Change in custody denied in Mississippi case
Proof needed in change of custody suit
This week the Mississippi Court of Appeals upheld a DeSoto County chancellor’s denial of a father’s request for change of custody. In Lewis v. Lewis, the mother was granted custody of the couple’s three children when they divorced. Fourteen months later, the father moved for a change of custody. The father had remarried and claimed to have a more stable home environment than his ex-wife. He also thought there were several negative changes at his ex-wife’s since the divorce. The ex-wife’s boyfriend and her youngest son had a physical altercation (the evidence showed he grabbed the boy’s arm once); the son was in counseling; another child was acting out and vandalizing property; and the son was three grade levels behind in school for reading. The father also thought his ex-wife’s boyfriend had a negative influence on the children by spending too much time at her house and making sexual advances towards the mother in the presence of the children. He also alleged that the children spent too much time in their grandmother’s care.
As stated in a previous post, the key in a change of custody is to show a material change in circumstances since the previous custody order which adversely affects the child’s welfare. There is no bright line rule as to what constitutes a material change in circumstances. In this case, a number of factors worked against the father.
First, the court appointed a guardian ad litem who recommended custody remain with the mother. Essentially, a guardian ad litem is an independent attorney appointed by the court to represent the children’s interest. They will investigate the case and give a report back to the court as to what is in the best interest of the children.
Second, the father was not able to prove a material change in circumstances—the first hurdle in changing custody. He was unable to show that the child’s need for counseling or his drop in grades was due to his mother’s home environment as opposed to other factors. You must be able to offer sufficient proof to the chancellor.
Third, as to the mother’s boyfriend grabbing the child by the arm, the Court of Appeals reiterated the Supreme Court’s decision in Tucker v. Tucker, 453 So.2d 1294 (Miss. 1984). In Tucker, the court held that “[a]n isolated incident, e.g., an unwarranted striking of the child, does not in and of itself justify a change in custody.” Rather, the chancellor must find that the “overall circumstances in which the child lives have materially changed.” Tucker at 1297.
Finally, this case also reiterates the rule in Mississippi that a material change in the non-custodial parent’s life does not warrant a change in custody. The exception to this rule, a narrow one, only applies “if the custodial parent’s home environment is found to be contrary to the child’s best interest and the non-custodial parent’s home environment has improved and surpassed that of the custodial parent, so that it is now in the best interest of the child to live with the non-custodial parent.” However, the chancellor and Court of Appeals found this exception inapplicable since the father failed to prove his allegations of material change in the custodial parent’s home.
Change of custody cases are factual dependent and a lot can depend on the chancellor your case is presented to. While judges may differ on whether a change in custody should be granted, the Court of Appeals can only reverse a chancellor’s decision if it finds the decision "clearly erroneous"—a difficult standard to overcome. In my next post, I will talk about another aspect in this case--the testimony of the two oldest children.
