Coon Law Jackson Attorney Blog

Cuccia v Cuccia -- So.3d-- MS 2012, a recent decision in the area of family law and custody determinations, was delivered by the Supreme Court of Mississippi on June 28, 2012. The Court wrestled with many family law issues related to divorce but an interesting part of the decision dealt with one spouse's ownership of large breed dogs and specifically a pit bull. The facts of the case in large part turned upon the wife's dog rescue operation, which she ran out of her home. She took it upon herself to rescue and care for Rottweilers and Pit-bulls inside the marital home. This upset her husband so much that he sought a divorce. At one point he amended his divorce complaint to be based on the grounds of habitual cruel and inhumane treatment, claiming that the insistence of his wife to keep the Rottweilers and Pit-Bulls in the marital home against his objections constituted cruel treatment under the law. While the two later consented to an irreconcilable differences divorce and submitted the issue of custody of their minor children (among other issues) to the Chancery Court's discretion, the dog issue loomed over the case.

The Chancery Court concluded that although both parents were appropriate custodial parents under the Albright factors, the children would be best served by granting sole legal and physical custody to the mother. The Court of Appeals reversed, awarded joint custody and enjoined the mother from allowing dogs of any kind to roam loose or occupy any portion of her residence utilized by the children. The Appellate Court directed the department of human services [DHS] to investigate the cleanliness and safety of the mother's home and provide the report to the chancery court in order that it may reconsider the issue of the fitness of the mother's home. The Supreme Court of Mississippi granted certiorari and affirmed in part, reversed in part, and remanded parts of the appellate court's decision.

Without going too far into the specific factual contentions of this case, it is important to note that at the appellate stage there was confusion as to whether or not DHS had already found the mother's home to be safe. The Supreme Court found that there indeed had already been an investigation by DHS and the investigation had found no problems whatsoever with the mother's home. Thus, the Supreme Court reversed the Appellate Court's injunction and stated that the Chancery Court need not revisit the issue on remand. The Court reversed in part, but upheld the overturning of the Chancery Courts grant of sole custody to the mother but reversed the court of appeal's grant of joint custody. The Court reasoned that while joint custody is presumed and there is no custody presumption favoring the mother, joint custody should only be granted where the parties are able to behave amicably so that a joint custody situation is in the best interest of the children. The Court remanded the issue of custody to the Chancery Court to determine if the parties had become too acrimonious for joint custody to be feasible.

An import thing to note about this case is that The Supreme Court of Mississippi says in dicta (meaning not part of the holding) that, "the Appellate Court's concerns about the safety of the children are laudable" and the opinion relies on the existence of a DHS report indicating that the mother's home is safe. This means that court's should consider the effect of dog ownership on the safety of the children. If you are involved in a custody dispute in Mississippi and you own Pit-Bull's, Rottweilers or other large breed dogs, then you may find yourself at the mercy of a DHS report. The mother in this case ran a rescue operation. That means she most likely had taken very strong security measures. Society has differing opinions about the threat that dog breeds pose, especially to children. There is no way of knowing the opinions of your county's chancellor or those of the DHS employee investigating your home. In all custody determinations, the best interest of the child is paramount and potential threats to a child's safety posed by household pets are a legitimate factor for the court to consider.

Under Mississippi family law, there is a kind of tug and pull between the notion that it is good for a child to have a strong relationship with their grandparents and the fundamental constitutional right of all parents to decide how to raise their children and who will be allowed to influence their children. There is no doubt that that parental rights are primary while grandparent's rights are secondary. As you will see below, the law in Mississippi only permits a grandparent to seek visitation with their grandchildren when their child (the parent of the grandchild) has in some way been denied full custody of that child. This can happen through the grandparent's child losing custody, having their parental rights terminated or death of the custodial parent.

Each of those situations described above results in the grandparent's child not having full custody rights and thus not being able to simply allow his or her parent's to see their grandchild. It is only in those circumstances that the grandparents may petition a court in Mississippi for visitation with the grandchild. In order for the request to be granted they must show that such visitation is in the best interest of the child. The best interest of the child is the polestar for all custody and visitation determinations, but for grandparents the court will look to see if there a viable relationship has formed between the grandparents and the grandchild when making its determination.

This very limited view of grandparents rights leaves many grandparents dumbfounded. Especially when, as happens in many cases, the grandparents have been providing a great deal of monetary support to help raise the grandchildren. How can it be that the courts will not recognize their vested interest in seeing their progeny is properly raised? Parents and grandparents often do not agree on what is best for the child. They may have religious differences. They may disagree on what is suitable punishment or what kind of behavior should be demanded of a child at a certain age. The Supreme Court of the United States says that the parent's liberty t to raise one's child as they see fit is a fundamental right granted by the constitution. It is not the prerogative of state courts to intervene and decide what is best for the children in the area of grandparent visitation.

