The Better Chancery Practice Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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