Something Beneath the Surface

November 16, 2015 § Leave a comment

The recent COA case Campbell v. Watts, decided October 20, 2015, illustrates a frustrating phenomenon that every chancellor has experienced. It’s the dilemma presented in a child custody case where the proof is not very strong, and certainly not conclusive, yet there is evidence of a situation where questions about the child’s best interest arise.

Greg and Catherine Campbell were divorced from each other in 2004, and they shared joint legal and physical custody of their son, Gavin. In 2010, Greg filed for modification, and he was awarded sole physical custody, with the parties sharing joint legal custody.

In 2013, Catherine, now “Watts,” filed a petition to modify custody, claiming that Greg was withholding visitation. At trial, Gavin testified that he wanted to spend a week alternating with each parent. Catherine testified that Greg was controlling, and that Gavin displayed rebellious behavior. Catherine conceded that Greg had been complying strictly with court-ordered visitation, but she felt that he should be more liberal with allowing her time with Gavin. Greg complained that Catherine and her husband had parties at their home that were inappropriate for Gavin, which Catherine disputed.

The chancellor found that the parties should share joint physical custody, alternating by weeks, and that Greg should honor the joint legal custody arrangement. She ordered Greg to pay Catherine $300 a month child support. The COA opinion described the ruling this way:

¶12. In the chancellor’s bench opinion, she stated that Greg needed to include Catherine in the decision making, per the joint-legal custody arrangement. The chancellor also urged Greg to allow Gavin more time at Catherine’s when he asks to stay there a bit longer. In modifying custody, the chancellor stated Gavin wanted to alternate time with both parents. She further stated that Gavin’s attitude when he returns to his father’s is “just the bubbles of something boiling under the surface.” The chancellor explained that she wanted to prevent Gavin from acting out in the future.

The chancellor dis not specify what were the material change and adverse effect upon which the modification was based, and she did not conduct an Albright analysis.

Judge Fair penned the majority opinion, which was joined by Lee, Barnes, Ishee, Carlton, and Maxwell. Wilson wrote a separate opinion, concurring in part and dissenting in part, which was joined by Irving, Griffis, and James. The majority, which rendered judgment in favor of Greg, devoted part of its rationale to addressing the separate opinion. Because it addresses some legal issues that many of you deal with every day, I will quote from it at length:

¶13. “Where there is no specific identification of the alleged change in circumstances, this Court is placed in the position of attempting to guess what the chancellor determined was a proper basis for a change in custody.” Sturgis v. Sturgis, 792 So. 2d 1020, 1025 (¶19) (Miss. Ct. App. 2001). Despite Catherine’s claims, the record reflects that she failed to present any proof that Greg’s living situation had changed at all since the modified divorce decree was entered, that it had adversely affected Gavin, or that Gavin was in any danger. See Giannaris, 960 So. 2d at 467-68 (¶10) (modification must be based on conduct of the parent who poses a danger to the mental or emotional health of the child). In fact, Catherine testified that she had no problems with Greg’s home.

¶14. In modifying custody, the chancellor emphasized Gavin’s testimony, where he said he would like to alternate time with both parents. Gavin’s election alone, as the separate opinion admits, does not rise to the level of a material or substantial change of circumstances. In re E.C.P., 918 So. 2d 809, 824 (¶62) (Miss. Ct. App. 2005); see also Best v. Hinton, 838 So. 2d 306, 308 (¶8) (Miss. Ct. App. 2002) (modification of custody based upon the child’s preference was reversed because “such an expression, supported by nothing more,” is not “the type of adverse material change in circumstance that would warrant a custody modification”). The chancellor also expressed concern about Gavin’s “rebellious” behavior. There is no evidence in the record detailing such behavior or showing an adverse effect on Gavin. Gavin’s stepmother, Ashley, explained that any “rebellious” behavior quickly went away after twenty-four hours of Greg’s return to his father’s home. And Gavin testified that his father was not doing anything mean to him in the home. Gavin further testified that he made good grades in school and had a good relationship with his stepmother and younger brother (Greg and Ashley’s son).

