Child Custody (Part III)—What if something changes after the divorce. Can child custody be modified?
Can the judge change custody after the divorce?
The short answer is it depends. According to Mississippi courts, the test for modifying child custody is that the non-custodial parent must prove by a preponderance of the evidence (more likely than not):
- That a substantial change in circumstances has transpired since issuance of the custody decree;
- That this change adversely affects the child’s welfare; and
- That the child’s best interest mandates a change in custody.
In making the determination, the chancellor must consider the “totality of circumstances.” Again, the chancellor reviews the evidence concerning the first two factors. If the evidence is sufficient, then the chancellor determines whether the child’s best interest mandates a change using the Albright factors (see previous post). As the Mississippi Supreme Court has said, not every change in circumstances is so adverse that it warrants a custody modification. One parent moving out of state or one parent remarrying is not grounds alone for modification of custody. Further, the material or substantial change in circumstances must be in the custodial home.
A question which arises is whether the conduct must adversely affect the child’s welfare or can it just have the potential to adversely affect the child’s welfare. The Mississippi Supreme Court answered that question in late 2006. In McSwain v. McSwain, the mother was originally granted custody. After the divorce, she developed a drug addiction problem and eventually remarried. During this time, she and her present husband had some marital discord resulting in some physical fights. Her ex-husband sought to gain custody of their child. The chancellor ruled in his favor. However, the Mississippi Court of Appeals reversed the chancellor’s ruling finding that the “material changes in circumstances” were not “continuous and no longer existed at the time of the trial.” The father appealed to the Mississippi Supreme Court.
The Mississippi Supreme Court, in reversing the Court of Appeals, agreed the chancellor could consider “potential” adverse affects upon the child’s welfare. The mother’s addiction problem, which arose after the divorce, satisfied the test for modification of custody even though she was sober at the time of the hearing. Coupled with the mother’s marital discord, there was sufficient evidence for the chancellor to find that a change in custody was mandated.
The modification of an existing child custody order, just as the original determination of child custody, is largely driven by the facts of each case. The chancellor is given a lot of discretion in making a determination and courts are reluctant to overturn the chancellor's decision. Therefore, you should consult a lawyer to determine whether your situation is one which meets the legal test in Mississippi.
