Posts Tagged ‘adverse’

How Do You Know A Change Is Material?

Thursday, November 16th, 2017

Of the many different legal situations that our clients come to our office with, modifications of child custody are some of the more complicated and misunderstood. Obviously, the custody of a child can only be changed by a court of competent jurisdiction, and the party requesting a modification has certain evidence that it must show to the court to win their case. A change in custody can be a very drastic measure for a child, and courts rightfully take this burden of proof seriously. Mississippians deserve to know what the state’s courts will likely consider a material change and what will not be enough to win a modification suit.

To be awarded a modification of a child’s custody, there must be a material change of circumstances in the custodial home since the original court order, that change must adversely affect the child, and the modification must be in the child’s best interests. This change must have been unforeseeable at the time of the original court order. If a material change is shown, the chancellor then determines whether that change is the one that adversely affects the child, and then analyzes the Albright factors (elsewhere on our website for your viewing) to make a decision on custody. Determining whether a change is “material” can be difficult, as even Black’s Law Dictionary merely defines “material” as “important” and “having influence or effect.”

In some cases, the materiality of the change is rather apparent. In Hall v. Hall, the father filed a petition for modification of child custody alleging, among other things, poor dental care rising to neglect and improper treatment after a dog bite. Hall v. Hall, 134 So.3d, 822, 824 (Miss. Ct. App. 2014). Testimony showed that one child’s teeth were rotten and black despite the father carrying dental insurance on the children, and that the mother failed to properly treat a child for a dog bite and also failed to inform the father about the bite. The chancellor, while acknowledging that accidents happen, considered the mother’s failures regarding the dog bite to be a material change in circumstances that adversely affected the child. The Mississippi Court of Appeals found no error on the chancellor’s part, and upheld the decision.

Other times, a change may be significant, but not material. In Giannaris v. Giannaris, the trial court awarded a modification in custody to the father after he argued that his relocation to California for work, the mother’s refusal to communicate with him, and the mother’s animosity toward the father’s new wife amounted to a material change in circumstance. Giannaris v. Giannaris, 960 So.2d 462 (Miss. Ct. App. 2007). The Mississippi Court of Appeals reversed, reasoning that since the Court had never found the relocation of a custodial parent to constitute a material change, that the relocation of a non-custodial parent did not either. This is just one instance in Mississippi case law where a change that many parents may see as material was determined to not be by the court.

Child custody cases are a fascinating blend of law and drama, as the wants and needs of many parties intersect, and often collide. These cases are also complex, with many pitfalls that may not seem obvious at first glance. Our office often speaks with clients that wish to pursue a modification who are surprised at the amount of evidence they need to show the court in order to win that case. Custody cases are long, expensive and stressful, and Mississippians deserve to know what they are signing up for when they decide to file a lawsuit for a modification. If you believe a material change in your child’s living situation is worthy of pursuing, call the Law Office of Matthew S. Poole. Our office is experienced in these matters, and believes that you deserve to know your realistic chances of being awarded a modification of child custody.