¶15. The separate opinion would hold that custody modification can be based on a thirteen-year-old’s expression of his preferences and his reasoning supporting them. We would note, however, that in 2006, Mississippi Code Annotated section § 93-11-65 (1)(a) was amended to say “the chancellor may consider the preference of a child of twelve (12) years of age or older” in a custody determination, as opposed to the previous language stating that the chancellor shall consider the preference of the child. See Miss. Code Ann. § 93-11-65 (Rev. 2013) (emphasis added); Miss. Code Ann. 93-11-65 (Rev. 2004). “Before this amendment, a child over the age of twelve had the ‘privilege’ of choosing which parent to live with, as long as both parents were fit and it correlated with the best interest of the child, instead of merely being able to express that preference, as the statute currently reads.” Phillips v. Phillips, 45 So. 3d 684, 693 (¶28) (Miss. Ct. App. 2010). Now, a child’s preference is recognized as only one of the Albright factors, similar to the “tender years doctrine” (or the maternal preference rule), which was given similar statutory weight at one time. See Albright v. Albright, 437 So. 2d 1003, 1004-05 (Miss. 1983) (acknowledging the recent “reevaluation” and “weakening process” of the doctrine).

¶16. The dissent also emphasizes the fact that Greg’s testimony failed to show how Catherine’s home environment was unfit, and that this finding, in addition to Gavin’s request to spend more time with both parents, supports the chancellor’s modification. But it is Catherine’s burden “to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial [parent Greg’s] home.” Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003). And this change must adversely affect Gavin’s welfare. Id.

¶17. Greg and Catherine were originally granted joint physical custody after their divorce in 2004. In 2010, Greg was granted physical custody. Three years, later Catherine petitioned for joint physical custody. So this will be the third time Greg’s parents have sought involvement of the court in his custodial arrangements. The separate opinion submits that Gavin’s hurt feelings, as explained in his testimony and in conjunction with an expressed “preference” for alternate weekly visitation with both parents, are “adversely affecting” him and justify a change in his custody. But “[i]t is foreseeable, indeed expected, that as a consequence of divorce a child will experience changes in his or her circumstances and experience anxiety as a result of the disruption of the family unit. Divorce has consequences which are often adverse, particularly for younger children.” Lambert v. Lambert, 872 So. 2d 679, 684 (¶19) (Miss. Ct. App. 2003). When considering initial custody arrangements or a modification of custody (whether months or years later), chancellors should not change custody based on these consequences without sufficient justification. Id. The noncustodial parent must prove that the “mental and emotional well-being of the child [is in] danger as a result of living with the custodial parent.” Id. at 685 (¶26). Catherine did not.

¶18. Rather than modify custody, however, the chancellor could have easily modified the visitation schedule based on the evidence of record (particularly Gavin’s testimony). To modify visitation, “[a]ll that need be shown is that there is a prior decree providing for reasonable visitation rights which isn’t working and that it is in the best interests of the children” that it be modified. Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). Although Catherine petitioned to modify custody, in her testimony she specifically asserted that she wanted Greg to be more liberal with her visitation. The testimony of Greg, Catherine, and Gavin reflects that the visitation schedule at the time of the hearing clearly was not working. And that evidence as discussed in the chancellor’s ruling, which emphasized Gavin’s need to have an improved relationship with both of his parents, may have been sufficient to support a grant of more liberal visitation to Catherine. See Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994) (stating that the chancellor’s consideration of visitation always includes recognition of the child’s need to maintain a loving and healthy relationship with the noncustodial parent). Modifying visitation would have allowed the chancellor to grant Catherine and Gavin’s request for more time together, without weakening the material change in circumstances standard long required for modification of custody of children.

