The Practicality of Joint Custody
August 10, 2015 § 7 Comments
We are seeing joint custody arrangements more and more frequently in ID divorces. And recent cases out of our appellate courts have signaled not only that joint custody may be awarded in a contested case, but that it should be considered in every case.
When MCA 93-5-24 was first adopted to provide for joint custody arrangements, it was frowned on by many chancellors who believed it was in the best interest of the child “to know where his home is,” and because once it was imposed, it was devilishly difficult to get out of because it required the same showing as modification of custody (material change in circumstances + adverse effect + best interest).
Over time, experience taught us that stability for a child arises more out of a loving, safe, attentive home environment than out of a particular place, and that there were plenty of parents who could provide that kind of environment, even when living apart in separate households.
Another change that made joint custody more attractive was the amendment of MCA 93-5-24(6) to provide that: “Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.” That’s significantly easier to modify than sole custody.
Just because your client wants to agree to joint custody, however, does not mean that it should be adopted. A recent case shows how the practicality of the custody arrangement must be taken into account.
Debra and Christopher Thames separated in 2013, when Debra left Mississippi and moved to San Antonio, Texas, taking the parties’ one-year-old daughter with her. Christopher filed for divorce, and the parties entered into a consent for the judge to adjudicate custody. The chancellor ordered that the parties share joint physical and legal custody, alternating one-month periods of physical custody between them. Debra appealed.
In Thames v. Thames, handed down July 28, 2015, the COA reversed and remanded. Judge Lee, for the court:
¶11. “[T]he polestar consideration in child[-]custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). To that end, chancellors must conduct an Albright analysis, weighing each of the applicable factors. Id. Where both parties consent in writing to submit the issue of custody to the chancellor for his determination, and the chancellor finds both parents fit, joint custody may be awarded. Crider v. Crider, 904 So. 2d 142, 143-49 (¶¶3-17) (Miss. 2005). “[J]oint custody should not be awarded[, however,] where it is impractical or burdensome to the children.” Jackson v. Jackson, 82 So. 3d 644, 646 (¶9) (Miss. Ct. App. 2011). The parents must also be capable of cooperating if joint custody is to be awarded. Crider, 904 So. 2d at 148 (¶16).
¶12. Debra does not attack the soundness of the chancellor’s Albright analysis, but argues that the chancellor failed to consider whether the joint-custody arrangement was practical due to the distance Sofia had to travel every month. Debra also claims the chancellor failed to consider whether the parties were capable of cooperating. Because we find that the joint custody arrangement is impractical, we decline to address whether the parties are capable of cooperating.
¶13. “There have been prior decisions regarding initial joint-custody arrangements that became impractical after one or both parents moved.” Massey v. Huggins, 799 So. 2d 902, 906 (¶11) (Miss. Ct. App. 2001) (citations omitted). In McRee v. McRee, 723 So. 2d 1217, 1218-19 (¶4) (Miss. Ct. App. 1998), this Court affirmed the chancellor’s decision to modify custody based on the father’s relocation to Houston, Texas. The chancellor found that “[t]he joint-custody agreement, which provided for the child to stay with each parent on alternating months, was impractical once [the father] moved to Texas.” Id. at 1219 (¶6). He found that a modification was inevitable and that the question to be answered was who was to have primary custody. Id. The parties to that suit agreed. Id. In Massey, 799 So. 2d at 905-06 (¶¶6-13), this Court agreed with the chancellor that joint physical custody was impractical where one party moved to Long Beach, Mississippi, and the other to Petal, Mississippi. The chancellor was quoted as saying, “as I view the situation, the biggest change that has occurred, as far as these parties are concerned, is that their joint[-]physical[-]custody arrangements are not possible now because they live in different areas of the state.” Id. at 906 (¶13). He stated that there would “have to be a change of [physical] custody” and that the issue was “whether it’s going to be with the mother or father.” Id. The initial custody arrangement in Massey had four exchanges between the parents each week, and both parents sought sole custody upon modification. Id. at 905-06 (¶¶5-13).
