When the GAL Goes Beyond the Court’s Mandate

February 6, 2017 § 2 Comments

What is the court’s duty to address a GAL’s recommendations on matters not included in the court’s order appointing the GAL?

Angela Davis and her ex-husband, Gary Davis, shared joint legal and physical custody per an irreconcilable differences divorce judgment entered in 2004. In 2013, following an altercation between Gary’s then wife and one of the children, Angela sued him for termination of parental rights (TPR), or for modification of custody, and for an upward modification in child support. Gary counterclaimed for contempt and for modification to give him sole custody.

The chancellor appointed a GAL to make recommendations with respect to the TPR issue. The GAL recommended that Gary’s parental rights not be terminated, and went on to recommend that Angela have “primary custody,” with Gary having visitation, “because that is how they have been operating since the date of the divorce.”

The chancellor denied Angela’s prayers for TPR, for modification of custody and visitation, and for an increase in child support. He did order Gary to pay the children’s private school tuition. Angela appealed, and one of the issues she raised was that the chancellor’s ruling failed to address why he did not follow the GAL’s recommendation as to custody and visitation.

The COA affirmed in Davis v. Davis, handed down January 24, 2017. Here’s how Judge Lee wrote for the unanimous court (Westbrooks not participating):

¶19. In her third issue, Angela claims the chancery court should have followed the GAL’s recommendation as to the modification-of-custody/visitation issue, or it should have provided written findings as to why the GAL’s recommendations were not followed.

¶20. “Our supreme court does not require a chancellor to follow the findings of a GAL.” In re N.B., 135 So. 3d 220, 228 (¶35) (Miss. Ct. App. 2014) (citing S.N.C. v. J.R.D. Jr., 755 So. 2d 1077, 1082 (¶17) (Miss. 2000)). “However, ‘when a chancellor’s ruling is contrary to the recommendation of a statutorily required GAL, the reasons for not adopting the GAL’s recommendation shall be stated by the court in the findings of fact and conclusions of law.’” Id. (quoting S.N.C., at 755 So. 2d 1082 (¶18)).

¶21. Here, the GAL was appointed solely to investigate the termination of parental rights. The GAL recommended that Gary’s parental rights not be terminated, and the chancery court followed the GAL’s recommendation. Since the GAL was not appointed to investigate the modification-of-custody/visitation issue, we cannot find the chancellor erred in failing to state his reasons for not adopting the GAL’s recommendations regarding custody and visitation.

Some thoughts:

  • Make sure your GAL order is specific and clear as to which issues the GAL is required to serve. Angela’s appeal might have won the day had the GAL order been vague or general (e.g., ” … to make recommendations as to the best interest of the children …” ).
  • I’m not sure whether this issue has been squarely before the appellate courts before, but to me it’s definitely a new wrinkle in GAL jurisprudence.
  • Once again the term “primary custody” pops up in a case. In 2009, the MSSC ruled that the term “primary custody” and its permutations like “primary physical” and “primary legal” and “primary physical and legal” custody have no legal meaning in our law. You might recall that I posted here about it ‘way back in 2010. It’s not that big a deal in most cases, but, as I pointed out in that previous post, it can work some serious mischief in custody agreements and judgments. In my opinion, it’s better simply to purge the term entirely from your legal vocabulary than to use it heedlessly and have it ricochet fatally against a client or former client in later proceedings. In a recent custody case I heard, counsel for both parties used the term repeatedly. It was like fingernails on a blackboard to me.

The Practicality of Joint Custody

August 10, 2015 § 7 Comments

We are seeing joint custody arrangements more and more frequently in ID divorces. And recent cases out of our appellate courts have signaled not only that joint custody may be awarded in a contested case, but that it should be considered in every case.

When MCA 93-5-24 was first adopted to provide for joint custody arrangements, it was frowned on by many chancellors who believed it was in the best interest of the child “to know where his home is,” and because once it was imposed, it was devilishly difficult to get out of because it required the same showing as modification of custody (material change in circumstances + adverse effect + best interest).

Over time, experience taught us that stability for a child arises more out of a loving, safe, attentive home environment than out of a particular place, and that there were plenty of parents who could provide that kind of environment, even when living apart in separate households.

Another change that made joint custody more attractive was the amendment of MCA 93-5-24(6) to provide that: “Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.” That’s significantly easier to modify than sole custody.

Just because your client wants to agree to joint custody, however, does not mean that it should be adopted. A recent case shows how the practicality of the custody arrangement must be taken into account.

Debra and Christopher Thames separated in 2013, when Debra left Mississippi and moved to San Antonio, Texas, taking the parties’ one-year-old daughter with her. Christopher filed for divorce, and the parties entered into a consent for the judge to adjudicate custody. The chancellor ordered that the parties share joint physical and legal custody, alternating one-month periods of physical custody between them. Debra appealed.

