visitation | The Better Chancery Practice Blog

Visitation Behind Bars

February 27, 2018 § 1 Comment

Nolana Griffin, a school teacher, was convicted of having sexual relations with several of her teenaged students, and was sentenced to Parchman. After a couple of years, her husband, Chad, sued for divorce and, following a contested trial, he was granted both the divorce and custody of the parties’ four daughters, one of whom had Asperger’s Syndrome. The children ranged in age from 15 to 7. The chancellor also found that regular visitation with Nolana was not in the children’s best interest. The chancellor offered five bases for his decision:

All of the visitation would have to occur at Nolana’s prison;
The prison is 4 1/2 hours distant from the children’s residence;
Any visit would require that all parties, including the children, would have to be searched before entering;
The visitation area is open and may expose the children to violent offenders;
The best interest of the children would not be served by exposing them to these conditions.

Nolana appealed.

In Griffin v. Griffin, a MSSC decision dated February 1, 2018, the court affirmed. Justice Maxwell for the unanimous court:

¶14. We have never addressed head-on the impact of a noncustodial parent’s incarceration on his or her right to visitation. The issue was raised but not reached in Christian v. Wheat. Christian, 876 So. 2d at 346. In dicta, however, we did note that “[j]urisdictions which have reached the question of visitation rights of incarcerated parents generally express that incarceration, alone, is not sufficient to preclude visitation.” Id. [Fn omitted] See also, e.g., Davis v. Davis, 648 N.Y.S.2d 742, 743 (N.Y. App. Div. 1996) (“It is generally presumed to be in a child’s best interest to have visitation with his or her noncustodial parent and the fact that a parent is incarcerated will not, by itself, render visitation inappropriate.”). Today, we follow those jurisdictions and hold that incarceration, in and of itself, is not sufficient to overcome the presumption that a noncustodial parent is entitled to visitation.

¶15. Applying this holding, we find no reversible error in the chancellor’s decision. Contrary to Nolana’s assertion, the chancellor did not base his visitation decision solely on the fact Nolana is incarcerated. Instead, with the “paramount concern” in mind, he found that, based on the circumstances, the presumption in favor of visitation had been overcome and that court-ordered, every-other-week visitation with Nolana was not in the children’s best interest. He supported his decision with substantial evidence that judge-mandated visitation may be physically and emotionally harmful to the girls. The chancellor was swayed by a variety of factors. One was the physical distance the girls would have to travel twice each month (eight to nine hours round trip). Others included the requirement of a pat-down physical search, the location of the jail visits (in a communal room where potentially violent offenders were also visiting family), the oldest daughter’s social disability (Asperger’s Syndrome), and the fact Nolana’s daughters had not seen their mother since her arrest and much less that she was even incarcerated.

¶16. We note the chancellor’s decision is in line with other courts that have denied prison visitation in similar circumstances. Recently, a New York family court—after emphasizing that the law presumes visitation is in the child’s best interest, even when the noncustodial parent is incarcerated—denied an incarcerated father visitation with his son with autism, a social disorder related to Asperger’s Syndrome. E.A. v. R.A., 56 N.Y.S.3d 815, 820 (N.Y. Fam. Ct. 2017). The court found the presumption in favor of visitation had been rebutted by evidence of social stress the prison visit may have on his son, the fact the child may be stripsearched, the four-hour drive, and that the son had not seen his father since his incarceration. Id. See also Davis, 628 N.Y.S.2d at 743 (affirming the family court’s decision to deny an incarcerated father visitation based on the “militating evidence” prison was three-and-a-half hours away and child had medical condition making it unwise for him to travel away from
home frequently).