¶19. As stated in Ballard v. Ballard, 434 So. 2d at 1357, 1360 (Miss. 1983), a change in custody is a “jolting, traumatic experience. It is only that behavior of a parent which clearly posits or causes danger to the mental and emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis to seriously consider the drastic legal action of changing custody.” The separate opinion correctly notes that Greg strictly adhered to the court order, keeping Gavin from spending any extra time with Catherine. The chancellor characterized Greg’s behavior as unreasonable. Gavin testified that his dad’s behavior in strictly honoring the court order hurt his feelings. While his behavior may justify a modification of visitation, we cannot find that it amounts to a material change in Greg’s home that has adversely affected Gavin.

The separate opinion would have found that the chancellor did not err in finding a material change in circumstances, and would have remanded for further proceedings.

The chancellor in this case sensed “something boiling beneath the surface,” and she attempted to fashion a remedy. Unfortunately, that is not a legal standard. Still, this case illustrates what happens from time to time in child custody proceedings. There is something askew that needs to be addressed, but the proof simply does not support the measure that the judge deems necessary to resolve the issue.


The Touchstone for Modification

October 6, 2015 § Leave a comment

The recent COA decision in Vogt v. Blann, handed down September 15, 2015, includes some interesting language that you might want to take to heart next time you have a custody modification case.

Brian Blann and April Vogt were divorced from each other in 2007. They had one daughter, Adyson, and April was awarded custody of her. In 2012, Brian filed a petition for modification of custody. At trial the proof established some questionable circumstances that had arisen since the divorce:

  • April dated various men, lived with one, and gave birth to a child whose father she could not identify.
  • Adyson attended several different schools, and had absences due to moves.
  • When in kindergarten at one school, Adyson missed 12 days of school, nine unexcused.
  • At another school during the same school year, Adyson missed six days and was tardy 12 times.
  • At the time of trial, Adyson was in first grade, and had seven absences and four tardies. She had an “F” in reading.
  • Adyson had several illnesses, including strep, hand-foot-and-mouth disease, and April did not always get her suitable medical care.
  • Police were called to an altercation between April and her boyfriend; she was arrested, “went off” on the police, and tried to kick the window out of the squad car where she was detained.
  • DHS took custody of all three of April’s children (including Adyson) for six months.
  • Adyson had serious dental issues that April had not adequately addressed.

The chancellor found there to have been a material change and an adverse effect, and awarded Brian physical custody. The parties were to share joint legal custody, and April was given visitation rights. April appealed.

In his opinion, Justice Irving said this:

¶19. The chancellor determined that there had been a material change in circumstances that adversely affected Adyson’s well-being based on the following findings: April’s “numerous moves,” which created instability; “numerous men” in Adyson’s life; “numerous tardies and absences at the school[s,]” some of which were unexplained; and Adyson’s “suffering” grades. The chancellor also noted, with respect to the police incident, that the “reaction that the mother did [sic] at that time to that circumstance was certainly not smart.” The chancellor also pointed out that April did not know if “the children [had woken] up and look[ed] outside” and had seen their mother’s behavior.

¶20. The record is silent as to April’s living conditions at the time of the initial custody order, so we have nothing to compare. [Emphasis mine] …

Now, let’s stop right there.

It’s fundamental that modification of custody requires (a) material change in circumstances of the custodial parent’s living circumstances; (b) adverse effect on the child; and (c) a determination that it is in the child’s best interest to change custody.

Yet here, “the record is silent” as to April’s conditions at the time of the original custody determination in the divorce. Oops. That could have been a fatal mistake, but for the chancellor who was undoubtedly making findings that he felt he had to make for the best interest of Adyson.

If you find yourself in a similar case, be sure to put on proof to show what were the custodial parent’s living circumstances at the time of the initial custody determination. It may come in via adverse testimony of the respondent herself, or through your client. It may be by third parties. It could even come in through the chancellor’s original opinion and judgment at the time of the initial custody determination, which you can get into the record by a certified copy, or by asking the court to take judicial notice.

But however you do it, you have got to show that there has been a change, and to prove change you have to show what the situation was that has now changed. This is true in every type of modification. If it is child support, you have to show the parties’ financial situation, and the age of the child at the time of the initial judgment. Change is the prime mover in modification.

