Child Custody | The Better Chancery Practice Blog

A FEW RANDOM THOUGHTS ABOUT JOINT CUSTODY

January 21, 2011 § 3 Comments

An award of joint legal custody was reversed where the reason assigned by the trial judge was to allow the mother to participate in and keep up with the children’s activities. Joint legal custody requires the parties to confer in the joint decision-making about decisions affecting the children’s lives. Concern for access to information does not warrant award of joint legal custody. Lowrey v. Lowrey, 25 So.3d 274, 296 (Miss. 2009).
The trial court is not required to consider the Albright factors in determining whether to award joint legal custody, since they apply only to physical custody. Palculict v. Palculict, 22 So.3d 293, 297 (Miss. App. 2009).
MCA § 93-5-24(2) provides that the trial court in an irreconcilable differences divorce may award joint custody only “upon application of both parents,” but in all other cases the court may award joint custody “upon application of one (1) or both parents.” But where the parties have consented to an irreconcilable differences divorce and agreed for the trial court to adjudicate custody, the chancellor may award joint custody. Crider v. Crider, 904 So.2d 142, 148 (Miss. 2005).
“There are … significant legal consequences attached to each form of custody. If parents accustomed to joint decision-making disagree, the parent with sole legal custody has authority to make unilateral decisions regarding the child. A move by one of two joint custodians triggers an Albright analysis to determine which parent should take sole physical custody. In contrast, when a parent with sole custody relocates, the relocation is not in itself a reason to modify custody.” Bell, Mississippi Family Law, § 5.04[4].
Joint custdy is inappropriate where the parties are unable to communicate and cooperate. Lewis v. Lewis, 974 So.2d 265, 266 (Miss. App. 2008).

FINAL DECISION-MAKING AUTHORITY IN JOINT LEGAL CUSTODY

January 6, 2011 § 3 Comments

MCA § 93-5-24 provides that the joint legal custodians shall “share the decison-making rights, the responsibilities and the authority relating to the health, education and welfare of a child,” and “An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with each other in the exercise of the decision-making rights, responsibilities and authority.”

The problem is that the statute does not delineate exactly how final decisions will be made after the conferring is done. Common sense tells us that there can not be a committee of two. What if, for instance, the father demands that the child attend military school in Chattanooga, but the mother is just as adamant that the child attend Lamar in Meridian? Or how about if one parent believes that the child should have botox injections for cosmetic reasons and the other is opposed? Or one parent takes the position that the child should take ADHD medication, and the other is opposed to medication? Or one wants the child to have the usual childhood immunizations and the other does not out of fear of autism. The statute does not inform us how those ties or any others, some involving important decisions about the children, will be broken.

In this district, both chancellors take the position that joint legal custody is not in the best interest of the child and will not be approved unless there is some form of a tie-breaker provision.

Some lawyers try to skirt the problem by providing in a PSA that the parent with physical custody at the time will have final decision-making authority. This approach does not work, however, because the effect of life-affecting decisions like those enumerated above carry over into the other parent’s custodial time in shared physical custody arrangements.

Most PSA’s address the issue by providing that one parent or the other will have final decision-making, or tie-breaking, authority. That still means that both parents must confer, consult and participate in the decision-making process as required by the statute. Although the physical custodian is the most logical tie-breaker, I had a case once where the mother had sole physical custody and the parents shared joint legal custody of a paraplegic child. They agreed that the father would have final decision-making authority because he would continue to be responsible to transport the child to and from school, to and from all of his activities and family and church events, and to and from Birmingham for numerous and frequent medical visits.

It is okay to allocate responsibility between the parents, as, for instance, where the father is going to pay for private school, and the parties agree that he will have final decision-making authority as to the child’s education, with the mother to make final decisons as to the health and welfare. In such a case, it would be wise to define exactly what the scope of authority would be as to education, since the three realms of decison-making overlap somewhat. For instance: “Father shall have the final decision-making authority as to which school the child will attend in Lauderdale County so long as both parties reside therein; all other decisions will be finally decided by the mother.”

