Child Custody | The Better Chancery Practice Blog

QUIBBLING WITH ALBRIGHT

July 17, 2012 § 2 Comments

In September, 2010, a special chancellor granted Sharon and Allen Flowers an irreconcilable differences divorce and adjudicated custody, awarding it to Allen with Sharon having visitation. Sharon was displeased with the result and appealed

The COA case of Flowers v. Flowers, decided June 19, 2012, includes several points that I found interesting:

Sharon claimed that the chancellor improperly used denial of custody to sanction her for a post-separation relationship. Is it just me, or is this claim automatically raised any and every time that the court finds against a party on the “moral fitness” Albright factor? Chancellors are required to make a finding on every Albright factor for which there is evidence in the record. Here there was evidence that Sharon had initially lied to the GAL about the relationship, and then admitted it. Had the chancellor not taken that into consideration, it would have been error. There is nothing in Judge Ishee’s opinion that would lead one to conclude that the chancellor based his decision solely or even mostly on this factor. Adultery may be the factor among others that tips the scales, but it may never be the factor standing alone that determines custody.
The chancellor found that “Both children are male children and therefore this factor favors the father.” The COA found no error on this point, and cited Reed v. Fair, 56 So.3d 577, 582 (Miss. App. 2010). This is a curious conclusion, in my humble opinion. What exactly is the basis for such a finding? What is the socio-scientific basis, if any, upon which to base such a conclusion? Had the chancellor found that the male gender of the children favored the mother, would that have been error? Now, there may have been evidence in the record of differences in disciplinary problems or behavior under the suprevision of males as opposed to females, or something of that sort, but that is not reflected in the appellate opinion. In Reed v. Fair, the court upheld the chancellor’s finding that the twelve-year-old child needed the influence of a man in his life since there were no other male family members available and there had been a need for counselling. Fair enough (no pun intended). But to make the naked assertion that a child of one gender should be in the custody of the parent of the same gender seems simple-minded to me (no offense to the learned chancellor in the Flowers case). There are studies that establish that younger males are actually better off under the influence of the mother. And there is MCA 93-5-24(7), which says that “There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.” Isn’t the same-gender line of thinking based precisely on such a presumption?
The COA opinion says that “[Sharon] further argues that the [sex-and-health] factors should have been grouped together as one factor, instead of treating them as two separate factors.” She goes on to argue that the result would have been that she would have prevailed in an additional category, adding one more tally to her column, and perhaps giving her the higher score that would have given her the victory. The flaw in her argument, though is that she could prevail in several more categories than Allen and still lose custody. Albright is not a mathematical formula or a scorecard. It is a matrix for the trial judge to use in making sure that all factors that bear on the best interest of the child in a custody case are considered, and in turn used by the appellate courts to evaluate whether the chancellor did her job properly.

If all of the Albright factors that apply in a given case are considered and addressed by the chancellor, and there is substantial evidence to support the chancellor’s decision, then the chancellor’s decision should be affirmed. Any quibbling about this one factor or that, or trying to readjust the “scoresheet,” should be brushed aside on appeal.

Only last month, in the case of Easley v. Easley, the COA again addressed an appellant’s argument that he should have been awarded sole custody rather than joint custody because he had a slight edge in the Albright scorecard:

[The father’s] argument appears to be based on the mistaken assumption that joint custody cannot be awarded if more of the Albright factors favor him, however slightly. We see no reason why some marginal advantage of one parent should preclude the chancellor from awarding joint custody, so long as both parents are fit and joint custody is found to be in the children’s best interest[]. See Phillips v. Phillips, 45 So. 3d 684, 694 (¶30) (Miss. Ct. App. 2010). “The Albright factors are a guide. They are not the equivalent of a mathematical formula.” Lawrence v. Lawrence, 956 So. 2d 251, 258 (¶23) (Miss. Ct. App. 2006) (citation and quotation omitted).

The case of Jackson v. Jackson, 82 So.3d 644, 646 (Miss.App. 2011), is also on point.