¶17. In Louisiana, an incarcerated father was likewise denied visitation. Davis v. Davis, 494 So. 2d 1315, 1318 (1986) (La. Ct. App. 1986). The father had been sent to prison in Texas for sexually assaulting his children’s twelve-year-old babysitter. Like Nolana, he requested Saturday morning visitation, twice monthly, but was denied. On appeal, the Louisiana Court of Appeals agreed that bi-weekly visitation with their father “would prove traumatic for children of their tender years,” especially considering the distance to be traveled (as in this case, a four-and-a-half hour drive one way), the recentness of the conviction, the security measures the children would undergo, and the children’s relationship to their father’s victim. Id. Thus, the court could not “say that the trial court abused its great discretion in concluding that at this time the children’s best interests would not be served by allowing such visitation.” Id.

¶18. The Louisiana court, however, was quick to caution that it “d[id] not mean to imply that the father has forfeited his right of visitation.” Rather, it viewed the trial court’s ruling “more akin to a suspension of the father’s visitation privileges until such time as it would be easier for the children to cope with the strain inherent in this situation.” Id. “In denying visitation at this time, but allowing the father to correspond with the children,” the appellate court believed the “trial judge has attempted to provide a means for the father to re-establish a relationship with the children gradually.” Id. The hope was to work toward a situation “where limited visitation will prove acceptable.” Id.

¶19. The chancellor here similarly provided a means for Nolana to maintain her relationship with her daughters with the eventual goal being visitation. He granted Nolana substantial phone visitation. She was also to be kept informed by Chad of the goings-on in her children’s lives. And the chancellor encouraged Chad to allow his daughters to visit their mother if and when Chad determined it appropriate.

¶20. This Court has recognized “that children of divorced parents should be encouraged to have a close, affectionate and, under the circumstances, as normal as possible a parent-child relationship.” Cox, 490 So. 2d at 870 (emphasis added). And based on the facts before him, that is what the chancellor tried to do. The chancellor considered Nolana’s circumstances and deemed phone visitation, for now, and possible future in-person visitation at Chad’s discretion was the best possible balance between recognizing Nolana’s constitutionally protected rights, encouraging the parent-child relationships, and protecting the girls’ best interest. See Harrington, 648 So. 2d at 545. Therefore, the chancellor’s
decision is entitled to the “great deference” this Court typically gives chancellors when determining visitation. Newsom, 557 So. 2d at 515.

¶21. Because of this deference, we affirm the divorce decree, which included no court ordered visitation with Nolana.

The only rule that can be drawn from this is that every parent is presumptively entitled to visitation, and incarceration alone does not overcome that presumption. To limit visitation with a jailed parent, there must be facts, as here, that support a finding that the conditions of visitation are against the best interest of the children and warrant limitation or suspension of visitation. There can be no one-size-fits-all solution. Each case will depend on the conditions of incarceration, the procedures for visitation involving the children, distance and travel conditions, and the children’s specific needs.

Beyond the Scope of the Pleadings

July 5, 2017 § Leave a comment

It’s fundamental that, if you want relief, you have to ask for it (or pray for it, in chancery parlance). There are scads of cases on the point. The only two exceptions that I am certain of are: (1) where an issue is tried without objection and a motion to amend the pleadings to conform to the proof is timely made per MRCP 15; and (2) where the chancellor fashions ancillary relief in order to afford the relief requested.

In the recent COA case In the Matter of C.T.; Taylor v. Timmons, decided June 6, 2017, the chancellor modified visitation even though no one asked for that relief. The appellant argued that the modification was beyond the court’s authority, since no one had pled for it. The COA affirmed, with Judge Lee writing for the unanimous court:

¶16. Taylor argues that the chancellor’s modification was an abuse of discretion because neither party requested the modification or presented evidence that the visitation schedule was not working. However, the record is replete with evidence that the visitation schedule was not working. Though neither party petitioned the chancery court for modification of visitation, Taylor did file a petition for contempt, asserting that he was not getting visitation with the child. Taylor also testified extensively that he was unable to visit with the child. Timmons testified that she had not denied Taylor visitation, but that she had begged Taylor to visit with the child. The chancellor also noted that there was some confusion between the parties regarding the details of visitation under the agreed order. As such, there was a clear showing that the prior visitation order was not working, and the chancellor’s finding that a modification was necessary was supported by substantial evidence. Given the chancellor’s “broad discretion to determine the specific times for visitation,” the chancellor did not abuse his discretion in modifying the visitation schedule. Moreland v. Spears, 187 So. 3d 661, 666 (¶17) (Miss. Ct. App. 2016) (citation omitted). This issue is without merit.

