Posts Tagged ‘best interests of the children’

MODIFICATION OF CHILD CUSTODY

Wednesday, February 27th, 2019

As stated in my previous post, I will now delve into one of the more serious topics of that Family Lawyers deal with regularly: Modification of Child Custody.

In order to obtain a custody modification, the non-custodial party, i.e, the party who does not have custody of the child, is required to prove that there has been a substantial change in circumstances affecting the child, that the change adversely affects the child’s welfare, and that a change of custody is in the best interest of the child. There are several factors/considerations a court will weigh in determining what is in the best interest of the child. The following article is a brief examination of the principles set forth above.

Let me clarify a few things, first: there are two (2) separate and distinct aspects to the subject of child custody:

  1. Legal custody,
  2. Primary physical custody.

Legal custody of a child is most often shared between parents, or more accurately stated, “Joint legal custody” is the more common award of the Chancery Court. In short, this indicates that neither parent has more or less “standing” than the other to inquire with the child’s teachers, seek medical assistance for the, child, discipline the child, etc. Shared legal custody basically indicates that mom is still mom and dad is still day, regardless of the other legal factors affecting the life of the minor child and his parents.

At the law office of Matthew S. Poole, we often encourage our clients to agree to shared legal custody, as it is often the best outcome and in the best interests of the child. Of course, there is much more to that facet of the topic concerning legal custody; but for the most, that’s the easy part of this discussion.

Now to the more commonly referred to aspect of custody: Primary Physical custody. W hen people call us at the law office of Matthew S. Poole and complain that they are seeking a change of custody, we understand that they are more than likely referring to primary physical custody. They are unhappy with the current situation and want it changed. Some callers even declare that the current situation is so terrible that it’s an emergency. Much more often than not, no emergency exists.

After the Chancery Court has granted primary custody to one parent over the other, modifying this Court Orders

There are 3 elements to the onset of a Custody modification matter:

First: There must be a material change in the current circumstances of the child since the time of the Order. The change must be “material” or “substantial” in nature. And contrary to popular belief, the fact that the child turned 12 is NOT, taken independently, a material change. Moreover, the material change (or changes) that have occurred should not have been easily anticipated at the time of the initial award of primary custody. The change or changes can be one significant event (perhaps one that even created an emergency situation), or a series of acts, actions, or episodes that, when taken as a whole, create or culminate into this material change.

Second: Those material changes must be deemed as adverse to the child. That is; the change in circumstances must be detrimental to the best interests of the child. Once again, contrary to popular belief, the custodial parent re-marrying is not, in and of itself, automatically bad for the child. Although it is typical human nature to resist and prevent it, change itself is not always bad. N fact, sometimes a change is both bad and good. Left old school and friends is bad…new school has better facilities or is closer to home is good. So, before you call a change in circumstances adverse, take a closer look. A final thought about the adverse nature of the change: remember that this new situation

Third: The decision by the Court that a change of the primary physical custody is the proper remedy to the adverse changes. Therefore, as the non-custodial parent who seeks modification you clear the first two hurdles, and that simply triggers the Court to make a new determination of what custodial/visitation set-up will now best benefit the child.

The best interests of the children should have been determined prior to first award of custody, whether agree to by parties or adjudged by Chancellor. If the parents who are going through a divorce come to an agreement regarding the primary custody of their children, we should certainly hope and even expect that they did so by taking into account all of the specifics surrounding their lives and then coming up with the solution that was best for the children. To do otherwise is unthinkable. Likewise, the reasoning used by the Court in Mississippi, commonly referred to as an Albright analysis, is mandatory before a custodial decision can be made. It is this pre-requisite that makes it often very difficult to convince the Court to modify the primary physical custody of a child…as it should be.

The Albright factors will be examined and analyzed in more detail in my next installment, and I hope that you will log on and read it.

Michael Louvier is a graduate of Mississippi College School of Law (1994). He has been married for 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20).