In cases where one parent is the sole physical custodian, the case of Clements v Young, 481 So.2d 263, 266 (Miss. 1985), offers a little help and guidance. In that case, the Mississippi Supreme Court stated:

“Our law necessarily provides that the award of custody to a parent incident to a separation or divorce vests in the custodial parent the right to make, and responsibility for making, day to day decisions regarding the care and welfare of the children. Except as otherwise agreed by the parties in writing, the custodial parent may determine the child’s upbringing, including his education and health and dental care. Such discretion is inherent in custody. It is vested in the custodial spouse though not spelled out in detail in a separation agreement or custody decree.”

Clements does not address what happens where the parties “otherwise agree in writing,” as where they agree to joint legal custody with one to have sole custody. Have they “otherwise agreed” that the sole physical custodian will no longer have final decision authority, or is it presumed that the physical custodian will have it? Clements involved other issues and so is distinguishable on its facts. In my opinion, the best practice where one parent is the physical custodian and they share joint legal custody is simply to name the final decision-maker in the PSA.

An important reminder: I posted before about the danger of relying on the term “primary physical custody.” Designation of one parent as “primary” physical or legal custodian has no legal meaning whatsoever, and will not impart decision-making authority.

THE LATEST ON CUSTODY OF OUT-OF-WEDLOCK CHILDREN

December 17, 2010 § Leave a comment

In the case of Reed and Daniels v. Fair, decided December 14, 2010, the court of appeals once again addressed the issue of the proper legal standard to apply when the unmarried parents of a child born out of wedlock face off over custody of the child.

Theresa Reed and Marvin Fair had a relationship that resulted in the birth of their son, M.T.F, in 1997. The parents never married each other, but Fair did acknowledge paternity. For most of the next twelve years, the child lived with his maternal grandmother, Irene Daniels. While in the grandmother’s care, M.T.F. was molested by another grandson.

Fair filed an action for custody, and Reed and Daniels counterclaimed in turn for custody. At trial, Reed and Daniels argued that, because of the length of time that M.T.F. was in Daniels’ care, the court should apply a modification standard. The chancellor found that, since there had never been a judgment awarding custody, it was not proper to apply a modification standard, and he adjudicated the case by application of the Albright factors. The chancellor awarded custody to Fair, and both Reed and Daniels appealed, complaining that the court should have analyzed the case as one for modification.

Justice Maxwell wrote the majority opinion, and it is such a concise exposition of the law on the subject that I have excerpted it here:

Generally, in an initial custody proceeding, the parties are “deemed on equal footing,” and custody is awarded based on the best interest of the child under the Albright factors. See Brown v. Crum, 30 So. 3d 1254, 1258 (Miss. App. 2010) (quoting Law v. Page, 618 So. 2d 96, 101 (Miss. 1993)).

But there are situations where certain legal presumptions prevent the parties from having an equal claim to custody. For example, the father of a child born out of wedlock would not stand on equal footing with the mother where the father does not acknowledge the child as his own. Hemphill-Weathers v. Farrish, 779 So. 2d 167, 172 (Miss. App. 2001). Absent other factors, all jurisdictions recognize that the mother of a child born out of wedlock, if a suitable person, possesses the primary right to the child’s custody where the father has not acknowledged the child. Smith v. Watson, 425 So. 2d 1030, 1033 (Miss. 1983), at 1033 (citing N. Hand, Jr., Mississippi Divorce, Alimony and Child Custody 271 (1981) (“upon acknowledging the child as his own, the father has an equal claim . . . to the parental and custodial rights of the child”).