No doubt the chancellor was being practical and was attempting to solve as many of these people’s conflicts as he could in one stab.

I don’t think one could argue convincingly, though, that the visitation modification was directly related to the relief sought. Take this case as support for the proposition that the appellate courts will generally defer to a chancellor acting as problem-solver. But be forewarned: there are cases going the other way.

Fixing Visitation

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.

Non-Custodial Dangers

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 extra[]curricular 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[4][a] through [i] and [5].

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.

Trifling with Visitation is no Trifling Matter

February 2, 2015 § Leave a comment

Some of the most bothersome and galling matters with which family lawyers have to contend are problems with visitation. They can include outright denial of visitation, conflicts during exchanges, interference during visitation, refusal to return a child, and every other atrocity one can conjure up. Those calls on the weekend and in the evenings can wear one to a frazzle.

In the case of Ash v. Ash, 622 So.2d 1264 (Miss. 1993), the MSSC affirmed a chancellor’s modification of custody based on a mother’s obstinate refusal to allow visitation and non-compliance with court orders, which the court described as involving the attention of “two prior chancellors and six attorneys” in more than ten court proceedings before the modification judgment.

In the case of Strait v. Lorenz, handed down January 6, 2015, the COA affirmed a chancellor’s decision to modify custody based on Travis Strait’s long-standing denial of visitation to his ex-wife, Kristy Lorenz. The parties had agreed in their irreconcilable differences divorce that they would share joint legal custody of their daughter, Jane, and that Travis would have “primary physical custody.”

Following the divorce, Kristy filed five times for modification and/or contempt, alleging denial of and interference with visitation in most of the actions. Travis filed actions in California and Hawaii for TRO’s, both of which were vacated. The chancellor in Mississippi denied Travis’s efforts to dismiss for lack of jurisdiction or to remove the case from Mississippi based on forum non conveniens.

In her pleadings, Kristy charged that Travis had sexually abused Jane, so the chancellor appointed a GAL to investigate. The GAL’s report was unfavorable to Travis, and, on Kristy’s motion, the chancellor entered an emergency temporary order changing custody to Kristy until the final hearing.

The chancellor awarded Kristy custody and other relief, and Travis appealed.

On the issue of material change, Judge Griffis of the COA said this:

¶27. In Ash, the chancellor issued various visitation-related restraining orders, emergency orders, and modification orders over the course of five years. Id. at 1265. The non-custodial parent then filed another motion to change custody and find the custodial parent in contempt. Id. The chancellor granted the motion, finding a material change in circumstances had occurred. Id. In affirming the chancellor’s ruling, the supreme court found that the visitation dispute was tackled by “two prior chancellors and six attorneys, [and] more than ten court proceedings,” none of which resolved the issue. Id. at 1266.

¶28. The facts in this action are comparable to Ash. As in Ash, the chancellor here contemplated liberal visitation, which was deliberately denied. See id. Also, there was an “onslaught of pleadings . . . stemming from visitation problems,” none of which were resolved by the chancellor’s orders. Id. at 1265.

¶29. Travis admittedly ignored Kristy’s attempts to contact him and would not allow Jane to take Kristy’s phone calls. The chancellor encouraged communication between Kristy and Jane through email and mail, but Travis disabled Jane’s email account that Kristy had created for her and there was testimony that Jane did not receive cards mailed to her. We cannot find the chancellor erred in finding the repeated failure to comply with visitation order was a material change in circumstances, for which contempt orders would not resolve.

