February 13, 2019 § Leave a comment
In most cases, it’s the COA telling a chancellor that he should not have ordered supervised visitation. The default setting for visitation is that it should be unsupervised and free of any unwarranted restrictions.
But in the final judgment of divorce between Christina and William Leblanc the chancellor refused to impose supervision or other restrictions on William’s visitation and Christina appealed, complaining that William had a history of drug problems that made supervision necessary.
In Leblanc v. Leblanc, decided October 23, 2018, by the COA, reversed on other grounds, the court remanded the visitation issue to the trial court to determine whether supervised visitation was required for the children’s best interest. Judge J. Wilson wrote the opinion for a unanimous court (Irving not participating):
¶66. “The chancellor has broad discretion when determining appropriate visitation and the limitations thereon.” Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994). “When the chancellor determines visitation, he must keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child.” Id. “[T]here must be evidence presented that a particular restriction on visitation is necessary to avoid harm to the child before a chancellor may properly impose the restriction.” Id. “Otherwise, the chancellor’s imposition of a restriction on a non-custodial parent’s visitation is manifest error and an abuse of discretion.” Id. However, a chancellor may require visitation to be supervised based evidence of continued drug abuse by the non-custodial parent. See Bell, Mississippi Family Law § 12.08, at 378-79. A court may also order parents to continue to submit to drug testing. See McLemore v. McLemore, 762 So. 2d 316, 322 (¶19) (Miss. 2000).
¶ 67. Prior to trial in this case, the chancery court entered two orders requiring supervision of Billy’s visitation. The orders were based on concerns about Billy’s continued drug use. During the same time period, Billy failed both of his court-ordered drug tests, testing positive for methamphetamine and amphetamines in August 2016 and again in November 2016. A few months later at trial, the court heard additional testimony and evidence regarding Billy’s drug use and history of drug addiction. Billy admitted at trial that he had used drugs at home and “had some issues with drugs.” Billy did not testify that those issues had been addressed, nor is there any evidence that they were. There is no evidence in the record that Billy ever passed a drug test during the course of this case, and the results of his November 2016 drug test suggested that his drug use had actually increased. Despite these issues, the court’s final judgment awarded Billy substantial unsupervised visitation, including alternating weekends, holidays, and four weeks in the summer. The court’s opinion discussed Billy’s drug use and failed drug tests, but the court did not explain why supervision of his visitation was no longer necessary. Nor did the court require Billy to take any additional drug tests. Christina argues that the chancery court abused its discretion by permitting unsupervised visitation.
¶68. As stated above, in setting the terms of visitation, the chancery court “must keep the best interest of the child as [the court’s] paramount concern.” Harrington, 648 So. 2d at 545. Here, the chancery court initially restricted Billy’s visitation because of concerns about his drug use, and Billy continued to test positive for methamphetamine—and never passed a single drug test. Nonetheless, in its final judgment, the chancery court awarded Billy unsupervised visitation. Moreover, the court did so without providing any explanation as to why supervision was no longer necessary. For the reasons discussed above, it is necessary for us to reverse and remand the case on other grounds. We further hold that on remand the chancery court must determine whether unsupervised visitation is consistent with the children’s best interests and whether supervision is necessary to avoid harm to the children. It has been more than a year and a half since the final judgment was entered, so the chancery court should consider evidence regarding Billy’s exercise of unsupervised visitation during that time and the “circumstances at the time of the remand hearing.” Vaughn v. Davis, 36 So. 3d 1261, 1267 (¶18) (Miss. 2010). The court may also consider whether Billy should be required to submit to additional drug tests. See McLemore, 762 So. 2d at 322 (¶19).
Most of the heavy lifting in these cases is done by the side looking to impose restrictions on visitation. This case gives you a blueprint for the type evidence that the COA is looking for in the record to justify restrictions.
On the other hand, if you’re fighting restrictions and you feel that the chancellor has not sufficiently justified the non-imposition, file a R59 motion and make a request per R52(b) for the court to amend its ruling to make additional findings that support it.
