentions. It is true that the original articulation of the Albright factors directed the chancery court to consider the continuity of care prior to separation. See Albright, 437 So. 2d at 1005. But the supreme court has since held that care after separation must be considered as well. Copeland v. Copeland, 904 So. 2d 1066, 1076 (¶39) (Miss. 2004) (citing Jerome v. Stroud, 689 So. 2d 755, 757 (Miss. 1997)).

¶12. The chancellor recited the relevant facts and rendered a rational decision on this factor. He found:

Both parties cared for the children until their separation in 2010. Nancy testified that she had helped the boys with their homework, transported them to school, and cleaned the house. Johnny testified that he had cooked the meals, washed the clothes, and cleaned the home. Each party argued that he or she had been the primary caregiver. Since their separation, Jalen and Jorden lived with their father for two years and in 2012 began living with their mother. Jonivan has lived with Nancy since 2010. It seems that each party has been the primary caregiver for the children at different times. Most recently, Nancy has had the continuity of care. This factor slightly favors Nancy.

¶13. Johnny’s argument regarding the summer of 2013 is simply undeveloped in the record; he seems to base it entirely on assertions made in pleadings rather than evidence submitted at trial. And even if the custody situation prior to trial was the result of an unfair ruling from another court [Fn 2],the Mississippi chancery court entered an order giving Nancy temporary custody more than a year prior to trial. Also, the fact remains that Nancy had de facto care of the children for a significant period of time prior to trial, regardless of whether

[Fn2] It is not clear exactly what occurred in the Alabama court, other than that it eventually ceded jurisdiction to Mississippi.

the way this came about was fair to Johnny or not. The Albright analysis is, after all, intended to guide the determination of what is in the best interest of the children, rather than what is fair to the parents. See Reno, 253 Miss. at 475, 176 So. 2d at 62. We find that the chancellor both accurately and fairly weighed the evidence on this factor.

¶14. Moreover, assuming that continuity of care was neutral or even slightly favored Johnny, it would not necessarily follow that reversible error would result. The chancellor assigned great weight to the facts that Nancy had the better parenting skills and that the respective employment situations favored Nancy, as a school teacher, over Johnny, a truck driver. The chancellor decides how to weigh the Albright factors. See Johnson, 859 So. 2d at 1013-14 (¶36). Parenting skills and employment responsibilities were, in this case, very important factors, and the chancellor’s reliance on them in awarding custody to Nancy was not an abuse of discretion.

I put the most important language in bold for your convenience.

The Right to do Harm to Your Own Interests

May 3, 2016 § Leave a comment

Have you ever stopped to ponder the flip side of the right to remain silent in the face of police interrogation? The flip side is that you have the right to blab uninterruptedly until every smidgeon of defense that you could possibly later assert is totally obliterated.

Likewise, the flip side of the right to appointed counsel is that one may represent one’s self. In criminal cases that is recognized to be such a self-destructive tactic that judges often appoint a lawyer to “consult” with the accused who chooses to act as his own lawyer.

In chancery, there are few matters in which appointed counsel is appropriate or required. But in every case the parties have the right to forego the benefit of counsel and represent themselves, seldom with any positive results.

The most recent example in our appellate courts is Cooper v. Higgins, decided by the COA on March 22, 2016. In that case, Jeremy Cooper and Laquitta Higgins had been involved in custody battles in Michigan and Florida before they wound up in a Mississippi chancery court. Their son, Langston, who was 12 years old at the time of the Mississippi custody modification hearing, had a “post-developmental disorder” on the autism spectrum, but not “full-blown autism,” and he continued to develop toward being autonomous.

Higgins was awarded sole custody in Michigan in 2004. Cooper later filed for custody in Florida, but that suit was dismissed for lack of jurisdiction. In 2008, Cooper filed aa petition to modify in Mississippi, and the chancellor denied relief on the merits. In 2013, he again filed to modify, which was denied. Cooper appealed and the MSSC remanded because the original court reporter had resigned and the transcript could not be produced.

On remand Cooper filed a pro se petition to modify, alleging that Higgins assaulted him in 2005, that she interfered with visitation in 2005, and she misrepresented her place of residence (presumably in a UCCR 8.06 filing). Here is how the COA describes what transpired at trial:

¶8. Cooper subpoenaed Langston to testify, but after talking to the child in camera, the chancellor determined that he lacked the capacity to participate effectively in the hearing. In addition, the chancellor noted that Langston’s testimony was not necessary to determine whether there had been any material change in circumstances. Cooper did not voice any objection to this ruling below, nor does he challenge it on appeal.