¶30. Travis argues that the lack of visitation was not a “change in circumstances,” but rather a foreseeable, continued animosity between the parties that existed from the time of divorce. We cannot find that the chancellor anticipated, at the time of the divorce decree, that Travis would continuously refuse to comply with the visitation orders. Also, we note that no a single act of denying visitation amounted to a material change in circumstances. Rather, as in Ellis [v. Ellis, 952 So.2d 982 (Miss App 2006)], it was the “continued violation of court orders pertaining to visitation and continued hindering of the visitation time” that amounted to a material change in circumstances. Ellis, 952 So. 2d at 990 (¶17) (emphasis in original). Given the severity of the denial of visitation, we cannot find the chancellor abused his discretion in finding the denial of visitation was a material change in circumstances.

So the key is the “severity of the denial of visitation” which, from the cases, must be long-standing and extreme, and most likely involve repeated violations of court orders.

You should note that the proof in Strait included testimony of a mental health professional that the father’s conduct did have an adverse effect on the child. The opinion did not say so, but it apparently is not enough merely to show alienation and interference with contact; rather, the proof must show that the alienating behavior did have an adverse effect on the child, and the testimony of a mental health professional is probably the best means of doing that. In Strait, Travis’s behavior was so adverse that the chancellor characterized his custodial environment as “poisonous.”

I agree that most visitation disputes are more vexing than dangerous, and more paltry than extreme. Yet, if more parents understood that interference with visitation could lead to modification of custody, I believe it would result in far fewer visitation disputes in court.

Don’t Overlook the Practicalities when Dealing with Visitation

January 29, 2014 § 1 Comment

When Wesley and Janet Jaggers got their irreconcilable differences divorce in April, 2004, Janet got custody, and Wesley got visitation.

Soon afterward, only three months after the divorce, they agreed to a modification judgment that included the following language:

[E]ach parent shall allow the children to attend and participate in the scheduled extra-curricular activities of each child, including baseball, speech therapy, etc., it being the intention of this paragraph that the children’s regular schedules be maintained so as to provide as great a degree [of] continuity as possible.

That language sets a lofty aspiration for the parties, and its spirit is certainly commendable. But it leaves some questions unanswered, such as: who does the scheduling; what are the limits on extra-curricular activities; who gets to determine what the children’s regular schedules are?

In time conflict arose between the parties over the fact that Janet scheduled baseball games, out-of-town tournaments, and other activities of the children during Wesley’s visitation time. Wesley petitioned the court for relief.

Wesley argued that Janet’s conduct violated his sacrosanct parental right to visitation without interference. Janet invoked the polestar best-interest-of-the-child principle. Immovable object meet irresistable force.

The chancellor fashioned a remedy he deemed to be in the best interest of the children, providing for Wesley to have make-up visitation if the children’s travel schedule interfered with his visitation. The chancellor relied heavily on the parties’ own language adopted in the agreed modification judgment. On appeal, the COA affirmed in Jaggers v. Magruder, handed down January 7, 2014, deferring to the chancellor’s considerable discretion in this area.

A few desultory thoughts:

I wonder whether more attention to detail in that modification judgment might have produced a different result, or even avoided this litigation entirely. As a lawyer, you have a considerable body of experience to draw on when you draft language to solve a client’s legal problem. You know from experience what situations give rise to certain kinds of problems. Bring that experience to bear when advising your client.
I think it’s a good idea to avoid aspirational language in agreed judgments and PSA’s. Language like “The parties agree that they will do all in their power to foster good feelings and to encourage love and devotion between parent and child” just seems to me to be a recipe for future litigation.
Address the practicalities in every order or PSA dealing with visitation. Who is responsible to pick up and return? What times? Who may accompany or take the place of the visiting parent? Who decides about scheduling extra-curricular activities during visitation time? What are the conditions for make-up visitation? Yes, I know that the parties have to bring some good faith to the table, but you can ward off some bad behavior based on your experience. And I know, too, that no one can anticipate every conceivable problem, but I am not suggesting that you address every conceivable problem — only the ones you shuold reasonably anticipate you can avoid in advance based on your experience.
The issue of the boundaries of the parents’ respective rights vis a vis visitation is one of the thorniest and most difficult to resolve for any chancellor. It’s as hard for a chancellor to resolve as it is for the lawyer to offer advice. That’s because of the competing equities that almost always have almost equal weight. I am glad that the appellate courts leave these issues largely in the discretion of the chancellor rather than conjuring up formulaic solutions that don’t fit the nuances in most situations.
This case is yet another in which the chancellor did not accept or implement the recommendation of the GAL. Keep in mind that the chancellor is never bound by the GAL’s recommendations.