The most important case for the issue for the rights of grandparents to exercise visitation with their grandchildren is Troxel v. Granville, which was decided by the US Supreme Court in 2000. In Troxel, the grandparents sought visitation rights to their grandchildren after the children's mother had limited their visitation to one short period per month. A Washington State statute said that any person could petition the court for visitation rights at any time and the court could order such visitation if it was in the best interest of the children. The Washington court's granted the grandparents visitation rights. The US Supreme Court held that the application of the statute in that case was unconstitutional because it violated the due process rights of the parent to make decisions regarding the care, custody and control of their children. Note that it did not hold the statute was unconstitutionally invalid but only that its application in this case was unconstitutional.

O'Connor's majority opinion in Troxel stated that the liberty interest of parents in the care, custody and control of their children is perhaps one of the oldest of the fundamental liberty interests. This is important because states actions are strictly scrutinized when they infringe on a person's fundamental rights. In Troxel, the court found that the trial judge had not given enough weight to the parent's decision to limit the amount of grandparent visitation. Moreover, the Washington state courts had suggested that the grandparent's requests would be granted unless the custodial parent could show that child's interest were adversely affected (because the court presumed that it is always better for children to spend quality time with grandparents). The US Supreme Court in Troxel stated unequivocally that the state may not supplant its own judgment in place of the custodial parent as to what is better for the child when it comes to visiting third parties, grandparents included. The Mississippi Statute was mention in Troxel. This fact led to legislative amendments and decisions by the Mississippi Supreme Court detailing how the statute should be applied to cases involving visitations rights for grandparents.

Miss. Code Ann. § 93-16-3
Title 93: Domestic Relations
Chapter 16: Grandparent's Visitation
§ 93-16-3. Eligibility to petition; venue; fees

(1) Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child's parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.

(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:

(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and

(b) That visitation rights of the grandparent with the child would be in the best interests of the child.

(3) For purposes of subsection (2) of this section, the term "viable relationship" means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child, the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year, or the child has been cared for by the grandparents or either of them over a significant period of time during the time the parent has been in jail or on military duty that necessitates the absence of the parent from the home.

(4) Any petition for visitation rights under subsection (2) of this section shall be filed in the county where an order of custody as to the child has previously been entered. If no custody order has been entered, then the grandparents' petition shall be filed in the county where the child resides or may be found. The court shall on motion of the parent or parents direct the grandparents to pay reasonable attorney's fees to the parent or parents in advance and prior to any hearing, except in cases in which the court finds that no financial hardship will be imposed upon the parents. The court may also direct the grandparents to pay reasonable attorney's fees to the parent or parents of the child and court costs regardless of the outcome of the petition.

In Settle v. Galloway,42 the Supreme Court quoted the statute on grandparent visitation to say that such might be granted:
(1) Whenever a court of this state enters a decree or order awarding custody of a minor [that would be in Mississippi until the age of 21] to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child's parents who was not awarded custody or whose parental rights have been terminated or who has died may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the Chancery Court in the county in which the child resides, and seek visitation rights with such child.
(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the Chancery Court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
(b) That visitation rights of the grandparent with the child would be in the best interests of the child."

in Martin, the Supreme Court of Mississippi then issued the following "factors [that] should be considered by the chancery court in determining grandparent visitation," and said that "no one should be weighed more heavily than the others"
1. The amount of disruption that extensive visitation will have on the child's life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents' home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents' home from the child's home.
8. Any undermining of the parent's general discipline of the child.
9. Employment of the grandparents and the responsibilities associated with that employment.
10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent's manner of child rearing is not to be interfered with by the grandparents.

For my blog, I invite my clients and anyone else to suggest or request that I blog on particular issues related to the laws in Mississippi, Louisiana or federal laws. I recently received a request for a family-law blog entry on the factors used to determine child custody in Mississippi.

In Mississippi, family-law matters are handled in chancery court with is presided over by a chancellor. "The paramount and ultimate goal in every child custody case must be the best interests of the child." In re Dissolution of Marriage of Leverock and Hamby, 23 So. 3d 424 (Miss. 2009). Thus, the overriding factor in every custody case in Mississippi is "the best interest of the child."

All other factors considered by the chancellor are aimed at determining what is in "the best interest of the child." The factors considered by the chancellor in his or her determination of "the best interest of the child" are enumerated in the Supreme Court of Mississippi's ruling in Albright v. Albright, 437 So.2d 1003 (MS 1983). [hereinafter Albright Factors]

The Albright Factors are as follows:
(1) The age, health and sex of the child;
(2) Which parent had continuing care of the child prior to separation;
(3) Which parent has the best parenting skills;
(4) Which has the willingness and capacity to provide primary child care;
(5) Employment responsibilities of both parents;
(6) Physical and mental health and age of parents;
(7) Emotional ties of the parent and child;
(8) Moral fitness of the parents;
(9) Home, school and community record of the child;
(10) Preference of the child at the age of 12;
(11) Stability of the home environment and employment of each parent, and
(12) Other relevant factors.