In one case I tried, I found for the mother in most of the Albright categories. When it came to the mental health of the parties, though, I found that her history of and active mental illness, and her refusal to deal therapeutically with it, overshadowed all of the other factors combined, and I awarded custody to the father. Had I treated the Albright factors as a winner-take-all scoreboard, I would have awarded the two little girls (gender favored the mom?) to an actively delusional, psychotic woman who left a psychiatric hospital against medical advice and who would not take her medication. That case was not appealed, but I am confident that it would have been affirmed.

Perhaps some of the confusion stems from appellate court decisions that direct chancellors to make a finding as to which party prevailed on each factor, giving the impression that the prevailing party “wins on points.” That’s not the law.

I suggest that, when you try a custody case, you should focus your time, attention and effort on developing quality evidence rather than a quantity of evidence designed to put points on the board. The former strategy will work for the best interest of the children. The latter may wind up winning the scoreboard and losing the game.

JOINT CUSTODY IN THE CHILDREN’S BEST INTEREST

June 19, 2012 § 3 Comments

The case of Easley v. Easley, decided by the COA June 5, 2012, is the latest iteration of the principle that the trial court may award joint legal custody in an irreconcilable differences consent divorce even where there is no specific joint request for it by the parties.

In Easley, the parties consented to an irreconcilable differences divorce and submitted the issue of child custody to the chancellor for adjudication. The chancellor found that joint custody would be in the best interest of the children, but concluded that he could not award it because of the language of MCA 93-5-24(2), which reads, “Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.” Since the Easleys had not both applied to the court specifically for joint custody, the chancellor awarded custody to the father and the mother appealed.

The COA reversed and remanded, citing and quoting Crider v. Crider, 904 So.2d 142, 147 (Miss. 2005), as follows:

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. It would be the same if the parties requested that the court determine which party will receive “all marital assets.” The chancellor has the responsibility to determine how to best distribute the assets according to court-specified factors (the Ferguson factors) and must not be bound by the wording of the consent to award all marital assets to one party.

The COA opinion goes on to reject the appellee’s argument that he prevailed slightly in trial court’s adjudication of the Albright factors, so that the award of exclsuive custody to him should be upheld. Judge Fair’s opinion cited and quoted Jackson v. Jackson, 82 So.3d 644, 646 (Miss.App. 2011), as contrary authority:

The COA opinion closes with a remand to the trial court to consider the children’s present circumstances as well as those existing at the time of the November, 2010, trial, and closes with this language at the end of ¶11: “If joint custody remains in the children’s best interest, the chancellor should not hesitate to award it.”

A previous post focusing on Crider is here.

As for the Crider court’s reference to the term “primary custody,” you should keep in mind that the addition of the term “primary” to custody adds no legal meaning whatsoever. You can read a post on that point here.

A previous post about decision-making in joint legal custody arrangements is here.

And some general observations about joint custody are in a post you will find here.

I think Crider is clear that any time you submit custody to the court for adjudication in an irreconcilable differences divorce via consent you are opening the door to an award of joint custody, no matter what the language of the consent, and you can not word the consent in such a way as to rule it out.

CHILDREN IN THE VORTEX, PART TWO

February 2, 2012 § Leave a comment

Yesterday I posted about children caught in the middle of divorce conflict. In response, Reggie Blackledge, a lawyer in Collins, MS, sent me this poem he wrote, with permission to share it with you.

CHILDREN IN THE VORTEX

February 1, 2012 § Leave a comment

The maelstrom of conflict between parents in a divorce or custody battle often catches up the children and dashes them against the same rocks that brought the marriage to destruction. Even the mildest custody conflict can damage children and their relationships with one or both parents, but the injury can be severe when the conflict is intense and where one or both parties bring the children into the vortex.