¶14. There are also prior decisions that discourage the use of alternating custody arrangements. Case v. Stolpe, 300 So. 2d 802, 804 (Miss. 1974); Brocato v. Walker, 220 So.2d 340, 343 (Miss. 1969); Daniel v. Daniel, 770 So. 2d 562, 567 (¶15) (Miss. Ct. App. 2000). See also Lackey v. Fuller, 755 So. 2d 1083, 1088-89 (¶¶27-29) (Miss. 2000). In Daniel, the child was alternating custody back and forth between Arkansas and Mississippi every two weeks. Daniel, 770 So. 2d at 563-66 (¶¶2-14). This Court, noting that this type of arrangement was to be discouraged, declined to make any changes because the child was nearing the age of five-year-old kindergarten, at which time the father was to exercise primary physical custody. Id. at 563-67 (¶¶2-15). We declined to interrupt what had become the child’s regular routine. Id. at 567 (¶15).
¶15. After conducting an Albright analysis, the chancellor in this case found that joint custody was in Sofia’s best interest, irrespective of the distance she would have to travel to spend time with each parent. We do not agree. Given the distance between San Antonio, Texas, and Brandon, Mississippi, a monthly alternating custody arrangement is not in Sofia’s best interest. The distance between San Antonio and Brandon renders this custody arrangement impractical. In McRee, we agreed with the chancellor that an alternating monthly custody arrangement that shifted the child between Houston, Texas, and Jackson, Mississippi was impractical. See Massey, 799 So. 2d at 906 (¶13). The distance between San Antonio and Brandon is even greater. We, therefore, reverse the chancellor’s judgment and remand this case for a reconsideration of the Albright factors and a determination of who is to have primary custody of Sofia.
That’s a nifty review of the law of joint custody in a nice block of research that you can copy and paste into a motion or even a brief.
This decision should remind you that you have got to advise your clients about what is and is not workable as a joint custody arrangement. Practicality is a significant consideration.
One quibble: Are we going to keep talking about “primary physical custody” or “primary custody” when the MSSC has told us in no uncertain terms that the word “primary” when used in conjunction with any form of custody has no meaning in the law? Porter v. Porter, 23 So.3d 438 (Miss. 2009). I posted about Porter and its pitfall at this link.
Does a Custody Decision Have to Pass Through Joint Custody?
June 22, 2015 § 2 Comments
We’ve talked here before about the principle that, where the parties have consented to allow the chancellor to adjudicate custody, the chancellor may award either party custody, and may award joint custody. That was decided by the MSSC in Crider v. Crider in 2012, and has been elaborated on in cases applying it since.
Does Crider, then, require the chancellor to consider whether joint custody should be awarded before awarding either party sole custody? That was the issue confronting the COA in the case of White v. White, decided June 16, 2015.
Maegan White and Christopher White consented to an irreconcilable differences divorce, with custody of their children, Garrett and Harley, as a contested issue. The chancellor accepted the recommendation of the GAL and awarded sole custody to Christopher, and her opinion made no mention of the possibility or consideration of joint custody. Meagan appealed, arguing that the chancellor’s failure to consider joint custody was error. She contended that Crider and Clark v. Clark, 126 So.3d 122 (Miss. App. 2013) required the judge to consider whether joint custody was in the best interest of the children.
Judge Roberts addressed her argument for the COA:
¶19. Maegan’s interpretation of both Clark and Crider is faulty. In Clark, this Court reversed and remanded a chancellor’s decision to award sole physical custody to the mother, requiring the court to consider the propriety of joint custody on remand. Both parents had requested sole physical custody of their child and submitted the issue to the court for determination. After hearing testimony of the parties, the chancellor had noted: “[In these] kinds of cases . . . it’s hard . . . to give the child to one or the other because everything here would support that. . . . [H]ow can you choose one over the other, but [this court] has to.” Clark, 126 So. 3d at 124-25 (¶10). In reversing the chancery court’s judgment, this Court noted, “Based on our reading of the transcript, it appears that the chancery court may have concluded . . . that it was required to order custody to one parent regardless of whether joint physical custody was in the best interest of [the child].” Id. at 125 (¶12). Noting our concern that the chancery court had incorrectly concluded it was not authorized to consider joint custody, as neither party had requested it, we reversed and remanded for further consideration.
