The Better Chancery Practice Blog

A serious act or history of family violence has an impact on the adjudication of custody, and even visitation. It’s a subject I’ve posted about here,  here and here.

The matter is addressed in MCA 93-5-24(9)(a)(i), which establishes a rebuttable presumption regarding family violence: ” … 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 statute does not explicitly define the term “family violence,” but it does refer to violence against ” … the party making the allegation or a family household member of either party.”

The statute goes on to say that the court may find a history if it finds either (a) one incident of family violence that resulted in serious bodily injury, or (b) a pattern of family violence. The finding is by a preponderance of the evidence.

In the COA case of Rolison v. Rolison, decided December 11, 2012, Alisa Rolison argued that the chancellor had refused and failed to apply the presumption against her ex-husband Gary in a case where there was proof in the record of what she considered to have been family violence. Judge Fair, for the majority, stated the court’s ruling:

¶6. The statute requires that if a chancellor finds a history of perpetrating family violence, the rebuttable presumption is triggered. The chancellor must then consider six factors to determine whether or not the presumption has been rebutted and make “written findings” to document his consideration. Miss. Code Ann. § 93-5-24.

¶7. The Mississippi Supreme Court has one published decision addressing this presumption, J.P. v. S.V.B., 987 So. 2d 975 (Miss. 2008). In J.P., the chancellor removed a child from his parents’ custody because the father had a history of perpetrating domestic violence, and the mother continued to reside with him. Id. at 980 (¶¶11-12). The supreme court upheld awarding custody to the maternal grandparents explaining [Fn 1]:

The applicable statute [§ 93-5-24] clearly required the chancellor to consider all of the above-listed factors in ascertaining whether the rebuttable presumption has been overcome, and the chancellor “shall make written findings to document how and why the presumption was or was not rebutted.” That being said, a chancellor in these cases must specifically address each factor, failing which reversible error may quite likely result. However, from the record before us in today’s case, we can safely say that while the chancellor did not specifically refer in writing to all the factors enumerated in her judgment, she no doubt considered those factors in making the custody determination. The chancellor made sufficient, specific findings to support her conclusion that the [parents] did not provide evidence to rebut the presumption outlined in Section 93-5-24(9)(a)(iii) and (iv). Since these findings were supported by substantial evidence in the record, we are duty-bound not to reverse on this issue. J.P., 987 So. 2d at 981-82 (¶16). [Fn1]

[Fn1] This Court [the COA] rendered a similar decision in Lawrence v. Lawrence, 956 So. 2d 251, 260-61 (¶¶33-35) (Miss. Ct. App. 2006), two years earlier and has since discussed the statute four times, most recently in Thompson v. Hutchinson, 84 So. 3d 840, 844 (¶¶15-19) (Miss. Ct. App. 2012).

¶8. Alisa contends the chancellor should have found that Gary had a history of family violence. Then, if the chancellor still intended to award Gary custody, he should have made written findings explaining why the presumption “was or was not rebutted.” Miss. Code Ann. § 93-5-24.

¶9. The record contains evidence of both parents’ actions that could be construed as perpetrating family violence. The chancellor found that at times, Gary was aggressive with the children and had a foul mouth. Alisa asserted that Gary once beat her with a “stacking stick” when she let a cow escape and that Gary spanked the children until they were bruised. Gary admitted that he disciplined his children corporally until the chancellor prohibited him from doing so during the pendency of this proceeding.

¶10. There is also evidence of Alisa’s perpetrating family violence. Alisa has bipolar disorder, borderline personalty disorder, and ADHD. She is taking medication and receiving treatment but has shoplifted at numerous stores and blamed her behavior on her medication. Alisa admitted being aggressive with the children. After a fight with one child, Alisa had to have an operation due to a spleen injury.

¶11. Both parents admitted to behaving aggressively with the children, but the only evidence of any serious injury was inflicted on Alisa by one of the children. We find that the chancellor did not abuse his discretion in refusing to apply the statutory presumption against Gary or Alisa. See Thompson v. Hutchinson, 84 So. 3d 840, 844 (¶¶15-19) (Miss. Ct. App. 2012).

In Rolison, the facts as to Gary’s violence simply did not rise to the level that would put the presumption into effect. If there were any serious episode, it was by one of the children against Alisa, requiring her to have surgery.

It’s hard to read the cases and come away with a clear picture of exactly what it is that constitues a “history” of “family violence.” Those are terms of art, but the definitions seem to be a moving target, based on the facts in the case. Sort of like US Supreme Court Justice Potter Stewart’s “I know it when I see it” definition of obscenity.

The main point to bear in mind is that, as you develop your child custody case, determine whether there are facts that might bring the statute into play. If so, peruse the statute and see whether and how it can help you prevail. Or, if you are on the downhill side of the case, look at the 6 factors the court has to consider to overcome the presumption and see how you can turn them to your advantage.