As an attorney, you stand in a position to influence your clients to minimize the damage. Here are some thoughts to share with your custody clients:

A custody dispute is not about winning or losing. Custody is decided on the basis of what is in the best interest of the children. No matter what the judge decides, his or her decision will be based on what is best for the children. Help your client understand the Albright factors, how they apply in her case, and how to maximize her strong points while minimizing her exposure on the weak points.
Hate and revenge do not help. If your client’s motivation for custody is hate and/or revenge, he will be operating under a considerable disadvantage because (1) those are not positive factors under Albright for custody, and (2) they communicate to the children that they are spoils of war to be won instead of children who are to be loved no matter what the controversy is between the parents.
Never allow the children to make the custody decision. Children do not know what is best for them. They are subject to all sorts of influences, the strongest of which appeal to what they believe they want. It is appropriate to ask a mature child’s opinion, but only as input, never as a final decision. The parent or lawyer who tells a child “You will get to decide when you reach x age” is doing the child a great disservice because the law never gives the child a right to finally decide; that decision is always up to the judge. Children who are made to decide often feel that they have betrayed one parent or the other. Making a child decide is putting the child squarely in the middle of the conflict.
Children who are placed in the middle learn to manipulate. Parents who put their children in the middle usually find that the children become master manipulaters, playing both sides against each other to gain whatever it is that the child wants or thinks he wants.
Putting the children in the middle complicates the case. When the parties put the children in the middle, the resulting conflict spawns contempts, modifications, more discovery about all kinds of perpheral matters, and adds expense, stress, conflict and injured relationships to everyone’s plates.
Drop the drama. The only enjoyable thing about a divorce or custody battle for most people is the attention and sympathy they derive from others over the suffering and pain they are having to endure. So when they find their friends’ and family’s attention wandering, they will ramp up the drama to regain the spotlight. That’s self-defeating because it usually takes some kind of negative action to stimulate the other side into conflict. The best and most productive policy is to drop the drama and act like an adult and a caring parent.
Act like an adult. The best behavior you can model for your children is to act like an adult. Treat the other party with the respect he or she deserves as parent of your child. Eschew juvenile name-calling. Turn your back on invitations to argue. Avoid sarcasm and profanity. No threats, veiled or otherwise. Your children are watching and learning from your every move.

Lawyers are in a superior position to advise clients about where to expect to find pitfalls and landmines as they navigate the no-man’s land of child custody litigation. Don’t be reticent when it comes to guiding your clients and even bringing them up short whan they get out of line. That’s part of what you’re there for.

4 WAYS TO LOSE THE NATURAL PARENT PRESUMPTION

November 2, 2011 § 3 Comments

It’s an axiom of Mississippi law that the natural parents, if fit, are presumed to have the first right against everyone else in the world to have custody of their children. K.D.F. v. J.L.H., 933 So.2d 971, 980 (Miss. 2006). This means that, if the natural parent is challenged for custody by a non-parent, there must be a showing of unfitness that will trigger an Albright analysis to determine the best interest of the children.

That presumption, however, can be lost. Here are the 4 ways:

Voluntary Court Order. If the parent voluntarily relinquishes custody and there is a court order to that effect, the presumption is lost, and the party to whom custody is relinquished gets custody until there can be shown to be a material change in that person’s household that is having an adverse effect on the children, and it is in the best interest of the children to change custody. Grant v. Martin, 757 So.2d 264 (Miss. 2000). In Grant, the MSSC held that the natural mother who had agreed by court order giving her parents custody had given up the natural parent presumption, with the effect that she had to prove material change-adverse effect-best interest to regain custody. Under Grant, it is immaterial whether the natural parent is unfit or has abandoned or deserted the children; the operative fact is the agreement memorialized by a court order. Note that the court has declined to extend Grant to include temporary orders. Vaughn v. Davis, 36 So.3d 1261, 1266 (Miss. 2010).
Abandonment. A parent who is shown by “clear proof” to have abandoned the children has lost the presumption. McKee v. Flynt, 630 So.2d 44, 47 (Miss. 1993). Abandonment is ” … any conduct on the part of the parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child …” In re Leverock and Hamby, 23 So.3d 424, 429 (Miss. 2009), citing Ainsworth v. Natural Father, 414 So.2d 417, 419-20 (Miss. 1982), which defined abandonment as including both active relinquishment and avoidance of duty.
Desertion. Inaction or avoidance of duty toward the children. Requires clear and convincing evidence. In Leverock, at 33, the Court found that a father had deserted his son by completely avoiding both his moral and legal duties and obligations as a father for more than two years, during which time he had showed a complete disregard for the welfare of his son. The court said that the father had chosen “ ‘to take an extended holiday from the responsibilities of parenthood’ and we find that he should not now be able to claim the benefit of his status as a natural parent….” Once the finding of desertion is made based on clear and convincing evidence, the court must embark on an Albright analysis.
Adjudication of Unfitness. When the court awards custody to a third party based on the natural parent’s unfitness, the presumption no longer applies, and the material change-adverse effect-best interest standard applies. Adams v. Johnson, 33 So.3d 551, 555 (Miss. App. 2010).