¶20. Similarly, in Crider, parents in an irreconcilable-differences divorce each requested sole custody of their child. The parents submitted the issue of custody to the court for determination. After considering testimony presented and conducting an Albright analysis, the chancellor found that, even though neither parent requested joint custody, it was in the child’s best interest. Thus, she awarded joint custody to the parents for a two-year period. The mother appealed, noting that Mississippi Code Annotated section 93-5-24(2) (Rev. 2013) [footnote omitted] prohibited a chancellor from awarding joint custody unless specifically requested by the parties. This Court agreed and reversed the chancellor’s judgment, prompting the father to petition for certiorari with the supreme court. After a thorough analysis of the statute and its meaning, the supreme court stated:
It is logical and reasonable that “application of both parties” exists when both parties consent to allowing the court to determine custody. The fact that the parties request that the court determine which parent is to receive “primary custody” does not alter this. The parties are allowing the court to determine what form of custody is in the best interest of the child. If joint custody is determined to be in the best interest of the child using court-specified factors, i.e., the Albright factors, the parties should not be able to prohibit this by the wording of the consent.
Crider, 904 So. 2d at 147 (¶12). The supreme court further noted that the chancellor is in the best position to evaluate the “credibility, sincerity, capabilities and intentions of the parties,” and that it is “incumbent upon a chancellor not to award joint custody” unless in the best interest of the child. Id. at (¶13). The court ultimately 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 [section] 93-5-24(2).” Id. at 148 (¶15). Finally, the court affirmed the chancellor’s judgment and noted that a “chancellor may award joint custody in an [irreconcilable-differences] divorce, when the parties request the court to determine custody.” Id. at 148-49 (¶17) (emphasis added).
¶21. Maegan incorrectly interprets both Clark and Crider to require a chancellor to consider joint custody when faced with an irreconcilable-differences divorce. The chancellor “is bound to consider the child’s best interest above all else.” Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996). In both Clark and Crider, the chancellors found joint custody to be in the child’s best interest. In Clark, the chancellor incorrectly awarded sole custody to one parent despite the finding that joint custody was the child’s best interest; in Crider, the chancellor awarded joint custody because that was in the child’s best interest, and the supreme court affirmed that award. Crider and its progeny allow—not require—a chancellor to award joint custody when in the best interest of the child. In the present case, the chancellor found that it was in Garrett and Harley’s best interest to give custody to [Christopher]. Though the chancellor’s order makes no mention of joint custody, he is not required to do so. The chancellor’s primary duty is to consider the best interests of the children and make a determination of custody based on that concern. There is no evidence that the chancellor disregarded the children’s best interests when determining custody. The chancellor’s custody award to [Christopher] was not error.
Not much to add to that, except to cite you to this post on Easley v. Easley, and this one with some random thoughts on joint custody, which might make your collection of authorities on this point complete.
Right to Appointed Counsel in a TPR Case
June 1, 2015 § 5 Comments
If any area of family law has undergone what could unquestionably be considered an upheaval recently, it would have to be termination of parental rights (TPR), per MCA 93-15-101, et seq.
The first shot was fired in Chism v. Bright, about which we previously posted here. Chism is the MSSC case that interpreted MCA 93-15-103 to require that the statutory prerequisites be satisfied before the chancellor may consider whether any of the grounds for termination apply in the case. It was that case that caused us to question whether TPR as a private action between individuals was now extinct.
In Pritchett v. Pritchett, decided April 7, 2015, the COA took up the issue whether an indigent parent facing TPR is entitled to appointment of counsel. Judge Roberts, applying US Supreme Court precedent, concluded that such a right does exist. His reasoning:
¶9. As was outlined above, James claimed indigency and requested an attorney be appointed on three separate occasions, and the chancery court never addressed his requests, nor did it appoint an attorney to represent him. It is well established, through the Sixth Amendment to the United States Constitution, that an indigent defendant in a criminal case has a right to the assistance of counsel, specifically when a defendant’s loss of liberty may result; however, the case before us today is a civil case.
¶10. Nonetheless, it is also well established that “a parent’s desire for and right to ‘the companionship, care, custody[,] and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’” Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). Further, “[a] parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore[,] a commanding one.” Id. In footnote three of Lassiter, the Supreme Court noted that “[s]ome parents will have an additional interest to protect. Petitions to terminate parental rights are not uncommonly based on alleged criminal activity. Parents so accused may need legal counsel to guide them in understanding the problems such petitions may create.” The Supreme Court held in Lassiter that it would not be “‘prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary’ . . . since ‘the facts and circumstances are susceptible of almost infinite variation.’” Id. at 32 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). It also stated that “[i]nformed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel[,] not only in parental termination proceedings, but also in dependency and neglect proceedings[.]” Id. at 33-34. But the Supreme Court ultimately left the decision on whether to appoint counsel to be decided on a case-by-case basis by the state. At the time of Lassiter, statutes in thirty-three states and the District of Columbia provided for the appointment of counsel in termination cases. Id. at 34.