¶9. Before Cooper called his first witness, the chancellor emphasized that it was his burden to prove a material change in circumstances. The chancellor also discussed that a custody hearing is a complicated matter and asked Cooper whether he was certain that he wanted to proceed pro se. Cooper confirmed that he desired to do so.

¶10. Cooper called Higgins as his first witness. During a brief examination by Cooper, Higgins testified that she had lived at her present residence for approximately five years, that she was raised by both her biological father and her stepfather, and that she collects books. Cooper then announced that he had no further questions.

¶11. Cooper then took the stand himself. He accused Higgins of acts of violence and of interfering with his visitation in 2005 and 2006, and he attacked her character generally. Cooper also testified that Langston would be better off living with him because he believed that he had a condition similar to Langston when he was a child. Cooper opined that he understood Langston and how his brain worked better than Higgins.

¶12. After Cooper testified, he rested. Higgins then moved to dismiss the petition on the ground that Cooper failed to prove a material change in circumstances. The court granted the motion and dismissed the petition on that ground.

Pretty predictable result, I would say, based on that recitation of the proof that was presented. Judge Wilson, for the unanimous COA, found “not the slightest indication of a material and adverse change in circumstances,” and affirmed on that point.

Cooper’s other substantive argument was that the chancellor was biased against him, which is patently absurd in light of ¶9, above, where the chancellor took pains to explain in advance how modification of custody can be a complicated matter, and offered him the opportunity to proceed other than self-represented. If the chancellor had been truly biased she would have sat there silent behind a crocodile smile while he self-destructed.

As I have said here many times before, I have never seen any self-represented party walk out of a courtroom in better shape than when they walked in.

Oh, and Cooper’s appeal was pro se, also.

Embarrassment is not an Adverse Effect

April 12, 2016 § 3 Comments

Brandi Spears and her then-husband, Ken Moreland, agreed in a 2012 PSA that Brandi would have physical custody of their child, and they would share joint legal custody. (Note that Brandi is the spelling in the style of the case, but Brandy is the spelling used throughout the opinion).

In 2013, Brandi sued Ken for modification, claiming that there had been a material change in circumstances in that Ken had failed to pay some of the child’s expenses as he agreed, and seeking sole legal custody, a change in the visitation schedule, an order for Ken to have a mental evaluation, and attorney’s fees.

The chancellor did modify the legal custody to award Brandi sole legal custody and other relief. From that ruling, and from the other relief, Ken appealed.

In its decision in Moreland v. Spears, handed down March 1, 2016, the COA, by Judge Griffis, recited the familiar rule that modification of custody requires a showing, by a preponderance of evidence, that there has been (1) a material, substantial change in circumstances since entry of the original custody order that has (2) had an adverse effect on the child, and (3) it is in the child’s best interest to change custody.

After analyzing the evidence of material change, the opinion turned to the proof of adverse effect:

¶12. Despite whether these instances constituted a material change in circumstances, it was incumbent upon Brandy to show these changes had an adverse effect on Lauren. Brandy’s only contention of an adverse effect was that some of Ken’s actions embarrassed Lauren and, as Lauren grew older, Brandy speculated that the extent of embarrassment would increase. Brandy, however, fails to show how embarrassment equates to an adverse effect. Lauren continued to performed well in school and received satisfactory marks in her progress reports. As such, we find that Brandy failed to prove any adverse effects on Lauren.

¶13. This Court has held far more egregious conduct did not warrant a change in custody when no adverse effect occurred. In Sudduth v. Mowdy, 991 So. 2d 1241, 1245 (¶14) (Miss. Ct. App. 2008), this Court found the minor child’s dental problems, the mother’s inappropriate relationships, and the allegations that the mother gave the child anti-psychotic drugs did not warrant a modification of custody from the mother to the father when the father failed to prove any adverse effects on the child.

¶14. Likewise, in Wikel v. Miller, 53 So. 3d 29, 35-36 (¶¶15, 17) (Miss. Ct. App. 2010), this Court affirmed the chancellor’s findings that the mother’s interference with the father’s visitation, the minor children’s behavioral problems requiring counseling, and the mother’s prior relationships did not warrant a modification in custody when the minor children excelled in school and showed no adverse effects. For these reasons, Brandy failed to demonstrate that Lauren suffered from adverse effects warranting a modification.

I might add that, in my experience, most teenagers spend the greater part of their teen years being embarrassed and mortified about one thing or another, so it’s a wise rule not to let something as serious as modification turn on that kind of spasm of emotion.

