The Presumption from Family Violence

September 30, 2015 § Leave a comment

MCA 93-5-24(9)(a)( i ) creates a rebuttable presumption that it is not in a child’s best interest to be placed in the custody of a parent who has a history of family violence (paraphrased). It’s a topic about which we have posted here before.

Larry and Deidre Hammonds both sought custody in a divorce case between them. Deidre was awarded temporary custody, but Larry filed for emergency custody and modification after Deidre and her 15-year-old daughter by another marriage, Courtney, were involved in a physical altercation that resulted in Deidre’s arrest for domestic violence. Larry’s and Deidre’s own daughter, Angelina, was not present at the time. The charges were later dropped. Courtney went to live with an aunt in N. Carolina, and Deidre filed a petition charging that Larry was wrongfully withholding Angelina’s custody from her. The chancellor ordered that the child be returned to her, finding no showing of immediate or irreparable harm. The court did, however, order that there be no contact between Angelina and Courtney unless supervised by Deidre.

The parties entered into a consent on all issues, including custody, and, following a trial, the judge awarded the parties joint legal custody. Deidre was awarded sole physical custody, and the restrictions as to Courtney were eliminated. Larry filed for rehearing per MRCP 59, but was overruled. Larry appealed on several issues, but we focus here on his claim that the chancellor erred by not giving proper consideration to the family violence.

In an opinion rendered September 15, 2015, in Hammonds v. Hammonds, the COA affirmed. Judge Barnes addressed the domestic violence issue for the court:

¶26. After the physical altercation between Deidre and Courtney, the chancellor had ordered that Courtney must be supervised by Deidre when interacting with Angelina. However, this restriction was rescinded in the court’s final judgment. Larry argues the chancellor “erroneously overlooked” this issue of family violence in awarding primary physical custody to Deidre. He cites Mississippi Code Annotated section 93-5-24(9)(a)(i) (Rev. 2013), which states there is 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.” This presumption “may be only be rebutted by a preponderance of the evidence,” and:

In determining whether the presumption set forth in subsection (9) has been overcome, the court shall consider all of the following factors:

1. Whether the perpetrator of family violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse or such other circumstances which affect the best interest of the child or children;

2. Whether the perpetrator has successfully completed a batterer’s treatment program;

3. Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;

4. Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;

5. If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and

6. Whether the perpetrator of domestic violence has committed any further acts of domestic violence.

Miss. Code Ann. § 93-5-24(9)(a)(ii) & (iii).

¶27. However, in the order denying Larry’s motion to alter the judgment, the chancellor explicitly addressed Larry’s claim and discussed the statute, stating:

The presumption [from the statute] comes into existence by showing either a pattern of family violence against a member of the household or a single incident of family violence that results in serious bodily injury. . . . [T]he Plaintiff’s own child, Courtney, was a behavioral problem in the household.

On one occasion[,] the Plaintiff and her child, Courtney, engaged in a dispute which resulted in physical aggression. Criminal charges were filed and later dismissed. There were also allegations regarding an altercation between the Defendant’s child and the Plaintiff. [Fn omitted ] No criminal charges were filed. The record is filled with testimony regarding each party yelling, cursing, hollering and screaming in the household and at the children.

. . . .

Despite the chaos, the Court finds that neither party has a history of perpetuating family violence on any household member and that neither has been responsible for an incident of family violence that has resulted in serious bodily injury.

In a similar case, C.W.L. v. R.A., 919 So. 2d 267, 271-72 (¶¶12-17) (Miss. Ct. App. 2005), we upheld a chancery court’s finding that this statute was inapplicable because there was no “pattern of family violence,” and the testimony of the parties at most “documented general yelling and screaming which, on a few occasions, resulted in slapping and perhaps one incident of choking[,] . . . and there w[ere] no serious or even moderate injuries resulting from the same.” Reviewing the evidence in the present case, we find no abuse of discretion in the chancellor’s findings.

There was no abuse of discretion because the chancellor applied the proper legal standard that there must be either a history or pattern of violence, or there must have been serious physical injury, neither of which were found to be present here. And the evidence supported the chancellor’s findings. Before you invest too much of your custody case on this presumption, make sure that your evidence establishes the prerequisite history and/or injury.


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.

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