¶11. The termination of parental rights is a serious and permanent proceeding, one which effectively ends any ties between a parent and a child. The Mississippi Legislature recognized the seriousness of such an event and recommended that alternatives to the termination of parental rights be pursued “when, in the best interest of the child, parental contacts are desirable[.]” Miss. Code Ann. § 93-15-103(4). The Mississippi Supreme Court case of K.D.G.L.B.P. v. Hinds County Department of Human Services, 771 So. 2d 907, 909 (¶8) (Miss. 2000), also involved the question of whether a natural parent should be appointed an attorney in a termination-of-parental-rights proceeding. In K.D.G.L.B.P., the chancery court thoroughly questioned the natural mother about the lack of an attorney and whether she would represent herself. Id. at (¶9). She indicated that she would represent herself, she never asked for a continuance, and she did not indicate that she was unable to afford an attorney. Id. at 909-10 (¶¶9-10). The supreme court, in analyzing Lassiter, stated:
One of the most important factors to be considered in applying the standards for court[-]appointed counsel is whether the presence of counsel would have made a determinative difference. The Lassiter decision thus states that appointment of counsel in termination proceedings, while wise, is not mandatory and therefore should be determined by state courts on a case-by-case basis.
Id. at 910 (¶12). The supreme court went on to find that “the mother was granted a fair and adequate hearing.” Id. at 911 (¶14).
She was given ample notice of the proceeding in time for her to secure suitable counsel. At trial, she never asked for a continuance or for additional time to seek substitute counsel. Instead, she signified to the court that she intended to represent herself and that she was ready to proceed. Furthermore, on the day of trial, she did not even allude to the fact that her financial condition might have precluded her from being able to retain counsel. This argument was only raised in post-trial motions. Finally, the evidence supporting the chancellor’s decision to terminate the mother’s parental rights was so overwhelming that the presence of counsel would not have changed the outcome of the trial. Although the termination of parental rights is a serious judicial proceeding, a review of the record indicates that the chancellor’s actions ensured that the mother was provided a constitutionally adequate hearing as guaranteed by the Fourteenth Amendment.
Id.
¶12. The case before us is distinguishable from K.D.G.L.B.P. in that serious due-process concerns exist in this case that were not present in K.D.G.L.B.P. James claimed indigency in three letters filed with the chancery court and requested appointment of counsel. The record does not contain a response from the chancery court. Furthermore, James requested the chancery court assist him with securing transportation to the hearing. The only action taken by the chancery court was to “continue [the] matter for [James] to arrange transportation.” Since James was an inmate in MDOC custody, it appears disingenuous to say that he could arrange his own transportation. The hearing proceeded in James’s absence.
¶13. We simply are unable to conclude, based on the scant record we have, that the presence of counsel would not have made an outcome-determinative difference. As an illustration, James’s request to be present for the hearing could have been secured by his attorney filing a writ of habeas corpus ad testificandum, which would have required James’s presence at the hearing to testify. Such a common-law writ would command the custodian, MDOC, to bring James to the chancery court to testify. Mississippi Code Annotated section 9-1-19 (Rev. 2014) and Mississippi Code Annotated section 11-43-7 (Rev. 2012) provide chancery courts the authority to grant such writs as habeas corpus. Additionally, an attorney’s presence could have aided James with presenting the complex issue of the applicability of the section 93-15-103 to the present facts.
¶14. We reverse the chancery court’s decision and remand this case for the chancery court to determine the question of indigency and the necessity of appointment of counsel under Lassiter, and for the chancery court to make appropriate arrangements for James to be present and/or participate in the proceedings.
The message here is that TPR is serious and has constitutional implications that require heightened due-process requirements. The judge should inquire searchingly on the record whether the defendant understands the nature of the action and what is at stake, and whether the defendant is honestly capable of representing his or her own interests.
Carried to its logical extreme, I wonder whether any pro se party in any case is ever truly equipped to decide whether he or she should proceed without counsel? Is any lay person competent to make that determination without advice of counsel? No matter, all that is required under Lassiter and K.D.G.L.B.P. is a waiver on the record.