A Few More Suggested PSA Provisions

November 26, 2013 § Leave a comment

Here are a few more suggested PSA provisions you may find helpful, courtesy of David Rogers, Esq., of Pascagoula.

As with the previous post where I offered some suggestions for PSA provisions, there is no guarantee that any of these will be effective in any given court. They are suggestions for points you might want to cover in your own PSA’s. You may have better or other ways to state the same points.

Dealing with electronic contact in the digital age …

Telephonic/Digital Visitation – The parties agree and understand that should such means be available, during such times as the minor children is in the physical custody of the other party, the noncustodial party shall be allowed Telephonic and/or digital visitation with the minor children via telephone, electronic mail, instant messaging, video conferencing, social media, and other electronic means each and every even numbered day for a period of not more than 30 minutes total to begin no later than 7:30 p.m. in the time zone in which the minor children is/are located. Neither party shall be required to maintain electronic equipment and/or accounts necessary for said telephonic and/or digital visitation. Should the custodial parent incur and additional cellular fees as a result of the noncustodial parent’s telephonic/digital visitation, the non custodial parent shall reimburse the custodial parent for said fees within ten (10) days of receipt of the original bill from the custodial parent.

Responsibility for transportation within mileage limits …

Should the parties live within one-hundred (100) miles of each other, then Husband/Wife shall provide transportation for the minor children to and from each and every visitation.

Should the parties live apart by a distance greater than one-hundred (100) miles of each other, then the parties shall meet at a half-way point for all visitation exchanges and be responsible for their own transportation cost.

Should the parties live apart by a distance greater than (distance varies/check with client) two-hundred (200) miles of each other, then Husband/Wife’s every other weekend visitation shall be suspended until such time as the parties reside within two-hundred (200) miles of each other again.

In the event of military deployment per MCA 93-5-34 …

(a) The term “deployment” means the temporary transfer of a service member serving in an active-duty status to another location in support of combat or some other military operation.

(b) The term “mobilization” means the call-up of a National Guard or Reserve service member to extended active duty status. For purposes of this definition, “mobilization” does not include National Guard or Reserve annual training.

(c) The term “temporary duty” means the transfer of a service member from one military base to a different location, usually another base, for a limited period of time to accomplish training or to assist in the performance of a noncombat mission.

(d) The term “family member” means a person related by blood or marriage and may include, for purposes of this statute, a step-parent, grandparent, aunt, uncle, adult sibling or other person related by blood or marriage.

(e) When the custodial parent, receives temporary duty, deployment or mobilization orders from the military that involve moving a substantial distance from the custodial parent’s residence having a material effect on the non-custodial parent’s ability to exercise custody responsibilities:

(f) The non-deployed parent shall make the child or children reasonably available to the deployed parent when the latter parent has leave;

(g) The non-deployed parent shall facilitate opportunities for telephonic, “webcam,” and electronic mail contact between the deployed parent and the child or children during deployment; and

(h) The deployed parent shall provide timely information regarding the parent’s leave schedule to the non-deployed parent.

(i) If the parent with visitation rights receives military temporary duty, deployment or mobilization orders that involve moving a substantial distance from the parent’s residence or otherwise have a material effect on the parent’s ability to exercise rights, the non custodial parent’s visitation rights shall be exercised by a family member of the noncustodial parent for the duration of the parent’s absence, if delegating visitation rights is in the child’s best interest.