No Change = No Modification

February 25, 2015 § Leave a comment

Nathan and Kathryn Robinson were married in January, 2004. At the time of the marriage, Kathryn was pregnant with the parties’ daughter, Bailey, who was born in July, 2004. During the pregnancy, Kathryn was diagnosed with Hodgkin’s lymphoma. Shortly thereafter, Nathan and Kathryn separated, and Kathryn moved in with her parents.

The couple were granted an irreconcilable differences divorce on May 3, 2005, and they agreed that Kathryn would have custody of Bailey.

Kathryn moved to her own place after the divorce. Over time, she developed neuropathy in her hands as a result of the chemotherapy she underwent for her lymphoma, which made it impossible for her to drive. She had to rely on her parents to help transport Bailey to and from school, which meant that the child often stayed overnight with her grandparents on school nights. She slept at Kathryn’s on weekends and during vacations.

In 2009, Nathan filed a modification action seeking custody of Bailey. He alleged that Kathryn’s health condition impaired her ability to care for Bailey, and that Kathryn had ceded her parental responsibility to her parents. Following a trial, the chancellor found that there had been no change in circumstances because Kathryn’s health condition existed at the time of the divorce, and that Kathryn had not abdicated her parental duties in favor of her parents. Nathan appealed.

In the case of Robinson v. Robinson, handed down February 10, 2015, the COA affirmed. The opinion by Judge Griffis agrees with the chancellor’s conclusion about the pre-existing condition, and recites the familiar rule that where the parties are aware of the condition at the time of the divorce, neither may try to use it later as a basis to modify. The court relied on the same principle to affirm the finding that Kathryn had not abandoned her role as a parent since both parties knew at the time of the divorce that she would have to have help from her parents with Bailey. The opinion distinguishes the case of McBride v. Cook, 858 So.2d 160 (Miss. App. 2003), in which the mother totally abdicated her parental role, which was unforeseen at the time of the original custody judgment.

As an attorney, you do not always know what all of the circumstances are that might affect a later proceeding. We don’t know from the COA case what the exact language was that effected the custody agreement in the divorce action. If you were Kathryn’s attorney at the time, wouldn’t it have made you look like a genius if you had spelled out specifically in the PSA what her health condition was at the time, and that she was going to have to rely on help from her parents, but that Nathan nonetheless agreed for her to have custody? What an airtight package that could have been.

I also wonder whether more emphasis on the neuropathy and its impact on continued custody, perhaps bolstered with some expert opinion testimony, might have tilted the result in Nathan’s direction. A good argument could be made that, although the Hodgkin’s was known at the time of the divorce, the complication of neuropathy was not, and it arguably has a direct detrimental effect on custody.

As the COA opinion pointed out, though, the record was clear that Kathryn had a pretty good track record of taking care of Bailey, even with her physical impairments, so the modification case was an uphill climb.

Recovering Lost Custody

July 16, 2013 § 4 Comments

We talked last week about the natural parent presumption for custody, and how it may be lost.

Once a parent has lost custody on a finding of unfitness, and he or she later reforms the unfit conduct, what is the standard of proof required to recover custody?

In the case of Barnett v. Oathout, 833 So.2d 563 (Miss. 2004), DHS had removed the minor children from the parents’ home and placed the children in a foster home for more than two years. After the Youth Court had awarded the foster parents durable legal custody and they denied the natural father visitation, he petitioned for modification of visitation. The MSSC stated the rule to be followed by the modification court, as follows:

“The chancellor had to make two determinations: first, whether [petitioner] showed that there was a substantial change of circumstances which adversely affected the children, where it would be in the best interest of the children that custody be changed; and second, whether [the petitioner] showed that he had eliminated the behavior that caused the children to be taken in the first place.” Id., at 568 (¶ 10).

The court went on to find that the rule in Grant v. Martin, 757 So.2d 264 (Miss. 2000), that a parent who agrees to third-party custody forfeits the natural-parent presumption does not apply in cases in which a child is placed with DHS.