Non-Custodial Dangers
April 28, 2015 § 1 Comment
It’s pretty hard to say “No” to a distraught mother who wants to modify custody or visitation because she is concerned that her 8- and 6-year-old boys are imperiled by the father who is letting the children ride a mini-4-wheeler during his custodial time, and is allowing the children to do things like: running barefoot all over his farm; playing down by the pond where the children might fall in or get swallowed by a water moccasin; or riding a pony; or riding in the back of a pickup or on a trailer across the pasture to and from the chicken houses; or jumping from the hayloft into the hay below.
That’s the fact pattern that a mom alleged against my client back in the 1990’s. A very wise chancellor observed that what town children are allowed to do is quite different than what “our country cousins” experience, and, in the absence of specific evidence that any of the children were actually endangered, he would not change anything.
That same principle came into play in the case of Nurkin v. Nurkin, decided April 7, 2015, in which Caroline Nurkin had complained to the chancellor that her ex-husband Brad was endangering their son during visitation by flying him to and from visitation in a private plane. The chancellor enjoined Brad from transporting the child in a private aircraft, and Brad appealed. Here’s what Judge Lee said for the unanimous court:
¶13. Brad cites to Mord v. Peters, 571 So. 2d 981 (Miss. 1990), to support his position. In Mord, the chancellor restricted the father’s ability to fly his children in his private plane. Id. at 983. The Mississippi Supreme Court reversed the chancellor’s decision and found that absent any showing that flying with the father would be dangerous or that the father was acting without concern for the children’s well being, neither the mother nor the chancellor had the right to restrict the children’s activities during visitation with their father. Id. at 984-85. In this instance, there was no testimony other than Caroline’s unfounded fears that Brad’s operation of a plane would endanger Jake’s life. As the supreme court stated in Mord, “Were we to affirm the chancellor’s position . . . endless litigation possibly would result. We can imagine custodial parents coming to court based on unjustified fears and apprehensions and attempt[ing] to prohibit their children from learning how to drive, fish, hunt[,] or swim when a non-custodial parent is exercising his . . . visitation.” Id. at 986. Furthermore, Brad testified that Jake enjoyed flying with him. There was no testimony that Jake was scared or anxious when flying.
¶14. “A non-custodial parent may determine which extra[]curricular activities the child participates in during visitation, including certain activities of which the custodial parent disapproves.” Givens v. Nicholson, 878 So. 2d 1073, 1076 (¶14) (Miss. Ct. App. 2004). Finding the chancellor’s decision erroneous, we reverse and render on this issue.
Of no particular relevance, but of minor interest, is that the appellant in Mord was and is a practicing attorney in Mississippi.
The main point is that restrictions on visitation, and in particular on the visiting parent’s conduct with the child, are not favored in our law. A few bullet points:
- The overnight boyfriend or girlfriend. Absent some objective proof of adverse effect on the children, the ancient custom of enjoining overnight guests of the opposite gender to whom the parent is not related by blood or marriage is no longer allowed. See, Harrington v. Harrington, 648 So.2d 543, 547 (Miss. 1994); Robinson v. Robinson, 722 So.2d 601, 605 (Miss. 1998).
- Restrictions on religious practices are always suspect and rarely upheld. A visiting father was permitted to take his child to a snake-handling church service, so long as the child was not permitted to touch or get within danger of being bitten. Harris v. Harris, 343 So.2d 762 (Miss. 1977). Even a chancellor’s comment about a parent’s religious beliefs may call a chancellor’s ruling into question. See, e.g., Muhammad v. Muhammad, 622 So.2d 1239 (Miss.1993).
- Professor Bell lists several other categories in which restrictions on visitation have been upheld to a greater or lesser extent: abusive behavior; family or spousal violence; dangerous conduct; emotional abuse; potential kidnapping; imprisonment; mental health issues; poor parenting r household conditions; sexual conduct; and interference with visitation. D. Bell, Bell on Mississippi Familly Law, 2nd Ed. § 12.08[4][a] through [i] and [5].
These can be issues that are fraught with emotion, and it’s not easy to persuade your client that a futile trip to court is not in his or her, or the child’s, best interest. The more you know about this area, the better equipped you’ll be to advise your client.
