Custody as Punishment

October 20, 2014 § 3 Comments

The MSSC’s decision in Borden  v. Borden, handed down October 9, 2014, is a reminder of the principle that fault should not be used as a sanction in child custody awards.

You can read the decision for yourself. The upshot of it is that the chancellor found against the mother in a custody fight, based on her inappropriate conduct. The chancellor found against the mother on three Albright factors: parenting skills; moral fitness; and stable home environment. The evidence established that the woman had inappropriate extramarital contacts, none of which amounted to adultery. She posted sexually explicit Facebook communications, socialized with men at bars and even met one at a hotel (until interrupted by the man’s wife), and re-established contact with men with whom she had had previous adulterous relationships (her husband claimed).

The MSSC found that the chancellor correctly found her conduct weighed against her on the factor of moral fitness, but the court held that the chancellor erred in finding that the same behavior weighed against her on the factors of parenting skills and stability of home environment.

It’s clear that the high court felt that the chancellor in this particular case was using the denial of custody as punishment in this case, which is a well-established no-no.

What is not so clear is how this case seems to say that the same behavior or misbehavior can not sound in two, three, or more factors. For instance, if a father customarily left the young children alone at night to go out and make drug buys while the mother worked, does that not show that he: has poor parenting skills; is maintaining an unstable home environment; and is not morally fit? Or must the chancellor limit his finding to one of the above? That makes no sense.

I may be reading the case too narrowly, but I hope it does not signal a too-limited scope of inquiry in these cases. Too formulaic an approach does not serve the best interest of the children.


January 25, 2012 § 2 Comments

Neither party has asked for joint custody in their pleadings. They consent to a divorce and agree that the chancellor shall adjudicate custody. The husband testifies that he wants sole custody. The wife testifies that she wants either sole custody or joint custody.

Can the chancellor grant joint custody?

The answer is set out in Crider v. Crider, 904 So.2d 142, 148 (Miss. 2005), where the Mississippi Supreme Court stated:

We hold that when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of “joint application” in § 93-5-24(2). This is the only interpretation that conforms to the primary directive of § 93-5-24(1) that “custody shall be awarded as follows according to the best interests of the child.” It is the chancellor who must determine what is in the best interest of the child, and it is the chancellor who determines the level of commitment parents have to sharing joint custody.  

So the answer is yes, where the parties have consented to an irreconcilable differences divorce, the judge may grant joint custody regardless whether it was specifically spelled out as an option in adjudication of custody.

It would seem under Crider’s language that the parties may not limit the court’s determination of best interest — say, by a stipulation that joint custody shall not be awarded — any more than could the statute. But to my knowledge that issue has not been addressed by the appellate courts.

The trial court must still weigh whether the relationship between the parties is suitable for joint custody. After all, joint custody is inappropriate where the parties are unable to communicate and cooperate.  Lewis v. Lewis, 974 So.2d 265, 266 (Miss. App. 2008); Crider, at 147.

In Phillips v. Phillips, 45 So.3d 684, 695-96 (Miss. App. 2010), the COA upheld the chancellor’s award of joint custody, alternating a week at a time, despite a history of animosity and strained relatiosnhips. Citing Crider, the court said at ¶34 that “The chancellor is in the best position to evaluate the parties’ capabilities to cooperate.”     

In Watts v. Watts, decided by the COA on January 24, 2012, at ¶ 28, the court again affirmed the chancellor’s award of joint custody, and cited Crider. The parties had entered into a consent for divorce leaving the issue of custody for adjudication by the court. Echoing Crider, the COA held that it was up to the chancellor to evaluate the evidence and to decide whether the level of conflict between the parties made joint custody undesirable or unworkable. 

Another post with some ruminations about joint custody is here.


August 19, 2010 § Leave a comment

Section 93-5-34, MCA, which sets out certain custodial and visitation rights of parents who are called to active military duty, has been amended to add some new wrinkles.  It is one of several new laws that affect your Chancery practice, most of which went into effect July 1, 2010, and are listed here.

The amended statute now applies also to persons related by blood or marriage to a deployed military parent, and may include, step-parents, grandparents, aunts, uncles, adult siblings and others.

It adds the requirement that any order entered affecting custody of or visitation with a parent called to active duty shall require:

  • that the non-deployed parent shall make the child or children reasonably available to the deployed parent when he or she is on leave.   
  • that the non-deployed parent shall facilitate opportunities for telephonic, webcam and e-mail contact between the deployed parent and the child or children during deployment, and that
  • the deployed parent shall provide timely information regarding his or her leave schedule to the non-deployed parent.   


July 14, 2010 § 16 Comments

Habeas corpus is the ancient writ that extends ” … to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto …”  §11-43-1, MCA. 