April 10, 2017 § Leave a comment
A New York court awarded Allison Estes custody of her minor son and authorized her move to Mississippi. Kevin McKeown, the father, was awarded visitation, and he was obligated to provide Allison with notice of visitation, an itinerary, and the address where he would be staying during visitation.
Following several visitations in which Kevin did not provide advance notice or the required information, Allison filed suit in Mississippi. There was a period in which process repeatedly failed, until Kevin was personally served. He then entered an appearance pro se, and made several objections to jurisdiction. Kevin did not attend the trial, at which he was found in contempt. The chancellor also suspended visitation until Kevin would produce proof of residence, and imposed the condition that visitation could not be exercised without proper notice. He also assessed Kevin with $2,200 in attorney’s fees. Kevin appealed.
In McKeown v. Estes, decided March 7, 2017, the COA affirmed. Judge Barnes addressed the issue of limitations on visitation for the court:
¶23. Finally, Kevin claims that the chancellor showed “little regard to the best interest of [the child], [and] bias and poor discretion in ignoring the ‘totality of the circumstances.’” Kevin does not elaborate regarding how the chancellor allegedly showed bias or ignored the totality of some unspecified circumstances. In any event, Kevin cites Ash v. Ash, 622 So. 2d 1264, 1266 (Miss. 1993), as support for his very brief claim.
¶24. Ash did not involve modification of visitation conditions. Instead, Ash followed an order modifying custody of a child. Id. at 1265-67. The mother’s “continued refusal” to allow the child to visit his father led to custody modification. Id. at 1266. But Ash does not support Kevin’s claim that the chancellor erred by modifying certain conditions of Kevin’s visitation. Kevin does not argue that the modified conditions are unreasonable. Moreover, Kevin does not attempt to explain how those conditions are somehow contrary to the child’s best interest, or how they could negatively impact his relationship with his son.
¶25. “To modify a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child.” Moreland v. Spears, 187 So. 3d 661, 666 (¶17) (Miss. Ct. App. 2016). “The chancellor is granted ‘broad discretion’ in visitation determinations[,] and [an appellate c]ourt will not reverse a chancellor’s findings of fact so long as they are supported by substantial evidence in the record.” Wilburn, 991 So. 2d at 1194 (¶20). “[T]he best interest of the child is the main concern in determining visitation.” Id. at (¶23).
¶26. Allison testified that the New York visitation order was not working because Kevin was not complying with it, and there were no consequences for his noncompliance. When he provided late, last-minute notice that he would exercise his summer visitation, it was difficult to prepare their child for his long interstate trip. Kevin also failed to return the child when he said he would; so the child missed activities that had been scheduled in advance. Additionally, Allison was not able to contact the child during Kevin’s visitation, and Kevin would not disclose the child’s location. Modifying the visitation order to provide specific provisions rather than ones that are flexible and vague was in the child’s best interest, because it tends to foster a more positive and harmonious relationship between Allison and Kevin. See Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). Consequently, we find that the chancellor did not act contrary to the child’s best interest, and it was within his discretion to modify the New York visitation order.
¶27. We recognize that “[a]bsent extraordinary circumstances, the noncustodial parent during visitation should have broad authority and discretion with respect to the place and manner of visitation.” Jaggers v. Magruder, 129 So. 3d 965, 969 (¶21) (Miss. Ct. App. 2014). The chancellor’s decision does not impact Kevin’s broad authority and discretion regarding where he takes his son during his visitation periods. He must simply inform Allison where he will be exercising it, and provide her with adequate notice before he does so. Considering the distance between Oxford and New York City, those conditions are not unreasonable. This issue is meritless.
This case highlights the broad authority of a chancellor to the often vexatious conflicts that arise over visitation. Conditions and restrictions may be imposed where reasonable and necessary to address the problems with visitation.