A Return to Basics in Third-Party Custody

January 12, 2016 § Leave a comment

If you’ve done any amount of third-party child custody work in the past several years, you can’t be blamed for scratching your head in bewilderment over how to advise your client about the limits and parameters of the natural-parent presumption.

The presumption is that the best interest of the child is served by being in the custody of a natural parent, rather than a third party. The presumption may be overcome 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. Davis v. Vaughn, 126 So.3d 33, 37 (Miss. 2013).

The problem is defining exactly what kind of conduct satisfies the Davis v. Vaughn test. A recent MSSC case defines that for us.

Concetter Davis and James Wilson had a child, Sha, born April 20, 2003. James filed a paternity and custody action in which he was determined to be the father, and Concetter was awarded custody. Concetter died in 2011, and her family refused to turn Sha over to James. He filed an action in chancery Court, and the chancellor awarded custody to Concetter’s mother, Perlean Davis. James appealed, and the COA reversed and remanded for a finding whether the natural-parent presumption had been rebutted. On remand, the chancellor did not take further evidence, but rather made new findings of fact based on the existing record, again awarding custody to Perlean. James again appealed, and the COA affirmed. On cert, the MSSC reversed and remanded.

In the case of Wilson v. Davis, handed down January 7, 2016, the MSSC laid out in particular what is required to be shown in order to overcome the natural-parent presumption. Justice King wrote for the court (several lengthy footnotes omitted):

¶8. Requiring clear and convincing evidence to rebut the natural parent presumption in one of the four manners listed is important to “honor[] and protect[] the fundamental right of natural parents to rear their children.” Id. However, this Court takes the opportunity to note 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. And, as is clearly established, the best interests of the child is the lodestar in custody cases. This Court has recognized this principle in the past, stating that “[i]n order to overcome this presumption, there must be a clear showing that the parent is unfit by reason of immoral conduct, abandonment, or other circumstances which clearly indicate that the best interest of the child will be served in the custody of another.” Moody [v. Moody], 211 So. 2d [842] at 844 [(Miss. 1968)] (emphasis added). With this decision, we mark a return to that principle. The natural parent 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. In other words, if demonstrable, clear and convincing evidence exists that the child will suffer probable harm and detriment in the custody of the natural parent, the court may find that the natural parent presumption is rebutted, and consequently proceed to a determination of whether a custody award to the challenging party will be in the child’s best interests. 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. See Moody, 211 So. 2d at 844 (“The fact that someone else may be in a better position to furnish the child a larger and more convenient home in which to live does not necessarily mean it would be in the best interest of the child to take it from a parent who is otherwise fit to have the custody of the child.”). This “exceptional circumstances” finding means more than that a child’s bests interests may be served by third party custody; it “requires proof of serious physical or psychological harm or a substantial likelihood of such harm.” Watkins v. Nelson, 748 A.2d 558, 565 (N.J. 2000). More than simply best interests is required, because if that “is the only criterion, then a judge may take children from their parents because the judge personally disproves of the parents’ limited means.” Id. at 567 (internal quotations and alterations omitted). By requiring a much higher threshold than simply best interests, the exceptional circumstances finding “is designed to reduce or minimize judicial opportunity to engage in social engineering in custody cases involving third parties.” Id. It is important not to devolve into a less stringent standard because such would easily “evolve into a ‘fitness contest’ whose outcome will depend on the whims of the trial court.” Id. at 568. “The standard that we adopt has as its benchmark the welfare of the child while at the same time protecting parental rights.” Id. [Emphasis added]

¶9. If the court finds that custody should be granted to the third party under this standard, it is required to make very specific findings of fact on the record. We again emphasize that this is a high threshold. However, we believe this standard will allow chancery courts to reconcile the fundamental rights of natural parents to raise their own children with the primary concern in a custody case, the best interests of the child. See Davis, 126 So. 3d at 38 (“Judges often are faced with the difficult task of removing a child from a loving home in deference to a natural parent’s custodial rights. Even so, the law does not allow parental rights to supercede [sic] the best interests of the child.”).

¶10. Turning to this case, we find that the chancellor erred for several reasons. The original hearing, conducted in the vein of a modification of custody, was held in January 2012. In April 2013, the Court of Appeals reversed the chancery court, finding that it had applied the incorrect standard and had not determined whether the natural parent presumption was rebutted. In July 2013, after a year and a half had passed with a great potential for changed circumstances, and without holding a hearing in which both parties were on notice of the issue of rebutting the natural parent presumption, the chancery court simply amended its original order. The chancery court should have held a hearing and received and considered evidence regarding whether the natural parent presumption was rebutted. See Yelverton, 26 So. 3d at 1055, 1057.