While chancellors must also consider the Albright factors in modification proceedings, “the movant carries a heavier burden[.]” Romans v. Fulgham, 939 So. 2d 849, 852 (Miss. App. 2006). In a modification action, the party seeking custody must prove that since the original custody award, there has been a material change in circumstances adverse to the child, and a modification in custody would be in the child’s best interest. Tucker v. Tucker, 453 So. 2d 1294, 1297 (Miss. 1984).

In Law, the Mississippi supreme court held that “The ‘material changes’ standard used in modification proceedings is dependent on there being a prior determination of custody.” 618 So. 2d at 101. Relying on Law, the court of appeals has consistently held that where no previous custody determination has been made, the relevant standard is the child’s best interest under the Albright factors — not a “material change” modification standard. See Brown, 30 So. 3d 5 at 1258; , 990 So. 2d 774, 776 (Miss. App. 2008); Romans, 939 So. 2d at 853; C.W.L. v. R.A., 919 So. 2d 267, 271 (Miss. App. 2005); S.B. v. L.W., 793 So. 2d 656, 659 (Miss. App. 2001).

The court of appeals also rejected the theory that a modification standard applies by virtue of one parent’s receipt of child-support payments. Brown, 30 So. 3d at 1257-58; Romans, 939 So. 2d at 852.

The majority opinion rejected the appellants’ argument that because Fair had waited longer than parties in other court of appeals decisions to seek custody, that this case should be distinguished from the earlier decisions. The court refused to establish a “length of time” rule because (1) the resulting legal standard would likely be nebulous, and (2) no case law, including Mississippi supreme court precedent, supports hinging the applicable legal standard solely on the timeliness of the request for custody. See Romans, 939 So. 2d at 853. The majority declined to create a new rule or to overturn the established line of authority. Nonetheless, the opinion emphasized that its holding in no way prevents chancellors from considering the length of a parent’s delay in asserting a claim for custody when determining the best interest of the child. See Brown, 30 So. 3d at 1259 (“Although delay in asserting custody may be a factor to be considered in determining the best interest of the child, it is not the controlling factor.”).

So the state of the law at this point is that a father who acknowledged an out-of-wedlock child as his own stands on an equal footing with the natural mother in a custody determination, which will be treated as an original proceeding, and not as a modification.

A CHECKLIST OF CHECKLISTS

December 15, 2010 § Leave a comment

Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist.

Here are the checklists I’ve posted (you can click on the links to get to them):

Attorney’s fees.

Adverse possession.

Child custody.

Grandparent visitation.

Equitable distribution.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

Income tax dependency exemption.

Those are all of the checklists of which I am aware. If you know of others, please let me know and I will add them to the list.

I also posted a checklist for closing an estate, but it’s a procedural cheklist rather than a substantive checklist.

“YOU MAKE ME ASHAMED TO BE A HUMAN BEING”

December 6, 2010 § 1 Comment

Any lawyer who practices family law for any length of time learns quickly that some clients can be scarily delusional, or nearly so, and that managing their expectations can be an impossible task.

Here is an animated video of a lawyer-client interview about child custody that will have you family lawyers in tears — either from laughing hysterically or from regretfully recognizing yourself and/or a client in the exchange.

WARNING: This video includes some pretty rough language, and is not safe for work or appropriate for children.

Thanks to attorney Rhae R. Darsey and Municipal Judge Robert D. Jones for this.

MORE ON FAMILY VIOLENCE AND CUSTODY

December 2, 2010 § 2 Comments

The court of appeals on November 30, 2010, upheld a chancellor’s decision that the statutory presumption against awarding custody to a party who has a history of family violence did not apply in the facts of the case. I previously posted about the presumption and its effect on custody here.

In Brumfield v. Brumfield, which was before the chancellor on remand for specific findings on the Albright factors, there was evidence that the husband, Alex, who was awarded custody, had argued with his wife Heather, grabbed her, dragged her outside, threw her to the ground and hit her twice with a belt. The parties reconciled after the event, although they later separated again. The chancellor found the episode to be “isolated,” and insufficient to trigger the presumption. A majority of the court of appeals, by Justice Myers, agreed with the chancellor’s finding that the record established only the single incident of domestic violence.