That would appear to mean that, although the natural parent in a DHS case does not lose the natural-parent presumption, the standard of proof to modify will be material change-best interest-reformed conduct.

But in 2010, the MSSC extended the Barnett rule to non-DHS cases in the case of Adams v. Johnson, 33 So.3d 551 (Miss. App. 2010), where the court held that when a third party has gotten cusstody of a child due to the unfitness of the parent(s), modification will require proof that there has been a “material change in circumstances in the [grandparents’] home that adversely affected the children.” Id., at 555-56 (¶ 10). No mention of reformed conduct.

As the dust settles, it looks like whether the natural parent voluntarily gives up the child, or has the child taken away, a later attempt to modify custody will require the standard material change-adverse effect-best interest standard, without regard to any natural parent presumption.

[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]



September 26, 2011 § 3 Comments

I talked here before about the Varner case, which holds that a child-support-paying parent (the father in that case) who has a child come to live with him may receive a credit against unpaid child support for that de facto custodial time. In Varner, the mother had court-ordered custody, but the parties made a handshake deal for the child to go and live with the father for a time.

Taking a similar set of facts, would the father have a basis to ask the court to modify custody?

In Arnold v. Conwill, 562 So.2d 97 (Miss. 1990), the father had the son with him for 16 months because of the mother’s unsettled living situation. The mother had asked the father to take the boy until she could get settled. When she did get into a stable situation, she asked the father to return the child to her custody. When he refused, she picked the child up from school, enrolled him in a new school, and resumed full-time custody of the son. The father filed a modification action, and the chancellor granted him custody due to the 16-month period.

On appeal, the MSSC recited the familiar material change-adverse effect-best interest test for changing custody. Applying that test to the facts of the case, the court said (at 100):

“To her credit, when she fell upon hard times, appellant called the child’s father for help. The custody was temporarily interrupted because of conditions over which she had no control. When she stabilized the situation, she asked appellee to restore custody to her and he declined. The parties’ act, in temporarily modifying the decree, was not binding on the court. The only change in circumstances, upon which the appellant can rely, and which the court accepted, was the fact that the father had custody for sixteen moths while the appellant, the mother, had liberal visitation withh the child.

Simply, the facts of this case do not reflect a material change in the circumstances of the parties and the child, which adversely affected [the child], to the extent that his custody should be changed from appellant to appellee.”

A lot of water has flowed under the bridge in the 21 years since this case was decided, but I believe it is still good law for the above points, and it has never been overruled or criticized. There are, however, two wrinkles:

  • At page 100, there is this statement: “The courts do not favor separating siblings when their parents divorce.” That concept has been refined since then to provide that, although separation is not favored, there is no hard and fast rule about separation, but it is one of many factors to be considered by the court among the Albright factors for determination of best interest. See, for example, Kimbrough v. Kimbrough, decided by the COA May 3, 2011.
  • And on the same page is the statement that the facts of the case did not reflect material change-adverse effect-best interest, and “Neither did the motion so charge nor the chancellor so find.” As we’ve discussed before, the law now is that if you fail to plead the elements of custody modification, your case is subject to being dismissed for failure to state a claim upon which relief can be granted.


August 23, 2011 § 2 Comments

You are representing your client in an irreconcilable differences divorce, and the long-awaited PSA has arrived in the mail from counsel opposite. Here are the provisions dealing with custody:

(g) So as to insure a fit and proper environment for the rearing of the minor children, the parties agree that in the event there is a scintilla of evidence of unmarried sexual activity by wife where the minor children are residing or in the vicinity of the minor children, wife shall immediately forfeit and be divested of all custody rights with respect to the minor children, custody of the minor children thereupon automatically vesting in husband, subject only the right of wife to have reasonable visitation with the minor children at reasonable times and places.