In Chancery Court, habeas is most often used where one person is withholding custody of a child or a ward from the person who is legally entitled to custody.  This post will focus on Chancery cases involving deprivation of custody, and not on illegal detention by the state.

The procedures for habeas are purely statutory, and are specifically excepted from Rule 81, MRCP. 

The first step in obtaining the writ is to file a petition with the court.  The petition must be sworn, describing where and by whom the person is being detained, the facts and circumstances of the restraint, and the ground for the relief sought.  §11-43-9, MCA.  Venue is proper in the county where the person is being detained, not in the county where a prior judgment of custody was entered.  Logan v. Rankin, 230 Miss. 749, 94 So.2d 330 (Miss. 1957).   

Next, the petition is presented to the court.  Some judges require that the petitioner appear personally to testify in favor of granting the writ.  This judge will issue the writ without testimony of the petitioner if the petition is in proper form, is sworn, and includes each and every element required in §11-43-9, MCA.

If the Chancellor deems the petition adequate, he or she will sign an order directing the clerk to issue the writ.  The Chancellor may issue the writ also.  §11-43-15, MCA.

The usual form of the writ is as follows:

“THE STATE OF MISSISSIPPI, to:  _____________________

WE COMMAND YOU to have the body of ___________________, by you detained, as it is said, before __________, a judge of our _____________ Court, at _____________, forthwith (or on a given day), to do and receive what may be then and there considered concerning him.  Witness my hand, etc.”  §11-43-17, MCA.

The writ is served, and the return made, as with process, by any person whom the court may direct or by the sheriff or any constable.  §11-43-17, MCA.

The person upon whom the writ is served is required to have the person for whose benefit the writ is issued personally before the court at the appointed time.  §11-43-27, MCA.  The court may, however, order immediate apprehension of the person in whose behalf the writ is sought, if the court is satisfied from the sworn allegations or testimony that the person will be removed or concealed so as not to be produced with the writ.  The sheriff or designated person in such a case is directed to take the person into custody and to deliver the person to the court at the appointed place and time.  The statute sets out the required language for the writ in such cases.  §11-43-21, MCA.

The writ may be served on a Sunday in event of an emergency.  §11-43-21, MCA.

The writ is returnable forthwith, or on a particular day within a reasonable time.  §11-43-23, MCA.

§11-43-31, MCA, sets out penalties for disobedience of the writ.  The respondent who disobeys the writ may be ordered to pay the person for whose benefit the writ is issued a penalty of $1,000, and the disobedient party may be punished for contempt.  §11-43-31, MCA.

At the time set for return of the writ, unless the detaining party agrees to release the person detained, a hearing is held to which witnesses may be subpoenaed, and testimony and evidence is taken as at other trials, and the court may continue the case from day to day as the case may require.  §§ 11-43-33 and -39, MCA.  Interestingly, testimony of a witness may be offered by affidavit “whenever the personal attendance of a witness can not be procured,” provided that the affidavit is taken on reasonable notice to the other party.  §11-43-39, MCA.  The court may award “costs and charges, for or against either party, as may seem right.”  §11-43-33, MCA.   

The court may make temporary orders.  §11-43-35, MCA.

The court’s judgment is final, binding and appealable.  §§11-43-43, -53 and -55, MCA.  The habeas court does not have continuing jurisdiction to modify its award.  SeeMitchell v. Powell, 179 So.2d 811 (Miss. 1965).  The jurisdiction of the Chancery Court in a habeas proceeding is temporary in nature.  See, Pruitt v. Payne, no. 2008-CA-00172-COA (Miss. App. 2009). 

Habeas is not to be used as a mechanism to modify prior custody decrees.  Fulton v. Fulton, 218 So.2d 866, Miss. 1969).  In the case of Wade v. Lee, 471 So.2d 1213, 1217 (Miss. 1985), however, the Mississippi Supreme Court carved out an exception so that the petitioner or respondent may use a habeas hearing to obtain temporary custody if the custodial parent has abandoned the child or become “altogether unfit” to have custody.  In such a case, the court should set an expiration date for the temporary order in order to give the parties an opportunity to file appropriate pleadings for modification in the court having jurisdiction to entertain the case.    

An observation:  It is unfortunately frequent that attorneys come to a habeas hearing and try to present a modification case, with its evidence of material change, adverse effect and best interest.  The proper standard in a habeas hearing to achieve a temporary change in custody, however, is to produce proof that the custodial parent is “altogether unfit” or has abandoned the child, and proof that falls short of that standard will result in the child being returned to the custodial parent.  If the proof only supports a modification action, that is the procedure that should be used, and not a habeas proceeding.

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