Helping Your Client to Ease the Pain of Visitation

September 4, 2013 § 2 Comments

Yes, I said pain. What should be a joyous reunion for the children with the non-custodial parent is often fraught with anxiety and insecurity.

That’s because the children are aware of the animosity and tension between the combatant parents. Some children have seen angry confrontations and even violence between the two persons whom they love more than anyone else. They want to have a relationship with each parent, but they are afraid to hurt the feelings of one if they show any enthusiasm for the other.

You are in a unique position to influence your clients to do a better job in making it easier and healthier for the children in these situations. Here are a few suggestions for the custodial parent:

Reassure the child that you will be okay while he or she is away. A child I spoke with years ago told me she did not want to go visit with her dad because she was worried that her mother would be lonely and sad without her. Remember that children have seen their parents sad, crying, upset and emotional during the heat of the divorce. They feel it is their responsibility to try to fix it. The custodial parent can alleviate the child’s concern by assuring him or her in the few days leading up to visitation that the parent has plenty to do, and will be happy to see the child go off for an enjoyable visit.
Let the non-custodial parent participate in the children’s lives. The transition to visitation is much easier when the non-custodial parent is not a stranger who drops in every other weekend. Encourage the children to call the other parent, to send birthday and holiday cards, to Skype every now and then, to call with news like good grades or a smiley face for good behavior in school. Let the children invite the other parent to school and church programs, sports, and award preseentations.
Leave the visitation schedule free for visitation. Never schedule outings, events, or even sports activities during the other parent’s visitation without his or her permission.
Be flexible in scheduling. Both parents should yield to the other’s reasonable requests for rescheduling due to family reunions, weddings, family holidays, and the like. If the non-custodial parent can only schedule Disney World with the children during the first week in July, why shouldn’t the custodial parent give up her July 4 holiday for some other time?
Make exchanges amicable. Leave the drama at home when it comes time to exchange the children for visitation.
Share school pictures. Get extra copies for the children to give to the non-custodial parent, the grandparents and other members of the family. The little wallet-sized and 4×6 sizes are not that expensive. Get a few copies of the order forms to give to the other parent and family so that they can order as many and whatever size photos they want.
Listen to the children’s experiences when they return home. Show interest in their experiences, and encourage them to share their enthusiasm, but never pry into what is going on in the other home or use the children as spies.
Understand that parenting styles are different, and that’s okay. The children may come home with wide-eyed tales of being able to stay up to midnight, or to watch a scary movie, or being able to eat popcorn in bed. Reassure them that the rules can be different in different places, and the important thing is that they honor the rules set down by each parent.

You can come up with some more, based on your experiences as a family lawyer. The important thing is that you are not only a legal advisor; you are a wise counselor who can help defuse and heal some hostile situations. Clients remember that kind of help when their friends ask who they would recommend in their own divorce situations.

Before someone brings it up in a comment: Yes, I am aware that sometimes the other parent is beyond reason and commits all manner of atrocities in the visitation process. That does not mean, however, that your client should not try to “wear the white hat,” and do the right thing. One one hand, it’s the best thing for the children, and it’s the right thing to do. And on the other hand, it always puts your client in a better standing with the judge when he or she has been the one to do right.

WHEN VISITATION GOES BAD

October 30, 2012 § 1 Comment

It’s becoming more customary for the parties to provide in custody settlements for the non-custodial parent to have more visitation than the usual “standard visitation” (i.e., every other weekend, split of holidays, and some summer). Sometimes it works splendidly. When it does not, it can be a mess.

The latter is what happened in the COA case of Goolsby v. Crane, decided October 23, 2012. In that case, Michael Goolsby and his ex-wife, Angela Crane, agreed that Angela would have sole physical custody, and Michael would have visitation with his daughters every other weekend, and, in addition, from Monday afternoon to the return to school on Wednesday morning in non-weekend-viaitation weeks. After a while the parties agreed to deviate from the schedule to move Michael’s mid-week visitation to Wednesday-to-Friday-morning.