THE INFORMAL CUSTODY ARRANGEMENT AND ITS IMPACT ON PERMANENT CUSTODY

September 26, 2011 § 3 Comments

I talked here before about the Varner case, which holds that a child-support-paying parent (the father in that case) who has a child come to live with him may receive a credit against unpaid child support for that de facto custodial time. In Varner, the mother had court-ordered custody, but the parties made a handshake deal for the child to go and live with the father for a time.

Taking a similar set of facts, would the father have a basis to ask the court to modify custody?

In Arnold v. Conwill, 562 So.2d 97 (Miss. 1990), the father had the son with him for 16 months because of the mother’s unsettled living situation. The mother had asked the father to take the boy until she could get settled. When she did get into a stable situation, she asked the father to return the child to her custody. When he refused, she picked the child up from school, enrolled him in a new school, and resumed full-time custody of the son. The father filed a modification action, and the chancellor granted him custody due to the 16-month period.

On appeal, the MSSC recited the familiar material change-adverse effect-best interest test for changing custody. Applying that test to the facts of the case, the court said (at 100):

“To her credit, when she fell upon hard times, appellant called the child’s father for help. The custody was temporarily interrupted because of conditions over which she had no control. When she stabilized the situation, she asked appellee to restore custody to her and he declined. The parties’ act, in temporarily modifying the decree, was not binding on the court. The only change in circumstances, upon which the appellant can rely, and which the court accepted, was the fact that the father had custody for sixteen moths while the appellant, the mother, had liberal visitation withh the child.

Simply, the facts of this case do not reflect a material change in the circumstances of the parties and the child, which adversely affected [the child], to the extent that his custody should be changed from appellant to appellee.”

A lot of water has flowed under the bridge in the 21 years since this case was decided, but I believe it is still good law for the above points, and it has never been overruled or criticized. There are, however, two wrinkles:

At page 100, there is this statement: “The courts do not favor separating siblings when their parents divorce.” That concept has been refined since then to provide that, although separation is not favored, there is no hard and fast rule about separation, but it is one of many factors to be considered by the court among the Albright factors for determination of best interest. See, for example, Kimbrough v. Kimbrough, decided by the COA May 3, 2011.
And on the same page is the statement that the facts of the case did not reflect material change-adverse effect-best interest, and “Neither did the motion so charge nor the chancellor so find.” As we’ve discussed before, the law now is that if you fail to plead the elements of custody modification, your case is subject to being dismissed for failure to state a claim upon which relief can be granted.

AUTOMATIC MODIFICATION OF CHILD CUSTODY

August 23, 2011 § 2 Comments

You are representing your client in an irreconcilable differences divorce, and the long-awaited PSA has arrived in the mail from counsel opposite. Here are the provisions dealing with custody:

(g) So as to insure a fit and proper environment for the rearing of the minor children, the parties agree that in the event there is a scintilla of evidence of unmarried sexual activity by wife where the minor children are residing or in the vicinity of the minor children, wife shall immediately forfeit and be divested of all custody rights with respect to the minor children, custody of the minor children thereupon automatically vesting in husband, subject only the right of wife to have reasonable visitation with the minor children at reasonable times and places.

