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 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 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.
February 2, 2012 § Leave a comment
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.
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).
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.
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.
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.
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).
June 6, 2011 § Leave a comment
In the COA case of Wells v. Smith, decided May 31, 2011, the appellate court was again confronted with a painful reality that chancellors are seeing more and more frequently: the situation where a child is raised by the grandparents because one or both of the natural parents has chosen to be absent from the child’s life, and the natural parent awakens one day to assert his or her parental rights.
In this most recent case, Tara Wells had given birth to a son, Jason, out of wedlock in 2003. Robert Johnson was Jason’s natural father. Tara and Jason lived with her mother, Sarah Smith, and her husband, William, for a time after the birth while she attended college. Tara’s college education spanned three years, and her time spent with Jason tapered off the longer she was in school. In April, 2006, Tara and Robert were married, and they moved to Washington, DC, where Robert was stationed with the military. Tara took Jason with her to live in DC, but returned him to live with the Smiths a short time later. After three months of marriage, Tara and Robert separated. Tara stayed in the DC area and Jason split time between there and Mississippi until November, 2006, when he returned to Mississippi for good.
In May, 2007, Tara signed over medical guardianship of Jason to the Smiths. Tara’s contact with Jason grew less and less. She allowed Jason to live with the Smiths, never asking to take him to live with her. In the meantime, Robert Johnson had been incarcerated in Virginia. In June, 2008, the Smiths filed pleadings in Mississippi seeking permanent custody of Jason. On October 1, 2008, they filed a petition for adoption and termination of Tara’s and Robert’s parental rights.
In December, 2008, Tara began living with another man, Neil Baker, and they were engaged in March, 2009, despite the fact that Tara was still married to Robert Johnson. Tara and Neil moved to Arizona. She was financially dependent on Neil, and he had never met Jason.
Also in December, 2008, Robert Johnson joined in the Smiths’ pleading for custody and consented to their being granted custody; he also consented to and joined in the petition for adoption.
In April, 2009, the court appointed a GAL. The GAL report recommended that the child stay with the Smiths. The GAL report, as well as the weight of proof at trial, established that the Smiths were the only mother and father Jason had ever known, and that their home was the only home he had ever had.
The chancellor relied on the doctrine of in loco parentis, in part on the GAL’s recommendation, to overcome the natural parent presumption and to find, applying the Albright factors, that Jason’s best interest would best be served by staying with the Smiths rather than his mother.
On appeal, the court analogized the case to the recent supreme court decision in Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), in which the court reversed and remanded for the chancellor to determine whether the father had relinquished the natural-parent presumption for reasons other than forfeiture by agreeing to a temporary custody order. The supreme court did not want to extend Grant v. Martin, 757 So.2d 264, 266 (Miss. 2000), which held that a parent’s agreement to a guardianship or custody judgment in a third party does create a forfeiture of the natural-parent presumption, to temporary orders, and wanted the chancellor to evaluate the proof to determine whether there was some other basis upon which to proceed.
The Vaughn decision pointed out the case of In re Leverock, 23 So.3d 424 (Miss. 2009), in which the natural father was found to have deserted his child by avoiding his moral and legal duties and parental obligations for in excess of two years.
The COA said in Wells:
“Although Vaughn was a case where the chancery court improperly found relinquishment of the natural-parent presumption due to the signing of a temporary custody order, it is analogous to this case. Here, the chancellor improperly relied on the doctrine of in loco parentis to find that the natural-parent presumption had been relinquished. We have been able to find no precedent for using that doctrine to overcome the natural-parent presumption. However, given the similarity of the facts in this case to Leverock and Vaughn, this case should be remanded to the chancery court to determine whether Tara deserted Jason, thus relinquishing her right to the natural-parent presumption. On remand, the chancery court should consider Jason’s circumstances at the time of remand.” [Emphasis added]
As in Davis, then, the Wells court directed the chancellor to find a basis other than the one he originally asserted as a basis to accomplish the best interest of the child. In Wells, the rejected basis was in loco parentis. I would guess that the definition of desertion to be applied by the trial judge will be MCA § 93-15-103(3).
The bottom line is that if you’re still barking up the in loco parentis tree, you are barking up the wrong tree. It simply won’t form the basis to overcome the presumption in favor of the natural parent. You’ll have to find another way to go in these very difficult, gut-wrenching cases.