October 14, 2015 § 4 Comments
In a post back in 2011, we visited the topic of restrictions on overnight romantic guests when the child is present. The case back then was Howell v. Turnage, about which you may read at the link. It enforced the MSSC’s holding that, before a chancellor may impose an injunction against such conduct, there must be some evidence that there is an adverse effect on the child, and an extramarital relationship is not per se an adverse effect.
The question whether a chancellor could restrict the presence of an overnight guest arose in the COA’s decision in Carter v. Escovedo, handed down September 29, 2015. The court affirmed the chancellor’s order awarding custody Kylee Escovedo to her father, Marion, and restricting visitation of the mother, Cleondra Carter, to prohibit romantic overnight visitors, stating that there “shall be no overnight visitors of the opposite sex (or of an intimate nature) unless related by blood or marriage while the child is present.” Judge Maxwell’s opinion held that the restriction was supported by the proof, and affirmed the chancellor’s ruling:
¶32. “Visitation should be set up with the best interests of the children as the paramount consideration, keeping in mind the rights of the non-custodial parent and the objective that parent and child should have as close and loving a relationship as possible, despite the fact that they may not live in the same house.” Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss. 1992) (citing Clark v. Myrick, 523 So. 2d 79, 83 (Miss. 1988)). This is why “[v]isitation and restrictions placed upon it are within the discretion of the chancery court.” Id.
¶33. Our supreme court has held “an extramarital relationship is not, per se, an adverse circumstance.” Id. (quoting Morrow v. Morrow, 591 So. 2d 829, 833 (Miss. 1991)); Ballard v. Ballard, 434 So. 2d 1357, 1360 (Miss. 1983). So to restrict visitation of overnight guests of the opposite sex, there must be “something approaching actual danger or other substantial detriment to the children.” Id. (emphasis added) (quoting Cox v. Moulds, 490 So. 2d 866, 868 (Miss. 1986)). Indeed, restrictions should be imposed when circumstances present “an appreciable danger of hazard cognizable in our law.” Id. (quoting Newsom v. Newsom, 557 So. 2d 511, 517 (Miss. 1990)). If the presence of a lover would be detrimental to a child, restrictions may be appropriate. Id.
¶34. The chancellor was concerned Carter was “bringing a lot of different men around [Kylee] or sleeping with men with [Kylee] in the same bed.” Carter lived in a one-bedroom apartment and admitted she had allowed men to sleep in the bed with both her and Kylee. Of particular concern was one of Carter’s boyfriends, Michael.
¶35. Wendy Ward, Kylee’s therapist, testified that Kylee suffered from anxiety. And Kylee had confided in Ward that she was scared of Michael. Ward testified that Kylee feared Michael when he “was mean.” According to Kylee, Carter and Michael had fought in front of her, and Michael “made her feel scared and mad.” Because of Kylee’s anxiety over this boyfriend, Ward recommended neither party should have “romantic relationships spending the night when Kylee is present.”
¶36. While we recognize our supreme court has not condoned per se visitation restrictions of overnight guests of the opposite sex, it is clear that such restrictions are in fact necessary when justified. And here, much of the chancellor’s focus honed in on her duty to look out for the best interests of a then three-year-old girl. Based on Carter’s admission of sharing her bed with Kylee and overnight romantic guests, and the therapist’s testimony that Carter’s boyfriend’s presence was detrimental to Kylee, we find the chancellor tailored this prohibition to minimize the detriment to Kylee. We thus find the chancellor did not abuse her discretion in prohibiting overnight nonfamilial opposite-sex guests when Kylee is present.
Here, the lawyers did a nice job at trial of getting adequate evidence in the record to support the chancellor’s finding that there was an adverse effect, and that the restriction was necessary for the best interest of the child.
If you want such a restriction to stand up on appeal, you can’t rely on the mere fact of an overnight visitor. You have to put on proof that the presence of the visitor is having an adverse effect.
Another post on how restrictions on visitation are viewed with disfavor can be found here.