¶11. Furthermore, the evidence found by the chancellor was clearly insufficient to rebut the natural parent presumption. First, the court relied on evidence that James dates and marries women much younger than himself, and that these relationships overlap and include adultery. This Court has noted that marital fault, including adultery, may not be used as a sanction in custody awards. Brekeen v. Brekeen, 880 So. 2d 280, 287 (Miss. 2004). While this is not a divorce action, if adultery may not be sanctioned by denial of custody in a divorce action, it certainly follows that such behavior will be difficult to justify as sufficient to rebut the natural parent presumption. While some of James’s relationship behavior may cause concern, no evidence whatsover was adduced that such behavior has had any actual detrimental effect on Sha, thus the evidence does not show that James’s conduct “is so immoral as to be detrimental to the child.” See Davis, 126 So. 3d at 37 (emphasis added). Additionally, James married his current wife before Concetter passed away and was still married and living with her at the time of the hearing. Indeed, the last extramarital affair and relationship with a younger woman noted by the chancellor were with James’s current wife, and began in approximately 2009, more than two years prior to the hearing. The chancellor made no findings that James was currently engaged in adulterous or immoral relationships, and moreover, made no findings that he was involved in any extramarital relationships that harmed or influenced Sha in any way. See Westbrook v. Oglesbee, 606 So. 2d 1142 (Miss. 1992) (where father and his wife drank alcohol, father used to take drugs but had passed random drug tests by his employer for the past six years, a paternal relative smoked marijuana in front of the child once, and father only had minimal contact with child prior to mother’s death, the Court found “a stronger case must be made against [the father] and matters of more current nature need to be shown to establish that he is unfit as a parent.”).

¶12. The chancellor also cited animosity between Concetter and Annette and James, including physical altercations, as reason to deny James custody. While certainly noteworthy, as it appears in the best interests of Sha to have her mother’s memory and her grief for her mother honored, Concetter has passed away, and there is thus no present danger of such animosity or confrontations. These facts are not sufficient to rebut the natural parent presumption, as they do not bear on James’s fitness or detrimental immorality, but they may be a consideration in a best interests analysis.

¶13. The chancellor also cited the anger issues of Annette’s two sons as a reason to rebut the natural parent presumption. Again, such issues are certainly of concern. Yet, the evidence indicated that neither Sha nor her stepsister had been injured or harmed by the boys. The evidence also showed that the parents were seeking intensive therapy to address the issues. Anger issues in the home of a natural parent that pose a potential danger to a child are certainly something a chancellor should examine in detail. However, in this case, the determination of harm was not based on any proof of actual or probable harm to Sha, but rather, based upon pure speculation on the part of the court. Thus, this is not an appropriate reason to find James unfit or so immoral as to rebut the natural parent presumption.

¶14. Because none of the facts found by the chancery court are sufficient to rebut the natural parent presumption, we must reverse the chancery court on this issue.

So, it takes clear and convincing evidence of probable serious harm or detriment to the child if placed with the natural parent, and placement with the third party is necessary to prevent that probable harm.

The footnotes in this case are chock-full of authority on third-party custody. The only reason I did not include them is that this post would have rivalled Gone With the Wind in length if I had.

This is the case I commented on previously for the proposition that on remand the trial court may rely on the previous record, or may take more evidence. That take, apparently, does not apply any longer in contested child custody cases, particularly third-party custody cases.

The Defrauded Father and Custody

December 9, 2015 § Leave a comment

It is axiomatic that a natural parent is presumed to have the first right against all the world to have custody of his or her own offspring. But this so-called “natural parent presumption” does have some exceptions.

In the oft-cited case, Griffith v. Pell, 881 So.2d 184 (Miss. 2001), the MSSC held that a husband who had acted in all respects as the father of a child, and who learned in the course of divorce proceedings that he was not the father of that child, could be granted visitation, and even custody, over the objections of the mother. The father’s status, of course is what we know as “in loco parentis” — literally “in the place of the parent.”

In JPM v. TDM, 932 So.2d 760 (Miss. 2006), the court held in scenario similar to Pell that the husband was the “father in fact,” and so was not required to submit additional evidence to rebut the natural parent presumption. But the MSSC has made it clear that Pell and JPM are limited to their unique facts:

[I]n loco parentis can—in very limited, unique situations—sometimes be used to help rebut the natural-parent presumption. In both Pell and J.P.M., a husband learned during the pendency of divorce proceedings that he was not the biological father of a child born of, or just prior to, the marriage. In those cases, we reasoned that the natural-parent presumption had been overcome based on several facts: (1) the husbands stood in loco parentis; (2) they had supported, cared for, and treated the child as their own; (3) they could have been required to pay child support (“with the burden should go the benefit”); and (4) the biological fathers were not really in the picture: the one in Pell had disclaimed any interest in the child and had agreed to relinquish his parental rights, while the one in J.P.M. could not even be determined conclusively.