(h) In furtherance of the concept of a “home base” hereinabove discussed, the parties agree that the children shall reside in the Columbus, Mississippi area. Wife agrees to give husband sixty (60) days advance written notice of any intended relocation. Unless both parties agree that the children may be removed from the Columbus, Mississippi area to this new location, wife shall be divested of custody of the minor children upon such relocation and custody shall thereupon be vested in husband subject to further orders of the Court. Wife shall have the right to reasonable visitation with the minor children at all reasonable times and places during this period until the matter is finally determined by the Court.

(i) During the portion of the year in which the children reside with wife, wife agrees to give husband advance notice of any trips she plans out of the town of Columbus, Mississippi and further agrees to limit any out of Columbus, Mississippi trips to not more than three nights and to provide husband with information regarding her destination and location so as to afford him a basis to communicate with her if necessary. Furthermore, during such out of town trips, husband, at his option, shall have the right to have custody of the minor children.

It looks pretty much like what your client has told you was her agreement. She and her soon-to-be ex want the children to have some stability, and she wants this divorce over so she can get on with her life. If that’s what her husband wants, she is willing to agree to it just to get this over with.

Subparagraph (g) would effect an immediate change in custody in the event that your client engaged in unmarried sexual activity “where the children are residing” or in their vicinity, and the burden of proof would be a “scintilla of evidence,” a humble standard by any measure.

Subparagraph (h) would create an automatic modification of custody if your client relocates from the Columbus, Mississippi, area.

Subparagraph (i) essentially provides that unless the father gives your client permission to take the children out of town for longer than tree nights, she must give him custody for the duration of such trips.

What is your advice to her?

Check out the case of McManus v. Howard, 569 So.2d 1213 (Miss. 1990). There, the parties had agreed to the very terms cited above, which were approved by the chancellor. Later, the mother sought either a modification or an MRCP 57 declaratory judgment that the agreement was unenforceable as to subparagraphs (h) and (i). It appears that neither party injected subparagraph (g) into the litigation, but one can speculate that it was a tactical decision by counsel to avoid an appearance of wanting to promote or condone inappropriate activity. The MSSC did not explain why it referenced the provision in its opinion.

The chancellor denied modification for the reason that the material change-adverse effect-best interest test had not been met. He denied declaratory judgment on the ground that the parties had contracted for the custodial arrangement, and their contractual agreement should be enforced.

In the MSSC opinion, Justice Blass wrote (at page 1216):

“Being given jurisdiction by Miss.Code Ann. 93-5-24(6) (Supp.1990) and the children being wards of the state, Tighe v. Moore, 246 Miss. 649, 666, 151 So.2d 910, 917 (1963) and there being an ample body of the case law for the guidance of the court, Arnold v. Conwill, 562 So.2d 97, 99 (Miss.1990); Rutledge v. Rutledge, 487 So.2d 218, 219 (Miss.1986), the court simply cannot surrender or subordinate its jurisdiction and authority as to the circumstances and conditions which will cause a change in custody. We hold such an Agreement to be void and contrary to public policy. We have recently considered a similar problem and have reached the same conclusion. Bell v. Bell, No. 89-1108 (Miss. Oct. 3, 1990). Accordingly, we reverse, and grant judgment here for the declaratory judgment as to later sub-paragraphs 2(h) and 2(i). No other matters were submitted to this Court by the appeal.

The Bell case cited by the court found unenforceable an agreement between the parties under which the children were required to live in Tupelo until majority, and the relocation of the custodial parent would trigger an automatic modification of custody. Bell v. Bell, 572 So.2d 841, 845 (Miss. 1990).

The MSSC in McManus held that subparagraphs (h) and (i) above were unenforceable and reversed the chancellor’s ruling. There was no mention of subparagraph (g), because it was not a part of the underlying suit and was not raised on appeal, but the court’s rationale would apply to it as well, in my opinion.

It was my experience as a practitioner that parties occasionally wanted to include similar provisions in their PSA’s. Our chancellors would not approve an agreement that included the language, and I so advised my clients.