An In Loco Parentis Case with a Twist
April 13, 2015 § Leave a comment
Gene and Eunieca Smiley were awarded custody of a minor child, Christopher, in a Memphis Juvenile Court proceeding. In addition, Eunieca’s cousin signed an agreed order giving the couple custody of her daughter, Alaina, in 2005.
Gene and Eunieca separated in 2009, but they nonetheless filed a proceeding to adopt Alaina. After the separation, Gene had moved to Memphis with Christopher, and Eunieca resided in Tishomingo with Alaina.
In November, 2010, Eunieca filed for divorce. That same month the adoption was granted (the natural mother had consented; there is no mention of a natural father). The adoption, however, was set later aside for reasons undisclosed in the opinion.
During the pendency of the divorce, Christopher was removed from Gene’s home for physical abuse. Gene conceded that he had gone overboard in whipping the boy with a belt, leaving bruises on the child’s back.
There was testimony of some creepy behavior by Gene involving inappropriate touching and handling little girls at his church and in his own home, and some inappropriate conduct with Alaina.
After a trial, the chancellor ruled that Gene’s had no standing to contest custody because his claim was based on in loco parentis, which the judge said was not adequate to confer standing. She also found that Gene had a history of family violence, and that there were insufficient safeguards to ensure Alaina’s safety when with Gene, so that he should have no visitation with the child, per MCA 93-5-24(9)(d)(i).
Gene appealed. The COA affirmed in part, and reversed and remanded in part, in the case of Smiley v. Smiley, decided March 31, 2015.
On the standing issue, Judge Irving wrote for the majority (Carlton dissented) that Gene did have standing, but that the chancellor correctly adjudicated custody. The court held that the judge’s treatment of Gene’s request for visitation to be cursory, and noted that the GAL in the hearing had reserved the right to make a recommendation on visitation until after hearing all the evidence, but she never did so as to give the judge a basis for finding insufficient safeguards. The court remanded for the chancellor to determine whether “adequate provision” could be made for Alaina’s safety as in the statute.
You should read the opinion to gain an appreciation of the scope of this fact-intensive case.
A few thoughts:
- “I thought in loco parentis was dead” you might be thinking. Well, as between a natural parent and a third party, it is not alone enough to defeat the natural-parent presumption. As between two non-biological parents who have not adopted a child, however, in loco parentis is available.
- Does it bother anyone else that separated parents with a divorce filed were allowed to adopt a child? As noted, the opinion does not tell us why the adoption was set aside.
- The chancellor did not specifically address the Albright factors in ruling on custody; however, she did adopt the GAL report, which incorporated an Albright analysis, and the COA said that was good enough.
- You need to read the code section cited above. It places custody and visitation limitations on the ability of one found to have been guilty of a history of domestic violence.
Must There be a Pending Adoption for TPR to Proceed?
March 25, 2015 § 2 Comments
We discussed the TPR statute yesterday in the context of the MSSC’s holding in Chism v. Bright that the statutory prerequisites in MCA 93-15-103(1) must be met before the chancellor may proceed to consider the grounds for termination of parental rights.
The last of those prerequisites is
… when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them …
In the COA case Farthing v. McGee, decided February 17, 2015, the chancellor ruled in part in a TPR case that the statute required a pending adoption action in order for TPR to proceed. The COA disagreed. Judge Maxwell wrote for a unanimous court, with Judge James specially concurring:
¶20. We also note the chancellor believed a pending adoption petition was a prerequisite to considering grounds for termination. But while an apparent concern of the statute is when a parent’s rights may be terminated for a child to be adopted, there is no statutory mandate that an actual petition must be filed before termination is sought. See Miss. Code. Ann. § 93-15-103(1). Instead, our supreme court recently reemphasized the court must consider if “adoption is in the best interest of the child” as one of the three prerequisites to considering grounds for parental-rights termination. Chism v. Bright, 152 So. 3d 318, 323 (¶15) (Miss. 2014) (emphasis added). Our high court made no mention of the necessity for a pending adoption petition.
¶21. On remand, the chancellor shall consider the GAL’s report when addressing the prerequisites of section 93-15-103(1), as discussed and emphasized by the supreme court in Chism, 152 So. 3d at 323 (¶15). If those prerequisites are deemed met, the chancellor shall address the abandonment-related grounds raised in Kristen’s termination request. [Footnote omitted]
So, until the supremes speak further on this topic, the rule is that the trial court must take into account whether adoption is in the best interest of the child, but no adoption action needs to have been filed.
