Posts Tagged ‘violence’

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.

And Now We Wait – Domestic Amendment Passes Mississippi House

Sunday, March 19th, 2017

Last week, the Mississippi House passed a bill addressing domestic violence as a ground for divorce in the state, just one month removed from killing such a bill. The bill that would modify the grounds for divorce to include domestic violence passed in the Senate, but was not even voted on in the House. Representative Andy Gipson took the brunt of the criticism, largely because of his remarks that if domestic violence is occurring, the perpetrator needs “to have a change of heart” rather than be divorced from.

The specific language of the bill that was killed by the House added the words “including spousal domestic abuse” to the current Mississippi divorce ground of habitual cruel and inhuman treatment. Gipson cited the “floodgates” of divorce that would be opened with the bill’s passage as his reason for opposing the amendment. Strangely, the language of the new amendment that Gipson approved seems to extend beyond that of the bill he opposed.

The new amendment allows for a divorce to be granted when both abusive physical and non-physical conduct is taking place in a marriage. The “abusive physical conduct” section provides for a divorce for the cause of habitual cruel and inhuman treatment to be granted to the injured party when that party’s spouse has attempted to cause or has purposely, knowingly or recklessly caused bodily injury to that party. That proposed section also includes putting the injured party in fear of imminent serious bodily harm.

The “abusive non-physical conduct” section is where the new proposed amendment goes further than previous legislation. This section allows a divorce for habitual cruel and inhuman treatment to be granted where a pattern of abusive non-physical conduct such as threats, emotional or verbal abuse, forced isolation, sexual extortion, stalking, and economic financial abuse.

Several parts of this new amendment really stick out and will most likely be the catalysts for this amendment to affect change in Mississippi divorce law. For abusive physical conduct to be grounds for a divorce, the conduct must be established through the reliable testimony of one or more credible witnesses, and any of those witnesses may be the injured party. This is a huge sentence of this amendment, as the majority of domestic violence happens behind closed doors with only the two spouses present. This gives the abused spouse more ammunition than previously available to pursue a divorce.

The standards of proof also play a large part in the new changes. When reliable testimony comes from only one credible witness (who can be the injured party), the standard is clear and convincing evidence, which is the highest burden of proof used in civil courts. When that single credible witness’s testimony is corroborated by other credible physical or forensic evidence, the burden of proof lowers to preponderance of the evidence, or “more likely than not.”

Our previous article talks about some of the behavior that divorces have been granted under habitual cruel and inhuman treatment. Mississippi courts have held that this may include only one instance, and that emotional abuse can be considered enough to grant a divorce on this ground. The Mississippi case of Harmon v. Harmon involves a divorce granted for grounds similar to those described in the “abusive non-physical conduct” section of the proposed amendment. In that case, the husband exhibited stalking behavior, often appearing at the wife’s workplace and following her on lunchbreak. He also often used disparaging language toward her. The wife was granted a divorce, showing that Mississippi courts are willing to grant divorces for habitual cruel and inhuman treatment for non-physical abuse.

While the substance of the amendment will not alone provide a large change in the operation of Mississippi law when dealing with divorce, there are two huge parts that we believe will have the highest impact. The first is the provision that allows evidence of domestic violence to be offered by a single credible witness which may be the injured spouse. As mentioned before, much of domestic violence happens without witnesses other than the spouses, and allowing this evidence to come from the injured party helps abused spouses immensely.

The second and not-so-obvious benefit from this amendment is the ability it gives normal, everyday Mississippians for exploring their options. Many instances of domestic violence go unreported for any number of reasons. Often, abused spouses may not even consider speaking with an attorney out of fear that their spouse may find out, possibly leading to physical or economic abuse. Someone being abused may have had a bad experience with the legal system or just attorneys in general. There are numerous reasons people will not speak with lawyers. Not every Mississippian has access to the legal resources that attorneys do, or even the ability to read and fully understand the state’s divorce statute. If an abused spouse believes that speaking with an attorney too risky for whatever reason, explicitly including provisions regarding physical and non-physical abuse allows that person to read the statute themselves and have a better understanding of their rights.

