The Better Chancery Practice Blog

And boyfriends, too, for that matter.

It has long been a widespread practice in chancery court to enjoin the parties from having a girlfriend or boyfriend spend the night when the minor children are present.  This language is lifted from a recent judgment in this district:

“The parties are each enjoined from having a person of the opposite sex, to whom the party is not related by blood or marriage, present at any time between the hours of 9:00 p.m. and 9:00 a.m. when the minor children are present.”

The expected beneficial effect being that the children are not exposed to an inappropriate relationship and modelling of improper behavior.  Seems like a worthwhile goal.

I have heard it questioned from time to time whether the court has authority to enter such an injunction in the face of some case law that discourages restrictions on visitation. 

The matter may have been resolved in Howell v. Turnage, decided March 1, 2011.  In that case, the chancellor had applied the familiar injunction, and the COA reversed his decision.  Here’s what the COA said:

“At the close of the modification hearing, the chancellor voiced concern regarding Hannah’s visiting Mitchel’s home when his girlfriend was also spending the night. Consequently, the chancellor restricted Mitchel’s visitation with his teenaged daughter, Hannah. Specifically, the chancellor prohibited overnight visitation with Hannah “in any dwelling where a member of the opposite sex, to whom [Mitchel] is not related is also spending [the] night.”

¶16. The chancellor has broad discretion in determining visitation and imposing restrictions upon it. Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss. 1992). However, absent a finding of ‘actual danger or other substantial detriment to the children,’ a chancellor may not restrict a non-custodial parent’s visitation. Id. There was absolutely no evidence in the record that overnight visits in the presence of Mitchel’s girlfriend adversely affected Hannah. Therefore,the chancellor abused his discretion in placing a restriction on Mitchel’s visitation.”

Dunn, you may recall, is the case where the chancellor had entered a broad injunction against the husband ever having the minor children in the presence of the woman with whom he admitted having an adulterous affair.  The injunction lumped together innocuous conduct such as attending church or a concert, dining out at MacDonald’s, or grocery shopping, with questionable and even outrageous conduct such as kissing, sleeping in the same bedroom, engaging in sex, and walking around the house in negligees.  No rational person can question that there is a considerable distinction between the two kinds of conduct.    

The Howell v. Turnage case was not remanded for the chancellor to hear whether there might be any such proof. It was rendered outright on the point.  So the message we are to draw, apparently, is that the door is closed on such injunctions unless there is proof that the girl/boyfriend’s presence adversely affects the child.

Strictly my own opinion:  This kind of living arrangement is probably standard operating procedure in the “sophisticated” big cities like Jackson, but I don’t think this will go over too well with the more respectable folks in New Hebron and Monticello, or in Quitman, Meridian, Zero or Shubuta, for that matter.  Folks in these more “backwards” areas think that exposure of children, especially impressionable children in their early teenage years, to that kind of situation is per se harmful to them.  And I guess I am old fashioned enough to see their point.  I wonder why the COA could not have simply said that such a restriction, minor as it is, is reasonable. 

Ironically, if the chancellor is weighing the best interest of the child under the Albright factors, she can consider behavior such as allowing an overnight guest of the opposite sex in the presence of the children as a negative under parenting skills or moral fitness, but when it comes to proscribing such conduct, now we are going to tie the chancellor’s hands?  Maybe it’s just me, but that doesn’t make much sense.  And it certainly doesn’t seem to put the best interest of the child first. 

From a practice standpoint, if you’re pursuing that injunction, don’t just assume some harm to the children.  Put on some proof about how it is harmful from a behavioral, moral and any other standpoint.  At least that way there will be proof in the record to support a finding, and the appellate court will have to decide whether behavioral or moral harm to a child is something that the public policy of Mississippi wants to guard against or not. 

There is nothing in the holding of this case that says that agreed injunctions can’t be enforced.  Negotiating such a provision now, however, will likely be more difficult.