Archive for the ‘One Without the Other? – Domestic Violence Divorce and Child Custody’ Category

One Without the Other? – Domestic Violence Divorce and Child Custody

Tuesday, May 9th, 2017

As has been discussed in this blog and often in recent Mississippi news, the state now allows divorces to be granted for the grounds of domestic violence. While this is certainly a victory for abused spouses of Mississippi, the question now arises of how this will affect child custody decisions made by courts in the wake of a divorce granted on these new grounds. While we believe we know the answer, it is important for Mississippians to know the possible avenues that a court may take.

The amendment to the grounds for divorce as approved by Governor Phil Bryant add the following language to the ground for habitual cruel and inhuman treatment:

Seventh. Habitual Cruel and inhuman treatment, including spousal domestic abuse. Spousal domestic abuse may be established through the reliable testimony of a single credible witness, who may be the injured party, and includes, but is not limited to: That the injured party’s spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party, or that the injured party’s spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or That the injured party’s spouse engaged in a pattern of behavior against the injured party of threats or intimidation, emotional or verbal abuse, forced isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking as defined in Section 97-3-107, if the pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.”

When courts make decisions regarding child custody, they use the factors from Albright v. Albright, which laid out thirteen factors for custody decisions, the most important of which being what is in the best interest of the child. Those factors are available for your viewing elsewhere on our website. The question that the law faces with the passing of this domestic violence amendment is whether the offender in a divorce granted for domestic violence is presumed unfit to have custody of children, or if that behavior is simply another Albright factor.

One major question that could impact a court’s decision is the level of domestic violence that is required for this presumption to be created. Habitual cruel and inhuman treatment, long a ground for divorce in Mississippi, allows for a divorce to be granted for that treatment after only one instance. Kumar v. Kumar, 976 So.2d 957, 961 (Miss. Ct. App. 2008). While this may be enough to award a spouse a divorce, is it enough to rather automatically award that spouse custody as well? This may be an instance where a court would use the evidence of that treatment that granted the divorce as an additional factor in a custody matter as opposed to a mechanical application of the law.

A more recent development in this question is the language to the domestic violence amendment that allows a divorce for the use of nonphysical behavior towards a spouse such as threats, intimidation, emotional or verbal abuse, and even stalking. While these behaviors certainly affect the relationship between spouses, does that behavior go far enough to create a rebuttable presumption that the offender is unfit to care for their own children? Mississippi courts will soon have to decide.

Another question still is the proper standard of review that courts should use when making these determinations. In child custody cases, a chancellor’s findings will not be reversed unless manifestly wrong or the improper legal standard was applied. Mabus v. Mabus, 847 So.2d 815, 818. The Mississippi Code provides some guidance as to custody and domestic violence, stating that in a child custody proceeding, “there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody of a parent who has a history of perpetrating family violence.” Miss. Code Ann. § 93-5-24(9)(a)(i). You will notice the statute includes the word “history” when speaking of domestic violence. Courts will have to decide whether that “history” can be established by one instance, such as in divorces for cruel and inhuman treatment.

With that language, it would seem that the rebuttable presumption would arise the same way during a custody proceeding following a divorce on domestic violence grounds. Our feeling is if a chancellor awarded custody of a child to a parent that has been implicated in a domestic violence incident, that most courts would see that decision as “manifestly wrong,” and therefore would overturn that chancellor’s decision. In addition to lowering judicial economy stemming from appeals of those errors, this would not be fair to any minor involved.

While this domestic violence amendment obviously makes huge strides in the realm of the grounds for divorce in Mississippi, it remains to be seen what effect it has on child custody decisions. In our opinion, that rebuttable presumption will still arise, and courts will take domestic violence as grounds to not award custody to the offending party in such a matter. This practice seems to be more in line with the polestar consideration of child custody matters, which is the best interest of the child. Our office will be glad to consult with you regarding matters such as these, and with any other domestic matter you may face. Please feel free to contact our office at 601-573-7429.

Kenneth B. Davis, Mississippi College School of Law J.D. Candidate 2017, Law Clerk to Attorney Matthew S. Poole.