This is the first case of which I am aware in which the courts have looked at TPR through the prism of Chism ( I know, I did that on purpose). Judge Maxwell’s opinion specifically mentions the abandonment language of prerequisite 1, which I discussed yesterday. That’s comforting and lends a little more weight to the idea that TPR might not be as moribund as we thought.
A Second Look at the TPR Prerequisites
March 24, 2015 § 2 Comments
We talked here earlier in the year about the MSSC’s December 11, 2014, ruling in Chism v. Bright that held, in essence, that until the statutory prerequisites are met, the chancellor may not proceed to examine whether the statutory grounds have been met.
Here’s what the court said:
¶15. As mentioned above, the chancellor found that Jim’s parental rights should be terminated because he exhibited “ongoing behavior which would make it impossible to return the minor child to his care and custody because he has a diagnosable condition, specifically alcohol and drug addiction, unlikely to change within a reasonable time which makes him unable to assume minimally, acceptable care of the child . . . .” But neither the chancellor nor the Court of Appeals addressed subsection (1) of Section 93-15-103, which sets out three prerequisites that must be met before the court may invoke any specific ground for termination. Section 93-15-103(1) states:
(1) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.
Miss. Code Ann. § 93-15-103(1) (Rev. 2013) (emphasis added). See also In Re Dissolution of Marriage of Leverock and Hamby, 23 So. 3d 424, 428 (Miss. 2009). This Court previously has categorized the three prerequisites in subsection (1) as follows:
(1) the child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time or the parent is unable or unwilling to care for the child; (2) relatives are not appropriate or are unavailable; and (3) adoption is in the best interest of the child.
Leverock, 23 So. 3d at 428 (emphasis added).
The Supreme Court concluded that, since the child had not been removed from Jimmy Chism’s home as provided in prerequisite 1, it was improper for the chancellor to proceed to consider the grounds.
But are there only three prerequisites, or are there really three with one having an alternative? Notice that it is the supreme court that numerically categorized the prerequisite section, not the legislature. TPR is purely a creature of statute. The rules of statutory construction require that we give effect to every provision and try to harmonize language that may appear not to fit. Here’s how I would read section 103(1):
1. (a) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or
(b) the parent is unable or unwilling to care for the child,
2. relatives are not appropriate or are unavailable,
3. and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them,
the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.
The court actually addressed 1(b) in its opinion at ¶ 16, finding that Jimmy had not been proven to have been unable or unwilling g to care for the child.
So to the extent that I rang the alarm bell over the impending doom of our TPR statute, I unring that bell for now, subject to how the courts will apply this statute in the wake of Chism. There was a recent case that did address it, which I will talk about here tomorrow.
For now, though, I wish the court would clarify that there is an alternative in prerequisite 1 — abandonment — that is actually the most common and customary basis for TPR.
No Change = No Modification
February 25, 2015 § Leave a comment
Nathan and Kathryn Robinson were married in January, 2004. At the time of the marriage, Kathryn was pregnant with the parties’ daughter, Bailey, who was born in July, 2004. During the pregnancy, Kathryn was diagnosed with Hodgkin’s lymphoma. Shortly thereafter, Nathan and Kathryn separated, and Kathryn moved in with her parents.
The couple were granted an irreconcilable differences divorce on May 3, 2005, and they agreed that Kathryn would have custody of Bailey.
Kathryn moved to her own place after the divorce. Over time, she developed neuropathy in her hands as a result of the chemotherapy she underwent for her lymphoma, which made it impossible for her to drive. She had to rely on her parents to help transport Bailey to and from school, which meant that the child often stayed overnight with her grandparents on school nights. She slept at Kathryn’s on weekends and during vacations.
In 2009, Nathan filed a modification action seeking custody of Bailey. He alleged that Kathryn’s health condition impaired her ability to care for Bailey, and that Kathryn had ceded her parental responsibility to her parents. Following a trial, the chancellor found that there had been no change in circumstances because Kathryn’s health condition existed at the time of the divorce, and that Kathryn had not abdicated her parental duties in favor of her parents. Nathan appealed.