In Thames v. Thames, handed down July 28, 2015, the COA reversed and remanded. Judge Lee, for the court:

¶11. “[T]he polestar consideration in child[-]custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). To that end, chancellors must conduct an Albright analysis, weighing each of the applicable factors. Id. Where both parties consent in writing to submit the issue of custody to the chancellor for his determination, and the chancellor finds both parents fit, joint custody may be awarded. Crider v. Crider, 904 So. 2d 142, 143-49 (¶¶3-17) (Miss. 2005). “[J]oint custody should not be awarded[, however,] where it is impractical or burdensome to the children.” Jackson v. Jackson, 82 So. 3d 644, 646 (¶9) (Miss. Ct. App. 2011). The parents must also be capable of cooperating if joint custody is to be awarded. Crider, 904 So. 2d at 148 (¶16).

¶12. Debra does not attack the soundness of the chancellor’s Albright analysis, but argues that the chancellor failed to consider whether the joint-custody arrangement was practical due to the distance Sofia had to travel every month. Debra also claims the chancellor failed to consider whether the parties were capable of cooperating. Because we find that the joint custody arrangement is impractical, we decline to address whether the parties are capable of cooperating.

¶13. “There have been prior decisions regarding initial joint-custody arrangements that became impractical after one or both parents moved.” Massey v. Huggins, 799 So. 2d 902, 906 (¶11) (Miss. Ct. App. 2001) (citations omitted). In McRee v. McRee, 723 So. 2d 1217, 1218-19 (¶4) (Miss. Ct. App. 1998), this Court affirmed the chancellor’s decision to modify custody based on the father’s relocation to Houston, Texas. The chancellor found that “[t]he joint-custody agreement, which provided for the child to stay with each parent on alternating months, was impractical once [the father] moved to Texas.” Id. at 1219 (¶6). He found that a modification was inevitable and that the question to be answered was who was to have primary custody. Id. The parties to that suit agreed. Id. In Massey, 799 So. 2d at 905-06 (¶¶6-13), this Court agreed with the chancellor that joint physical custody was impractical where one party moved to Long Beach, Mississippi, and the other to Petal, Mississippi. The chancellor was quoted as saying, “as I view the situation, the biggest change that has occurred, as far as these parties are concerned, is that their joint[-]physical[-]custody arrangements are not possible now because they live in different areas of the state.” Id. at 906 (¶13). He stated that there would “have to be a change of [physical] custody” and that the issue was “whether it’s going to be with the mother or father.” Id. The initial custody arrangement in Massey had four exchanges between the parents each week, and both parents sought sole custody upon modification. Id. at 905-06 (¶¶5-13).

¶14. There are also prior decisions that discourage the use of alternating custody arrangements. Case v. Stolpe, 300 So. 2d 802, 804 (Miss. 1974); Brocato v. Walker, 220 So.2d 340, 343 (Miss. 1969); Daniel v. Daniel, 770 So. 2d 562, 567 (¶15) (Miss. Ct. App. 2000). See also Lackey v. Fuller, 755 So. 2d 1083, 1088-89 (¶¶27-29) (Miss. 2000). In Daniel, the child was alternating custody back and forth between Arkansas and Mississippi every two weeks. Daniel, 770 So. 2d at 563-66 (¶¶2-14). This Court, noting that this type of arrangement was to be discouraged, declined to make any changes because the child was nearing the age of five-year-old kindergarten, at which time the father was to exercise primary physical custody. Id. at 563-67 (¶¶2-15). We declined to interrupt what had become the child’s regular routine. Id. at 567 (¶15).

¶15. After conducting an Albright analysis, the chancellor in this case found that joint custody was in Sofia’s best interest, irrespective of the distance she would have to travel to spend time with each parent. We do not agree. Given the distance between San Antonio, Texas, and Brandon, Mississippi, a monthly alternating custody arrangement is not in Sofia’s best interest. The distance between San Antonio and Brandon renders this custody arrangement impractical. In McRee, we agreed with the chancellor that an alternating monthly custody arrangement that shifted the child between Houston, Texas, and Jackson, Mississippi was impractical. See Massey, 799 So. 2d at 906 (¶13). The distance between San Antonio and Brandon is even greater. We, therefore, reverse the chancellor’s judgment and remand this case for a reconsideration of the Albright factors and a determination of who is to have primary custody of Sofia.

That’s a nifty review of the law of joint custody in a nice block of research that you can copy and paste into a motion or even a brief.

This decision should remind you that you have got to advise your clients about what is and is not workable as a joint custody arrangement. Practicality is a significant consideration.

One quibble: Are we going to keep talking about “primary physical custody” or “primary custody” when the MSSC has told us in no uncertain terms that the word “primary” when used in conjunction with any form of custody has no meaning in the law?  Porter v. Porter, 23 So.3d 438 (Miss. 2009). I posted about Porter and its pitfall at this link.

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