How can Custody be modified?

Clients often inquire as to how they can re-gain custody of a child or children subsequent to a divorce or previous custody order. Many people share a common misconception that once a child is twelve (12)years old he or she can choose which parent the child wishes to live with regardless of a Court Order. Let me assure you that custody modification is a difficult endeavor in Mississippi. Let me also be clear that a child’s decision at any age is not enough to modify a custody order and change physical custody. Potential litigants should also understand that out of Court agreements regarding custody are not legal custody determinations and/or modifications.

So what is the standard for custody modification in Mississippi?  There is a three-pronged test for modification.

“The burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home. Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996). To successfully move to modify custody of a child, a noncustodial parent must prove (1) that a substantial change in circumstances has transpired since issuance of the custody decree, (2) that this change adversely affects the child’s welfare, and (3) that the child’s best interests mandate a change of custody. McDonald, 39 So.3d at 880 (¶ 37). “A modification of custody is warranted in the event that the moving parent successfully shows that an application of the Albright factors reveals that there had been a material change in those circumstances which has an adverse effect on the child and modification of custody would be in the child’s best interest.” Johnson v. Gray, 859 So.2d 1006, 1013 (¶ 33) (Miss.2003) (citing Sanford v. Arinder, 800 So.2d 1267, 1272 (Miss.Ct.App.2001)).” See Hall v. Hall, 134 So.3d 822(Miss.Ct.App.2014)

Additionally, there is another method for modification.  I suppose it is a fast track type of modification.  That case is Riley v. Doerner, 677 So.2d at 744, holding that “where a child living in a custodial environment clearly adverse to the child’s best interest the Chancellor is not precluded from removing the child for placement in a healthier environment.”  This is rare and hardly ever practical in application.

To make modifications of custody even more difficult, if you (the litigant) do not prove the first two prongs, the Court will simply stop there and dismiss your custody case or deny your petition.  “If the court finds an adverse material change, then the next step is to apply the Albright factors to determine whether modification is in the child’s best interest.” White v. White, 26 So.3d 342, 351 (¶ 28) (Miss.2010) (citing Sturgis v. Sturgis, 792 So.2d 1020, 1025 (¶ 18) (Miss.Ct.App.2001)).

If you are thinking about hiring an attorney for custody modification, you should take some time write down all three prongs.  Go back in time chronologically to a Court Order regarding custody.  That should be either a divorce containing child custody, a custodial Order, custody modification order, temporary order or other similar order.  Many times DHS has established that one parent pay child support.  However, a DHS order often only deals with the issue of child support.  Custody may still be wide open for an Albright analysis instead of a modification standard.

  1. Material changes-  These should be substantial and material and must occur in the custodial home.  A change in the non-custodial home will not suffice.  Write these changes down.  Include the dates the changes occurred and the facts surrounding the changes.  Write down potential witnesses and/or potential documents that may be used at trial.  YOU MUST WRITE THESE THINGS DOWN.  This will help you to remember all of the facts, make your lawyer’s job easier and to move your case along.  Material changes may include remarriage of custodial parent, a move, poor performance in school, discipline issues – really anything.  Usually one is not enough, but it could be depending on your particular case.
  2. Adverse affect – Ask yourself how the material changes you described above impacted the child(ren) in a negative way.  How can you show a judge this adverse impact?  Think of witnesses or documents that could support this claim.  Perhaps a teacher could testify about grades declining, behavioral issues and absent parenting by the custodial parent.  Perhaps there is a medical document to show that the custodial parent has failed to provide proper care or supervision that resulted in medical treatment.  This is often the most difficult prong in a modification case.  There should be a causal connection between the material changes and the adverse affect.
  3. If you made it this far, congrats!  The final prong is the best interest prong.  Whether the custody with the non-custodial parent is in the best interest of the child. “The Albright factors are as follows: (1) age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which parent has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and child; (7) the moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of the home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship.” Albright, 437 So.2d at 1005.

Finally, parents can always agree to a custody modification and file a joint petition to the Court.  Usually the Court will approve these agreed joint petitions, but I have experienced instances where the Court refused to honor these agreements because it was not in the child’s best interest.