Albright v. Albright, 437 So.2d 100.pdf

It should come as no surprise that after a divorce the mother is more likely than the father is to get custody. Most of the time the mother ends up with joint legal custody and sole physical custody of the child and the father ends up with rights to visitation and obligations of support. This writer/attorney doesn't argue that divorce and custody determinations ought to be made in favor of the father over the mother. This writer thinks that the importance of the father's role in raising children should be better understood and courts should be cognizant of the most recent research into this area.

This especially true in a society like ours with so many children living in situations where their parents are not longer together. In fact, studies have suggested that women are more likely to initiate a divorce because they are more likely to get the custody arrangement that is more desirable to them. It has also been shown that in states where custody laws have changed to place the divorced father on a more level footing for custody determinations, the divorce rates drop because women are apprehensive of losing control over the care of their children.

This is not to suggest that these mother's are diabolical and intent on ruining their husbands' lives. To the contrary, the studies show that mothers are highly concerned with their children's well-being and maintaining control over the upbringing of their children. This is commendable. However, mother's often do not understand how important the role of the father is to parenting. Most mothers do understand the need for their children's father to be present, but what they consider a sufficient "presence" is only about one half of the amount of time that experts consider to be a sufficient presence of the father in a child's life.

Current Research has brought the antiquated notions of gender roles in the upbringing of children into serious question. The idea that the mother is the primary care provider is fine until you enter a circumstance in which nearly half of marriages are ending in divorce. Divorce rates were nowhere near that level throughout the centuries in which the gender roles of parents were established and ingrained into the the cultural subconscious. Studies now show that the absence of sufficient paternal involvement in a child's upbringing can be seriously damaging. It affects them emotionally, mentally and is a serious impediment to their ability to adjust as they become adults and eventually being happy.

Without going too deep into statistics, it is worth pointing out that these studies suggest that as many as 25% of fathers are wholly uninvolved in the upbringing of their children after a divorce and that even the fathers that are involved have to deal with children who are often turned against them by the mother, with whom they share a much stronger bond. This causes serious damage to the child's ability to negotiate the difficulties of early adulthood and eventually find happiness. Contrary to historical gender roles of parents, the negative effects of absent or insufficiently present fathers are more severe for daughters than for sons. So daughters and not sons are more affected by the absence of the father. Sons were traditionally thought to need the presence of a male more than daughters.

Why are courts so hesitant to recognize the importance of the father in the upbringing of the child? The overriding factor for custody determinations is "the best interest of the child." Despite studies showing that the importance of the father to the emotional stability and overall mental health of the child, courts are painfully slow to recognize the importance of the father's role in raising children and that it is comparable to the importance of the role of the mother in assuring the best upbringing for the child. What fathers are fighting in court are the long held belief in the proper gender roles of parents. Put simply, courts are declaring, "the mom raises the kids and the dad provides the necessities because that's the way it is and that is the way it always has been. The truth is that is the way it was and children and fathers are both being harmed by these antiquated notions of gender roles that are being reenforced by the legal system through the actions of both the state legislatures and judiciaries.

Experts suggest that for a father to be sufficiently involved in a child's life they should take on 25% of the responsibility for raising the child and this would mean physical custody of the child. However, mothers generally do not want to give more than 10% of that responsibility to fathers. A few days per month is not nearly enough according to experts in the field but that is exactly what courts often declare to be adequate. Of course, all of this presupposes that both parents are fit parents and the writer does not suggest that unfit mothers or unfit fathers should be given more time with their children. What the writer suggests is abundantly clear is that there is a disconnect between the research into this field and what courts are concluding is in the "best interest of the child." These studies need to be brought to the attention of judges when they are important to the outcome of the case.

The importance of the mother's role in raising children cannot be denied and is not being denied by this writer/attorney. Advocating for the important role of the mother is a worthy cause and does help ensure the healthy upbringing of children and is protecting their best interest. However, the role of the father is also important. If the father is a fit parent and desires involvement in the lives of his children, the courts should not discourage this by treating him like a second class parent and neither should the mother. In making custody determinations, the best interest of the child must be the key factor. Whether that determination is made by a court or (hopefully) by an agreement between the mother and the father.

It is in the best interest of the child that both the mother and the father are happy with their custody agreement and that neither one feels like a second class parent. It is desirable that everyone including judges, attorneys, mothers, fathers, children and grandparents better understand modern scientific research into children of divorced parents and the effects of custody agreements on those children. If everyone keeps the best interest of the child at the heart of their decisions, society will see an increased appreciation of the role of the father in the upbringing of children and everyone including the mother will be better off for it.