Justice Carlton, in a written dissent, reached deep into the record and found a document purporting to be a “sentencing order” from the Walthall County Justice Court on a charge of stalking and telephone harassment brought against Alex by an unnamed person. The document stated that the charges had been remanded to the file. Justice Carlton took the position that the document supported a finding of a pattern of family violence, even though the document did not appear to have been introduced into evidence, and there was no authentication. The majority opinion pointed out that Heather had never mentioned the charge in her testimony at trial, in her arguments before the chancellor, or in her briefs filed with the court of appeals. Apparently the chancellor had found the document either inadequately authenticated, or too vague with respect to its victim, or otherwise lacking probative weight. It has long been the law in Mississippi that, in the absence of specific findings, it is presumed that the chancellor resolved fact issues in the appellee’s favor. McNeil v. McNeil, 607 So.2d 1192, 1193 (Miss. 1992).

There are two refreshing aspects of the majority opinion: One is the finding that Chancellor Debbra Halford acted properly in considering the belt-hitting incident in the context of her consideration of the Albright factors, rather than reaching outside the evidence to make a finding for the presumption; and Two that the majority deferred to the chancellor’s judgment and discretion, based as it was on her observation of the demeanor and credibility of the witnesses.

As a lawyer, you need to plan your case either to meet the presumption or to persuade the chancellor to find that it applies. You don’t want to get blind-sided by the presumption if it is against your client, and you don’t want your proof to fall short if the presumption is in your client’s favor. In the Brumfield case, might the outcome have been different if Heather’s lawyer had put more emphasis on proof supporting the presumption? Remember, chancellors have to base their decisions on what is in the record, and it is your job to make that record.

FAMILY VIOLENCE AND ITS IMPACT ON CUSTODY

November 22, 2010 § 3 Comments

MCA § 93-5-24(9)(a)(i) sets out some important language that you need to be aware of the next time you are involved in a child custody dispute. It reads in part:

“In every proceeding where the custody of the child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered.”

A preponderance of the evidence is required to overcome the presumption. In making a determination whether the presumption is rebutted, the court is required to consider all of the following:

Whether it would be in the child’s best interest to award the perpetrator custody because of the other parent’s absence, mental illness, substance abuse or other circumstances that affect the best interest of the child;
Whether the perpetrator has successfully completed a “batterer’s treatment program;”
Whether the perpetrator has successfully completed an alcohol or drug abuse counselling program if deemed appropriate by the court;
Whether the perpetrator has successfully completed a parenting class if deemed appropriate by the court;
Whether the perpetrator has been placed on probation or parole, and whether he or she is subject to a restraining order, and his or her compliance with its terms; and
Whether the perpetrator has committed any further acts of domestic violence.

If both parents have committed family violence, the court may award custody to a third party or to the parent whom the court finds to be less likely to continue to perpetrate family violence, and the court may order the custodial parent to complete a “treatment program.”

The court may not require a victim of domestic or family violence to attend counselling, individually or with the perpetrator, as a condition of custody.

In J.P. v. S.V.B., 987 So.2d 975 (Miss. 2008), the court upheld a finding of family violence where a father slapped his daughter several times and made her nose bleed.

In Lawrence v. Lawrence, 956 So.2d 251 (Miss. App. 2006), the court of appeals remanded a child custody adjudication where the record established that the father had a history of violence. The court directed the chancellor to apply and comply with the statute.

In C.W.L. v. R.A., 919 So.2d 267 (Miss. App. 2005), the court upheld a chancellor’s finding that the statute was inapplicable where the proof showed a few incidents of yelling and screaming, slapping and one episode of choking, but no serious or even moderate injuries.

