September 28, 2010 § 5 Comments
We should all be familiar with the landmark case of Williams v. Williams, 843 So.2d 720 (Miss. 2003), in which the Mississippi Supreme Court held that it “refuse[s] to sanction the manifest injustice of forcing a man to support a child which science has proven not to be his.” In Williams, the father did not know until well after he was ordered to support the child that it was not his, and he had little contact with the child in the intervening years before he filed an action to terminate support. The Williams court, however, added this caveat:
“We do not hold that a man who is not a child’s biological father can be absolved of his support obligations in all cases. Those who have adopted a child or voluntarily and knowingly assumed the obligation of support will be required to continue doing so.” [Emphasis added]
Fast forward to 2009.
In the case of Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), the Court of Appeals considered the appeal of Gregory Lee, Sr.
Mr. Lee had performed a home DNA test and discovered that there was a zero probability that one of the chilren he thought he had fathered was biologically his. Soon after the unfortunate discovery, Mr. and Mrs. Lee filed a joint Complaint for Divorce. Notwithstanding the DNA test results, the complaint alleged that the child was their indeed child, and their property settlement agreement provided for Mrs. Lee to have custody and for Mr. Lee to pay her support.
Two years after the divorce, Mr. Lee filed a petititon to modify and asked for DNA testing, which confirmed the home-test result that he was not the child’s father.
The Chancellor refused the modification, holding that Mr. Lee had voluntarily undertaken the duty to support the child with full knowledge that the child was not his, and under Williams, he could not be relieved of the support duty that he had assumed voluntarily.
On appeal, Mr. Lee argued that he had not been 100% convinced by the home test that he was not the father, and it was only when he got the court-ordered DNA test results that he knew conclusively for the first time of his non-paternity. He also pointed out that the home test was not legally binding, while the court-ordered test was.
The appellate court brushed aside the argument because Mr. Lee’s own inartfully drawn petition to modify stated that he knew as a result of the DNA test that he was not the father, and the only test that assertion in the petition could have referred to was the home test, since the court-ordered test was done after the petition was filed.
Having found that he did know at the time of the divorce that he was not the father, the court went on to distinguish Williams and to find it inapplicable because Mr. Lee knew when he undertook the obligation that he was not the father, he supported the child and exercised visitation with him. In Williams, the exact opposite of those facts existed.
The court also held that Mr. Lee had failed to prove a material change in circumstances that arose after the prior judgment that was sought to be modified. He knew the child was not his at the time, and that circumstance had not changed.
Bottom line is that Williams is an escape hatch for a dad who was led to believe that he fathered a child and only learned later that he did not. Williams, however, can not be used to relieve a support obligation in any case where the payor is related by blood to the child, or has adopted the child, or has otherwise voluntarily assumed the duty to support the child.
If you represent a father in an ID divorce, and he expresses any doubt as to whether a child is his, you should advise him of the ramifications of the Williams and Lee cases. If he wants to shrug it off and just “get it over with,” you should put your advice in writing and get him to sign off on a copy for your file.
August 12, 2010 § 9 Comments
A practice tip about trial factors is here.
The trial court is required to consider the factors set out in Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985), in determining whether child support should be modified.
- Increased needs caused by advanced age and maturity of the children;
- Increase in expenses;
- Inflation factor;
- The relative financial condition and earning capacity of the parties;
- The physical and psychological health and special medical needs of the child;
- The health and special medical needs of the parents, both physical and psychological;
- The necessary living expenses of the paying party;
- The estimated amount of income taxes that the respective parties must pay on their incomes;
- The free use of residence, furnishings, and automobiles; and
- Any other factors and circumstances that bear on the support as shown by the evidence. (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955).
Expenses of private school are a legitimate factor to consider in modification proceedings, although the expenses are inadequate standing alone. Southerland v. Southerland, 816 So. 2d 1004, 1007 (¶13) (Miss. 2002).
Educational expenses may be properly considered with the increased needs of older children and their increased extracurricular activities in order to justify an increase in child support. Havens v. Brooks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).
Remember that the keystone consideration for modification is a change in expenses of the child. You must put on proof that establishes what the expenses were at the time of the judgment you are seeking to modify, as well as proof of the expenses at the time of trial. Most importantly: It is not adequate to prove only that the income of the paying parent has increased.
July 19, 2010 § 32 Comments
A practice tip about trial factors is here.
The factors that the court must consider in awarding child custody are set out in Albright vs. Albright, 437 So.2d 1003, 1005 (Miss. 1983).
The factors are:
- Age, health and gender of the child.
- Parent having continuity of care prior to the separation.
- Parent with best parenting skills and willingness and capacity to provide primary child care.
- Employment of the parent and responsibilities of that employment.
- Physical and mental health and age of the parent.
- Emotional ties of parent to child.
- Moral fitness of the parent.
- Home, school and coomunity record of the child.
- Preference of the child at age sufficient to express a preference.
- Stability of parent’s home environment and employment of each parent.
- Relative financial situation of the parents.
- Difference in religion of the parents.
- Differences in personal values of the parents.
- Differences in lifestyle of the parents.
- Other factors relevant to the parent-child relationship.
The Albright factors are not to be applied in the manner of a scoresheet or mathematical formula. Lee v. Lee, 798 So.2d 1284, 1288 (Miss. 2001). The Chancellor may give special weight to one, two or several factors to determine the outcome. Divers v. Divers, 856 So.2d 370, 376 (Miss. App. 2003). The Chancellor has the ultimate discretion to judge the weight and credibility of evidence. Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss. 1994); Johnson v. Gray, 859 So.2d 1006, 1013-1014 (Miss. 2003).
In an original action for custody, the Albright factors govern the award.
In a modification of custody case, the proponent must prove 3 things, in combination, in order to prevail:
- That there has been a change in circumstances of the custodial parent material to the issue of custody since entry of the last judgment; and
- That the change in circumstances has an adverse effect on the minor child; and, if 1 and 2 are proven
- That it is in the best interest of the minor child to change custody. Determination of the child’s best interest is based on application of the Albright factors to the facts of the case.
The standard for modification is like a three-legged stool; if one leg is missing, the stool can not stand. It is a three-prong or three-part test.
There is one exception to the three-part test for modification. In the case of Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996), the Mississippi Supreme Court held that it is not necessary to prove adverse effect where the child is in an inherently dangerous or unsuitable situation, as where the custodial parent is using drugs. Evidence of the Albright factors should still be offered in such cases. Some argue that Albright proof would not be necessary in a case where the proof shows a clearly dangerous circumstance, but it is this judge’s position that proof of the Albright factors in such a case would make the case airtight.
There have been cases following Riley that have explained and even expanded on the concept, so that now there is arguably a “totality of the circumstances” test to justify modification. Some attorneys have taken the position that the “totality” is an alternative avenue to the three-pronged test. This court is not convinced, and takes the position that Riley and its progeny apply in extreme circumstances where the proof shows that the child is showing no adverse effects despite being in an inherently dangerous situation. In my opinion, the Riley line of cases is not intended to create a new remedy where there is no inherently dangerous situation and the proof is not strong enough to satisfy the three-prong test.
The Albright factors apply only to physical custody, and the Chancellor is not required to address them in considering whether to grant joint legal custody only. Palculict v. Palculict, 22 So.3d 293 (Miss. App. 2009).