The Better Chancery Practice Blog

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 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.