(h) In furtherance of the concept of a “home base” hereinabove discussed, the parties agree that the children shall reside in the Columbus, Mississippi area. Wife agrees to give husband sixty (60) days advance written notice of any intended relocation. Unless both parties agree that the children may be removed from the Columbus, Mississippi area to this new location, wife shall be divested of custody of the minor children upon such relocation and custody shall thereupon be vested in husband subject to further orders of the Court. Wife shall have the right to reasonable visitation with the minor children at all reasonable times and places during this period until the matter is finally determined by the Court.

(i) During the portion of the year in which the children reside with wife, wife agrees to give husband advance notice of any trips she plans out of the town of Columbus, Mississippi and further agrees to limit any out of Columbus, Mississippi trips to not more than three nights and to provide husband with information regarding her destination and location so as to afford him a basis to communicate with her if necessary. Furthermore, during such out of town trips, husband, at his option, shall have the right to have custody of the minor children.

It looks pretty much like what your client has told you was her agreement. She and her soon-to-be ex want the children to have some stability, and she wants this divorce over so she can get on with her life. If that’s what her husband wants, she is willing to agree to it just to get this over with.

Subparagraph (g) would effect an immediate change in custody in the event that your client engaged in unmarried sexual activity “where the children are residing” or in their vicinity, and the burden of proof would be a “scintilla of evidence,” a humble standard by any measure.

Subparagraph (h) would create an automatic modification of custody if your client relocates from the Columbus, Mississippi, area.

Subparagraph (i) essentially provides that unless the father gives your client permission to take the children out of town for longer than tree nights, she must give him custody for the duration of such trips.

What is your advice to her?

Check out the case of McManus v. Howard, 569 So.2d 1213 (Miss. 1990). There, the parties had agreed to the very terms cited above, which were approved by the chancellor.  Later, the mother sought either a modification or an MRCP 57 declaratory judgment that the agreement was unenforceable as to subparagraphs (h) and (i). It appears that neither party injected subparagraph (g) into the litigation, but one can speculate that it was a tactical decision by counsel to avoid an appearance of wanting to promote or condone inappropriate activity. The MSSC did not explain why it referenced the provision in its opinion.

The chancellor denied modification for the reason that the material change-adverse effect-best interest test had not been met. He denied declaratory judgment on the ground that the parties had contracted for the custodial arrangement, and their contractual agreement should be enforced.

In the MSSC opinion, Justice Blass wrote (at page 1216):

“Being given jurisdiction by Miss.Code Ann. 93-5-24(6) (Supp.1990) and the children being wards of the state, Tighe v. Moore, 246 Miss. 649, 666, 151 So.2d 910, 917 (1963) and there being an ample body of the case law for the guidance of the court, Arnold v. Conwill, 562 So.2d 97, 99 (Miss.1990); Rutledge v. Rutledge, 487 So.2d 218, 219 (Miss.1986), the court simply cannot surrender or subordinate its jurisdiction and authority as to the circumstances and conditions which will cause a change in custody. We hold such an Agreement to be void and contrary to public policy. We have recently considered a similar problem and have reached the same conclusion. Bell v. Bell, No. 89-1108 (Miss. Oct. 3, 1990). Accordingly, we reverse, and grant judgment here for the declaratory judgment as to later sub-paragraphs 2(h) and 2(i). No other matters were submitted to this Court by the appeal.

The Bell case cited by the court found unenforceable an agreement between the parties under which the children were required to live in Tupelo until majority, and the relocation of the custodial parent would trigger an automatic modification of custody. Bell v. Bell, 572 So.2d 841, 845 (Miss. 1990). 

The MSSC in McManus held that subparagraphs (h) and (i) above were unenforceable and reversed the chancellor’s ruling. There was no mention of subparagraph (g), because it was not a part of the underlying suit and was not raised on appeal, but the court’s rationale would apply to it as well, in my opinion.

It was my experience as a practitioner that parties occasionally wanted to include similar provisions in their PSA’s. Our chancellors would not approve an agreement that included the language, and I so advised my clients.

Where Am I?

You are currently browsing entries tagged with modification of custody at The Better Chancery Practice Blog.