Things began to unravel when Angela filed pleadings to get an increase in child support and a family master increased it by $171 a month and ordered Michael to pay DHS $250 in attorney’s fees.

Michael filed a Rule 59 motion and then filed a counter-petition to modify custody and child support. He wanted the custody changed to joint physical due to the extent of his visitation, and he wanted the child support reduced based on the amount of time he had the children with him.

At trial the chancellor rejected the modification, finding that there was no proof of a material change in circumstances that adversely affected the children to the extent that custody should be changed. He did, however, find that the visitation schedule was not working, and he modified it to conform more to “standard” visitation, eliminating the mid-week visitation. His findings were based primarily on the testimony of the testimony of the 13-year-old daughter, who said that it interfered with her school work and made her uncomfortable for some other, personal reasons. The chancellor also increased the child support, although he recalculated it and found a figure somewhat less than that determined by the family master.

Michael appealed. His arguments and the COA’s conclusions:

The court rejected the argumant that it was error for the chancellor to refuse to modify custody, and then to modify visitation. The COA pointed out that there was a substantial basis to support both decisions. All that needs to be shown to change custody is that the visitation schedule is not working, and there was ample proof here.
The extent of visitation that was agreed did not amount to a relinquishment of control or abandonment of responsibility by Angela that would amount to a material change. The cases cited by the court beginning at ¶ 22 are cases you need to have in your repertoire of important modification cases, particularly Arnold v. Conwill, 562 So.2d 97, 100 (Miss. 1990), a case I’ve discussed here before.
And, finally, the COA rejected (beginning at ¶ 29) Michael’s argument that liberal visitation by the non-custodial parent is tantamount to joint legal custody.

When you craft an agreement incorporating visitation that extends beyond the usual, make sure the language leaves no doubt as to who has what form of custody. Don’t swap around terms like “visitation” and “custodial time.” Instead of simply going along with what your client is proposing for visitation, play devil’s advocate and tease out some of the possible pitfalls that you’ve experienced and that your client may not even have thought of. Are there other ways to provide more time for the non-custodial parent that might not be so disruptive as they proved to be in Goolsby? One size does not fit all.

SOME RANDOM THOUGHTS ON VISITATION

June 7, 2011 § Leave a comment

The visitation awarded to the non-custodial parent should be such as will foster a positive and harmonious relationship between parent and child. Wood v. Wood, 579 So.2d 1271, 1273 (Miss. 1991).
The chancellor has broad discretion in fashioning visitation, keeping in mind the best interest of the child, the rights of the non-custodial parent, and the need to maintain a healthy, loving relationship between the non-custodial parent and the child. Harrington v. Harrington, 648 So.2d 543, 545 (Miss. 1994).
The chancellor should specify the terms for visitation. Lauro v. Lauro, 924 So.2d 584, 591 (Miss. 2006). The visitation rights should be defined and fixed so as to avoid chaos. Brown v. Gillespie, 465 So.2d 1046, 1049 (Miss. 1985).
Overnight visitation is the rule, not the exception. Cox v. Moulds, 490 So.2d 866, 870 (Miss. 1986). The non-custodial parent is presumptively entitled during reasonable times to overnight visitation with the child. Harrington at 545.
The chancellor may place restrictions on visitation in circumstances where there is “an appreciable danger of hazard cognizble in our law.” Newsom v. Newsom, 557 So.2d 511, 517 (Miss. 1990). Any restriction must be shown to be necessary to avoid harm to the child. Dunn v. Dunn, 609 So.2d 1277, 1286 (Miss. 1992); Harrington, at 545; and Howell v. Turnage (Miss. App. 2011), at ¶ 16. A post discussing Howell v. Turnage is here.
In order to modify visitation, all that needs to be shown is that the prior order for visitation is not working, and that modification is in the best interest of the children. Suess v. Suess, 718 So.2d 1126, 1130 (Miss. App. 1998).

Where Am I?