ANOTHER UNSUCCESSFUL ASSAULT ON THE NATURAL PARENT PRESUMPTION

June 29, 2011 § 1 Comment

It is axiomatic that as between a natural parent and a third party, it is presumed that the best interest of the child will be preserved by being in the custody of the natural parent. Sellers v. Sellers, 638 So.2d 481, 486 (Miss. 1994). This natural parent presumption over third-party custody has been the subject of prior posts here and here.

In Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), the supreme court reversed a chancellor’s ruling that a temporary agreement to change custody was enough to overcome the presumption. In Wells v. Smith, decided May 31, 2011, by the COA, the appellate court rejected in loco parentis as a basis to overcome the presumption.

In Brown v. Hargrave, decided June 28, 2011, the COA rejected yet another assault on the presumption, this time based on the judge’s finding that the totality of the circumstances and the plaintiff’s long-term care of the child. Relying again on Vaughn v. Davis, the found that the trial judge applied an incorrect legal standard, and sent the case back to the chancellor for a rehearing to determine whether some other basis exists to overcome the presumption.

I’m going to take up for the chancellor in this one so as to make an important point. Chancellors are sometimes (too often I might add) confronted with a situation in which it is obvious that one party has no business with custody of the child, and that the child would be far better off with the other party. The problem is that the case is sloppily tried, points are not made in the record, evidence is not introduced, and the chancellor is left with having to do what he or she fervently believes to be in the best interest of the child without an adequate supporting record. The usual result is a remand, or, in some cases a rendered reversal.

If you don’t want to snatch defeat from the jaws of victory, put on as strong a case of unfitness as you can muster. Put on proof of circumstances that are strong enough to rise to the level of abandonment. Make as strong a case as you can. If you leave the judge without much to hang his decision on, it may end up that your client is the unhappy one.

COMING TO GRIPS WITH McDONALD

June 20, 2011 § 7 Comments

I don’t think it’s an overstatement that the Mississippi Supreme Court’s decision in McDonald v. McDonald, 39 So.3d 868 (Miss. 2010), set chancery court practice vis a vis guardians ad litem (GAL) on its proverbial ear. And it’s not so much what McDonald held as what it hinted at.

Before McDonald, it was common practice to allow a GAL to investigate, file a report, and testify to the results and findings of the investigation, including hearsay, and make a recommendation. After all, most of what a GAL unearths is based on hearsay: the GAL interviews the children, neighbors, school teachers, parents, relatives, and reviews medical records and school records. In my experience most chancellors allowed the GAL to testify to the facts disclosed in the investigation, and I don’t recall anyone ever objecting to the hearsay. Most lawyers used the GAL’s report as a guide for what evidence would prove or disprove the case. It was a good system that allowed a qualified person as an arm of the court to look behind the positions of the warring parties and to pierce the veil of partisanship. I have observed on more than one occasion in contested child custody cases that the momma and dady are each zealously pursuing their own positions, but no one is looking out for the best interest of the children. The GAL’s role as arm of the court was a perfect complement to the chancellor’s role as superior guardian of the children. Frankly, it worked pretty well when a well-qualified and diligent GAL was involved. When the GAL proved to be less than diligent, the chancellor was free to discount or even disregard the findings and recommendations.

Enter McDonald. In that case, the mother in a child custody modification case objected to the GAL’s oral testimony, ” … stating that if the teachers and others being quoted by the GAL had something to report, they should have been required to be there. The court responded that
GALs are allowed by “historical practice” to offer hearsay testimony, and overruled the objection. ” McDonald at 884.

The Supreme Court disagreed and pointed out without expressly holding that a GAL’s oral hearsay testimony should be excluded. Justice Dickinson’s specially concurring opinion was even more blunt when he stated that MRE 1 expressly states that the evidentiary rules do apply in chancery court. End of dicussion for him.