In the case of Robinson v. Robinson, handed down February 10, 2015, the COA affirmed. The opinion by Judge Griffis agrees with the chancellor’s conclusion about the pre-existing condition, and recites the familiar rule that where the parties are aware of the condition at the time of the divorce, neither may try to use it later as a basis to modify. The court relied on the same principle to affirm the finding that Kathryn had not abandoned her role as a parent since both parties knew at the time of the divorce that she would have to have help from her parents with Bailey. The opinion distinguishes the case of McBride v. Cook, 858 So.2d 160 (Miss. App. 2003), in which the mother totally abdicated her parental role, which was unforeseen at the time of the original custody judgment.
As an attorney, you do not always know what all of the circumstances are that might affect a later proceeding. We don’t know from the COA case what the exact language was that effected the custody agreement in the divorce action. If you were Kathryn’s attorney at the time, wouldn’t it have made you look like a genius if you had spelled out specifically in the PSA what her health condition was at the time, and that she was going to have to rely on help from her parents, but that Nathan nonetheless agreed for her to have custody? What an airtight package that could have been.
I also wonder whether more emphasis on the neuropathy and its impact on continued custody, perhaps bolstered with some expert opinion testimony, might have tilted the result in Nathan’s direction. A good argument could be made that, although the Hodgkin’s was known at the time of the divorce, the complication of neuropathy was not, and it arguably has a direct detrimental effect on custody.
As the COA opinion pointed out, though, the record was clear that Kathryn had a pretty good track record of taking care of Bailey, even with her physical impairments, so the modification case was an uphill climb.
A Higher Duty
February 4, 2015 § 5 Comments
Many lawyers get into the mindset that winning is the most important thing, and it shows up in their take-no-prisoners, no-holds-barred, Rambo-ish approach to litigation. Discovery is adversarial and contested, sanctions are threatened at the slightest slight, and aggressive motion practice is used like a jousting match of yore.
Those lawyers point to the duty in our professional rules to represent the client zealously, within the bounds of the law. The emphasis, though, is on zeal.
Consider, however, this scenario:
You are representing a young mother in a custody contest. Her former husband is trying to get custody of their 3-year-old son, who has had bruises on his legs, and who has nightmares and is a bedwetter. The father knows something is wrong, and as discovery proceeds it is apparent that he does not have enough solid information to make a case of change in circumstances and adverse effect. The court has not appointed a GAL because the allegations to this point do not warrant it. You, however, learn as the case goes on that your client had a live-in boyfriend who did, indeed, whip the child. The boyfriend is a convicted felon with a violent history, and your client is afraid of him. The other side knows nothing about this, and has not even asked anything in discovery that your client had to lie about to conceal the information. When you confront her with the new-found information, she admits it, but assures you that she made the boyfriend leave during the litigation, although he has made it clear that he will return when the case is over.
What do you do? On the one hand, if you voluntarily disclose the information without a specific discovery request for it, you will have violated your client’s confidentiality. And the Rambo in you has to acknowledge that it will surely send the case plummeting from its heights as a sure winner to the depths of loserdom. On the other hand, it certainly does not seem like it’s in the best interest of the child to be in the mother’s home with that violent boyfriend, and you know your chancellor well enough to know that if those facts came to light, she would not hesitate to protect the child.
The highest and most serious duty of a chancellor is to do what is in the best interest of a child. The best interest of the child is always the “polestar consideration” in every custody and child-affecting decision in chancery court. The rules of evidence do not trump that responsibility, nor do considerations of winning and losing, attorney-client privilege, or anything else.
As an officer of the court, you may not do anything that thwarts the court in its duty. You may not stifle the truth in such matters, or suppress evidence, or do anything that will result in compromising the safety of a child.
So how can you act and still maintain the confidentiality of your client? If I were the attorney, I would file a motion for appointment of a GAL. No details need to be pled. You could recite that the father’s suspicions should be investigated for the best interest of the child, and leave it at that. A competent GAL will ferret out the truth.
A chancellor told me recently of a case he had in which he overruled the father’s petition to modify custody. It was unquestionably a case in which the father was unfit, and the mother’s situation was better for the child. It was not a close case. Seven months later, however, the mother’s live-in, convicted-felon-boyfriend shot and killed the four-year-old son because he wet the bed. No one hid the information that the mother had someone like that living with her from the judge; it was a situation that developed after the case was concluded. Had it been part of the facts existing at the time of the modification, the judge could have taken other measures to protect the child, but only if someone made it known.
In my opinion, in cases involving the best interest of a child, you have a higher duty.
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