The proposed amendment has passed in the Mississippi House, including the vote of Representative Gipson. Whether his agreement to this amendment is the result of his recent public crucifixion or a genuine belief that this amendment is more satisfactory than the one he killed is of no consequence. If this proposed amendment is voted for by the Mississippi Senate, it will become part of the divorce grounds in the state. This amendment is good for the people of Mississippi, as it provides more understanding into what our divorce law provides as well as more options to those experiencing domestic abuse.

As mentioned in our past articles, if you or anyone you know is experiencing abuse in a marriage, we encourage you to immediately seek help. Our office will be happy to help in any way we can. For help in combating abuse or any other family law problem, please call the Law Office of Matthew S. Poole at (601) 573-7429.

By Kenneth Davis, J.D. Candidate 2017.  Law Clerk to Matthew Poole. 

And There Were Still Twelve – Domestic Violence and Divorce Grounds in Mississippi

Sunday, March 5th, 2017

Recently, the Mississippi Legislature again voted against a bill that would make domestic violence the thirteenth ground for divorce in Mississippi. As to be expected, there has been large public backlash around the state regarding this decision. Much of this criticism seems to be directed at the legislature’s seeming insensitivity to the seriousness of domestic violence. While our office condemns domestic violence in every form, it is important for Mississippians to know the effects of this decision on a divorce case in the state.

There are twelve grounds for divorce in Mississippi, which are listed elsewhere on our website for your viewing. Our concern today is the ground of habitual cruel and inhuman treatment, which is the ground most likely to be at the front of a divorce where domestic violence is occurring. While domestic violence is still not explicitly a part of Mississippi divorce grounds, cruel and inhuman treatment allows abuse to be addressed by courts in the state. The phrase is vague, and has been examined through many different lenses throughout the years.

Marriage is, for lack of a better word, hard. Arguments and unpleasantness are simply parts of both marriage and life. Therefore, habitual cruel and inhuman treatment must extend beyond rudeness, unkindness, or mere incompatibility. Although the word “habitual” indicates that this behavior must be continuous or systematic, Mississippi courts have held that a single instance can provide grounds for a divorce. Kumar v. Kumar, 976 So.2d 957, 961 (Miss. Ct. App. 2008). Physical violence or even a threat of it isn’t required to show proof of cruel and inhuman treatment. Cruel and inhuman treatment can also take the form of emotional abuse, which can later lead to actual violence.

The case of Harmon v. Harmon, 141 So. 3d 37 (Miss. Ct. App. 2014) showcases less severe grounds enabling a divorce in Mississippi. In that case, a wife testified that her husband of five years regularly accused her of adultery, called her derogatory names, followed her on breaks from work, and appeared often at her place of work. Her daughter and co-workers testified to her agitated manner following his actions, and that she was experiencing suicidal thoughts as well as murderous thoughts about her husband. The husband was also a compulsive gambler. The court of appeals affirmed the grant of divorce based on habitual cruelty. This case shows that grounds much less severe than physical domestic violence can effectuate a divorce in Mississippi, and that habitual cruel and inhuman treatment is an effective ground for divorce under even minimally violent or abusive circumstances.

While the Legislature’s decision is disappointing, the twelve current grounds for divorce in Mississippi sufficiently allow for a divorce to be granted. The Legislature declining to add domestic violence as a thirteenth ground does not mean that occurrences of domestic violence cannot provide a ground for a divorce. The current statutes provide grounds for divorce in abusive scenarios, albeit under a different label. It is also important to also note that Constructive Desertion can be recognized as ground for divorce when the conduct of one spouse is subjectively ruining the ability to maintain a normal, healthy marriage.

If you or someone you know is experiencing domestic violence, our office encourages you to seek help, and to feel confident in pursuing a divorce because of that violence. Despite the number of grounds staying at twelve, Mississippians should feel confident in the professionals of the legal system, and their ability to realize when domestic violence entitles a person to a divorce.

By Kenneth Davis, J.D. Candidate 2017.  Law Clerk to Matthew Poole.