The court did not extend its hearsay proscription to GAL written reports, however. The following language, beginning on page 882, is instructive:

“Jennifer argues that the GAL exceeded the proper role of a GAL by offering hearsay testimony, as well as taking ‘on a role as a litigant/expert’ by providing a written report to the court, making recommendations, discussing the views of the court-appointed counselor, filing a motion, testifying, examining witnesses, and meeting ex-parte with the chancellor. Other than offering hearsay testimony as discussed below, the GAL was simply following the provisions of the GAL statute and the pronouncements of this Court. This Court dealt recently with a similar issue in S.G. v. D.C., 13 So.3d 269 (Miss.2009), an opinion handed down after the briefs were filed in this appeal. The S.G. Court stated the following regarding the proper role of a GAL:

[A] guardian ad litem appointed to investigate and report to the court is obligated to investigate the allegations before the court, process the information found, report all material information to the court, and (if requested) make a recommendation. However, the guardian ad litem should make recommendations only after providing the court with all material information which weighs on the issue to be decided by the court, including information which does not support the recommendation. The court must be provided all material information the guardian ad litem reviewed in order to make the recommendation. Recommendations of a guardian ad litem must never substitute for the duty of a chancellor. Id. at 282.

The GAL in the case sub judice did not offer the type of testimony criticized in S.G. See id. at 274 n. 5. This GAL reported on matters required by her appointment, and consistent with a GAL’s duties as outlined in S.G. Id. at 282.

The statute’s provision that a GAL “shall have the duty to protect the interest of a child for whom he [or she] has been appointed guardian ad litem. The guardian ad litem shall investigate, make recommendations to the court or enter reports as necessary to hold paramount the child’s best interest,” is consistent with the traditional roles required of a GAL, which predate the enactment of the statutes. Miss.Code Ann. § 43-21-121(3) (Rev.2009). In In the Interest of D.K.L., 652 So.2d 184 (Miss.1995), this Court held that a GAL had failed in his duties by simply deferring to a therapist’s recommendations, and not submitting his own recommendation as to the best interests of a child. Id. at 188. The D.K.L. Court stated that the GAL ‘did not have an option to perform or not perform, rather he had an affirmative duty to zealously represent the child’s best interest.’ Id. In In the Interest of R.D., 658 So.2d 1378 (Miss.1995), this Court held that “children are best served by the presence of a vigorous advocate free to investigate, consult with [the children] at length, marshal evidence, and to subpoena and cross-examine witnesses.” Id. at 1383 (quoting Shainwald v. Shainwald, 302 S.C. 453, 395 S.E.2d 441, 444 (S.C.Ct.App.1990)). See also M.J.S.H.S. v. Yalobusha County Dep’t of Human Serv. ex rel. McDaniel, 782 So.2d 737, 740-42 (Miss.2001)(GAL failed in his duty by relying on DHS records and the recommendations of a therapist and social worker). In D.J.L. v. Bolivar County Department of Human Services ex rel. McDaniel, 824 So.2d 617 (Miss.2002), this Court found no error in a GAL’s cross-examination of witnesses. Id. at 622. The Court also ’emphatically proclaim[ed] to the bench and bar that … the guardian must submit a written report to the court during the hearing, or testify and thereby become available for cross-examination by the natural parent.’ Id. at 623. Therefore, the GAL would have been derelict in her duty to zealously represent the boys’ best interests if she had failed to interview the boys, consider the opinions of experts, marshal evidence, make an independent recommendation, question witnesses, submit reports, and make herself available for cross-examination.

The chancellor did not allow the GAL to usurp his role as the “ultimate finder of fact.” Id. The chancellor heard all witnesses, read all the
reports, and made his own decision based upon independent findings of fact. Thus, we find this portion of Jennifer’s argument to be without merit.”

Footnote 7 on page 884 states:

“Hearsay testimony should not to be confused with a GAL’s written reports, which sometimes, by their very nature, will include statements, which, if offered into evidence at trial to prove the truth of the matter asserted, would be inadmissible hearsay, unless they qualify under one of the exceptions to the rule against hearsay. Any such inadmissible hearsay, however, would not require exclusion of the entire report. This issue is not before the Court this day.”