In re Waites, 152 So.3d 306, 314 (¶¶15-16)(Miss. 2014).

In the recent COA case, Welton v. Westmoreland, handed down November 17, 2015, the court affirmed a chancellor’s conclusion that Daniel Westmoreland stood in loco parentis to his step-daughter, Justice, and affirmed the chancellor’s modification of the parties’ divorce judgment to award him custody of her, over the objection of his ex-wife, Sabrina. Some of the pertinent facts from the court’s opinion at ¶1, penned by Judge Wilson:

Daniel is not Justice’s biological father, but until she was twelve years old, she believed that he was. Justice’s biological father abandoned her and has never made an attempt to see her since her birth. Although Daniel knew that he was not Justice’s biological father, he and Sabrina raised her together from the time she was four months old, and in 2004 Sabrina petitioned a court to change Justice’s surname to Westmoreland. Justice learned that Daniel was not her biological father only when, in the lead-up to the instant litigation, Sabrina made a unilateral—and, the chancellor found, “very hurtful”—decision to tell her. After a hearing, the chancellor modified custody and awarded Daniel physical custody of both children.

Daniel and Sabrina had lived together before they married, and during that cohabitation Daniel was led to believe that he was father of Justice. After they married, he learned the truth, but nonetheless acted in every respect as the child’s true father. When Sabrina petitioned a Missouri court to change the child’s surname to Daniel’s, she averred that the natural father had abandoned the child, and the proof was that the natural father had never participated in the child’s life. In their divorce, Sabrina and Daniel included the following language in a PSA: ” … Justice … is not the biological or adopted daughter of [Daniel], but … Justice … has developed a strong bond with [Daniel] and it is in [Justice’s] best interest that [she] … have visitation with [Daniel] … ”

That latter language, establishing visitation, was crucial in the trial court’s determination that it had jurisdiction per the UCCJEA. And the COA affirmed the chancellor’s decision that he had jurisdiction.

There are plenty of other facts in this case that supported the chancellor’s decision. The majority concluded that the chancellor had properly applied and followed the law in this case. In essence, the COA majority agreed with the chancellor that this case was governed by Pell.

You can read the full facts, along with the strong dissent by Barnes, joined by Irving and James, for yourself.

What this case highlights for us down here at ground level is that there are still circumstances where in loco parentis is a viable basis to seek modification, but the circumstances have to be quite particularly akin to those in Pell if your client hopes to succeed.

Temporary Support in a Paternity Case

December 2, 2015 § 2 Comments

Is there a right to a temporary hearing in a paternity case? If so, by what authority?

We know that chancellors in divorce cases may grant temporary relief per MCA 93-5-17(2), which allows the judge to make orders for “temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.”

In paternity cases, however, you can search high and low in Title 93, Chapter 9, dealing with paternity actions, and you will not find a similar statute conferring temporary authority. So, does that mean you can’t have a temporary hearing in a paternity action?

In a word, no.

The answer is in MCA 93-11-56(10), which states:

Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic tests or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.

I have had a lawyer argue that if paternity is uncontested, then there is no pending determination, so temporary relief should be denied. I disagree for the reason that I believe the “determination of parentage” means a final judgment. If there is no final judgment, then I think temporary relief is appropriate, as it would be in a divorce.

So, is the court limited by the language of the statute to temporary support only, leaving the parties to play tug-of-war with the child until a final hearing can be had? I think that would be an absurd result. Section 93-11-65 gives the court general authority to hear custody determinations. Chancery courts are charged to do what is in the best interest of the child. In my opinion, the court must act.

Next time you are asked by a chancellor by what authority you are asking for temporary relief in a paternity case, cite MCA 93-11-65(10). You won’t find it among the paternity statutes.

As a side note, our legislature has amended the custody and support statutes repeatedly to accommodate requests by DHS to address issues they have faced. As a result, we have a mish-mash of conflicting and unclear language, some of which is difficult to harmonize with standard practice in chancery court. One of many examples is the TPR statute that was clearly amended to address DHS concerns, but as a result became inoperable between private parties as a result, as pointed out in this post on the MSSC’s decision in Chism v. Bright. It would be great if some commission could study these statutes, clarify them, distinguish between chancery and county court actions where appropriate, and remove the ambiguities.

Where Am I?