Interestingly, MCA § 93-5-24(4) provides that “There shall be a presumption that joint custody is in the best interest of a minor child where both parents have agreed to an award of joint custody.” Does this mean that the parents can cancel the family violence presumption by agreeing to a joint custody arrangement? I don’t find any case law on the point.

As a practice matter, you need to know up front whether your client will be vulnerable to the presumption. Has he had a conviction for domestic violence? Has he been put under a County Court TRO? Has he been convicted of assault on a family member? Has there been Youth Court or DHS involvement? Has he gotten carried away in his discipline of the children or in an argument with his wife?

If you detect problems early enough, you can take proactive measures to get your client counselling or anger management classes or some form of treatment that will give the chancellor a reasonable basis to make a finding that your client has rebutted the presumption.

TRIAL BY CHECKLIST: INCOME TAX DEPENDENCY EXEMPTION

October 11, 2010 § 9 Comments

A practice tip about trial factors is here.

The Mississippi Supreme Court ruled in Nichols v. Tedder, 547 So.2d 766, 775 (Miss. 1989), that the Chancellor may award the dependency exemption for income tax purposes to either parent as part of its determination of child support.

If your client wants the court to award her the tax dependency exemption, it will take more than just asking her what she wants the court to do. In Louk v. Louk, 761 So.2d 878, 884 (Miss. 2000), the Mississippi Supreme Court laid out the factors that the Chancellor is required to consider before making the award. They are:

The value of the exemption at the marginal rate of each parent;
The income of each parent;
The age of the children and how long the exemption will be available;
The percentage of the cost of supporting the children borne by each parent; and
The financial burden assumed by each parent under the property settlement agreement in the case.

In Laird v. Blackburn, 788 So.2d 844, 852 (Miss. App. 2001), the Court of Appeals added a sixth: the value of the non-economic but valuable contributions made by the custodial parent.

Although I have often heard parties testify that they wanted the court to award them the exemption, I have never heard any testimony on factor 1.

It seems to me that if you fail to put on the requisite proof, you run the risk that the judge will simply say that the proof did not support such an award, or, if the trial judge does award it, that the Court of Appeals will take it away or put your client to the considerable expense of having to retry the issue so that the trial judge will have the evidence necessary to adjudicate it.

BETTER CHANCERY PRACTICE FAQ

October 8, 2010 § 2 Comments

My 8.05 financial statements stink. How can I improve them?

Here are Ten Tips for More Effective Rule 8.05 Financial Statements.

Is my estate ready to close?

Check out this Checklist for Closing an Estate.

I think I need to file a habeas action. Any tips?

This Habeas Corpus Step by Step should help.

One more time: what are those child custody factors I need to prove at an upcoming trial?

The Albright factors are what you’re looking for.

Help! We need to sell some real property in an estate, and I don’t know where to start?

How to Sell Real Property in an Estate may be just what you need.

I’ve been asked to handle a minor’s settlement for a Jackson firm, and I’ve never done it before. What do I need to do?

This Outline for Handling a Minor’s Settlement will get you started.

My mail has an MRCP 41(d) notice in it this morning. I remember you said something about it, but I don’t have time to look for it. Can you remind me what I am supposed to do?

<Sigh> Here’s a post on what to do When Rule 41(d) Comes Knocking at Your Door.

I need to prove the tax effects of alimony, but my client can’t afford to hire a CPA to come testify. Any ideas on what I should do?

Try looking at Proving Tax Effects of Alimony.

My Chancery Judge is really nitpicky. How can I draft my adoption Complaint to satisfy him?

Are you talking about me? Whatever. Here is a post on pleading Jurisdiction for Adoption.

Every time I go to court in Jackson, the lawyers there snicker about my countryfied attire. Any suggestions? I cannot afford another $100 contempt citation for punching out a lawyer in the courtroom.

You probably need to be charging more so that you can afford either a better wardrobe or more contempt fines. Until you do, try reading “High Waters” and Burlap Suits. It won’t change anything, but it may help you to feel better.

Where Am I?