I have heard reactions to McDonald that just about cover the ball park. One chancellor has said that he and the other judge in his district no longer appoint GAL’s unless they are required by statute because they feel that McDonald has rendered the GAL role ineffective and superfluous. I have heard chancellors confess that they don’t have any idea where to go post McDonald when it comes to GAL’s. And GAL’s have come to me and said they are now quite confused as to what they can and can not do.

The GAL system is far too valuable to chancery court to be relegated to the trash heap. At least for the time being, chancery court maintains its historical distinction from circuit in that the chancellor has a high duty to act in the best interest of a child, and to have a greater role at trial than to be a mere referee blowing the whistle and throwing penalty flags for hearsay transgressions; the chancellor’s duty is to ensure that the best interest of a child is protected, even when the parties themselves do not do so. The GAL has for many years given the chancellor a practical, effective way to meet his or her responsibility.

So how do we reconcile McDonald with the traditional role of the GAL? I think it comes down to the following for the party who will make positive use of the GAL recommendations:

Plan to qualify and tender the GAL as an expert. Ask the court at the outset of trial for leave to allow the GAL to remain in the court room in her role as an expert, if the rule is invoked.
Call every witness identified in the GAL report to establish the substantive facts that support the GAL’s recommendations, and, of course any other witnesses you feel that you need to call.
Finally, call the GAL as an expert witness and offer her report into evidence. She should qualify as an expert because of her legal training and experience, plus the fact that every GAL now must undergo special training and maintain certification. And as for her testimony, remember that, under MRE 703, “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” Moreover, with all of the factual evidence already in the record, the GAL is free to comment on it.

But, you say, this will result in more cumbersome, longer and more expensive trials in custody actions with GAL’s. You are certainly right, but that is what the supreme court is directing us to do.

My understanding is that the GAL in McDonald was qualified as an expert. The opinion in McDonald did not explain why Rule 703 was not an adequate basis for her hearsay testimony that ” … need not be admissible in evidence.” So until the MSSC takes another shot at the issue, I interpret McDonald to mean that the GAL may include hearsay in his report, and may testify to it NOT to establish the truth of the matter asserted, but to establish the basis for his recommendations. In other words, you will have to call the witnesses and have them testify, and put the documents, photos and records in via competent testimony if you want or need those facts to be established in the record.

For now that is the way I will approach McDonald.

SOME RANDOM THOUGHTS ON VISITATION

June 7, 2011 § Leave a comment

The visitation awarded to the non-custodial parent should be such as will foster a positive and harmonious relationship between parent and child. Wood v. Wood, 579 So.2d 1271, 1273 (Miss. 1991).
The chancellor has broad discretion in fashioning visitation, keeping in mind the best interest of the child, the rights of the non-custodial parent, and the need to maintain a healthy, loving relationship between the non-custodial parent and the child. Harrington v. Harrington, 648 So.2d 543, 545 (Miss. 1994).
The chancellor should specify the terms for visitation. Lauro v. Lauro, 924 So.2d 584, 591 (Miss. 2006). The visitation rights should be defined and fixed so as to avoid chaos. Brown v. Gillespie, 465 So.2d 1046, 1049 (Miss. 1985).
Overnight visitation is the rule, not the exception. Cox v. Moulds, 490 So.2d 866, 870 (Miss. 1986). The non-custodial parent is presumptively entitled during reasonable times to overnight visitation with the child. Harrington at 545.
The chancellor may place restrictions on visitation in circumstances where there is “an appreciable danger of hazard cognizble in our law.” Newsom v. Newsom, 557 So.2d 511, 517 (Miss. 1990). Any restriction must be shown to be necessary to avoid harm to the child. Dunn v. Dunn, 609 So.2d 1277, 1286 (Miss. 1992); Harrington, at 545; and Howell v. Turnage (Miss. App. 2011), at ¶ 16. A post discussing Howell v. Turnage is here.
In order to modify visitation, all that needs to be shown is that the prior order for visitation is not working, and that modification is in the best interest of the children. Suess v. Suess, 718 So.2d 1126, 1130 (Miss. App. 1998).

Where Am I?