April 28, 2015 § 1 Comment
It’s pretty hard to say “No” to a distraught mother who wants to modify custody or visitation because she is concerned that her 8- and 6-year-old boys are imperiled by the father who is letting the children ride a mini-4-wheeler during his custodial time, and is allowing the children to do things like: running barefoot all over his farm; playing down by the pond where the children might fall in or get swallowed by a water moccasin; or riding a pony; or riding in the back of a pickup or on a trailer across the pasture to and from the chicken houses; or jumping from the hayloft into the hay below.
That’s the fact pattern that a mom alleged against my client back in the 1990’s. A very wise chancellor observed that what town children are allowed to do is quite different than what “our country cousins” experience, and, in the absence of specific evidence that any of the children were actually endangered, he would not change anything.
That same principle came into play in the case of Nurkin v. Nurkin, decided April 7, 2015, in which Caroline Nurkin had complained to the chancellor that her ex-husband Brad was endangering their son during visitation by flying him to and from visitation in a private plane. The chancellor enjoined Brad from transporting the child in a private aircraft, and Brad appealed. Here’s what Judge Lee said for the unanimous court:
¶13. Brad cites to Mord v. Peters, 571 So. 2d 981 (Miss. 1990), to support his position. In Mord, the chancellor restricted the father’s ability to fly his children in his private plane. Id. at 983. The Mississippi Supreme Court reversed the chancellor’s decision and found that absent any showing that flying with the father would be dangerous or that the father was acting without concern for the children’s well being, neither the mother nor the chancellor had the right to restrict the children’s activities during visitation with their father. Id. at 984-85. In this instance, there was no testimony other than Caroline’s unfounded fears that Brad’s operation of a plane would endanger Jake’s life. As the supreme court stated in Mord, “Were we to affirm the chancellor’s position . . . endless litigation possibly would result. We can imagine custodial parents coming to court based on unjustified fears and apprehensions and attempt[ing] to prohibit their children from learning how to drive, fish, hunt[,] or swim when a non-custodial parent is exercising his . . . visitation.” Id. at 986. Furthermore, Brad testified that Jake enjoyed flying with him. There was no testimony that Jake was scared or anxious when flying.
¶14. “A non-custodial parent may determine which extracurricular activities the child participates in during visitation, including certain activities of which the custodial parent disapproves.” Givens v. Nicholson, 878 So. 2d 1073, 1076 (¶14) (Miss. Ct. App. 2004). Finding the chancellor’s decision erroneous, we reverse and render on this issue.
Of no particular relevance, but of minor interest, is that the appellant in Mord was and is a practicing attorney in Mississippi.
The main point is that restrictions on visitation, and in particular on the visiting parent’s conduct with the child, are not favored in our law. A few bullet points:
- The overnight boyfriend or girlfriend. Absent some objective proof of adverse effect on the children, the ancient custom of enjoining overnight guests of the opposite gender to whom the parent is not related by blood or marriage is no longer allowed. See, Harrington v. Harrington, 648 So.2d 543, 547 (Miss. 1994); Robinson v. Robinson, 722 So.2d 601, 605 (Miss. 1998).
- Restrictions on religious practices are always suspect and rarely upheld. A visiting father was permitted to take his child to a snake-handling church service, so long as the child was not permitted to touch or get within danger of being bitten. Harris v. Harris, 343 So.2d 762 (Miss. 1977). Even a chancellor’s comment about a parent’s religious beliefs may call a chancellor’s ruling into question. See, e.g., Muhammad v. Muhammad, 622 So.2d 1239 (Miss.1993).
- Professor Bell lists several other categories in which restrictions on visitation have been upheld to a greater or lesser extent: abusive behavior; family or spousal violence; dangerous conduct; emotional abuse; potential kidnapping; imprisonment; mental health issues; poor parenting r household conditions; sexual conduct; and interference with visitation. D. Bell, Bell on Mississippi Familly Law, 2nd Ed. § 12.08[a] through [i] and .
These can be issues that are fraught with emotion, and it’s not easy to persuade your client that a futile trip to court is not in his or her, or the child’s, best interest. The more you know about this area, the better equipped you’ll be to advise your client.