Divorcing couples in Mississippi often struggle with the issues of child custody and visitation. Unhappily for some couples, the struggle does not end when the chancellor enters the final decree dissolving the marriage and awarding custody. Circumstances can change, and the reasons behind the court's initial decision may no longer be valid. This post will examine the remedies available to a non-custodial spouse who believes the court's initial determination of child custody should be modified or amended.
Under Mississippi law, as worked out in a number of appellate court decisions, an original order determining child custody can be changed if the non-custodial spouse can demonstrate a material change in circumstances that adversely affects the best interests of the children. The party seeking the change in custody bears the burden of proving the existence of material adversity, and the court must examine the "totality of the circumstances" in making its decision.
The court usually engages in a two-step process. In the first phase, the court must decide if the alleged change in circumstances is material. For example, moving from one Mississippi town to another may not be material, whereas a move to a distant state may be deemed material. Next, the court must determine if the change is "adverse to the child's welfare." After completing its review, the court must make written findings of fact setting out how each of the Albright factors affects the decision. (The Albright factors, first set forth by the Mississippi Supreme Court in Albright v. Albright, 437 So.2d 1003 (1983), govern all child custody decisions in Mississippi. They have been discussed in a prior post on this blog.)
Bringing a motion to alter or amend an order for child custody may require the assistance of a family lawyer, as may responding to such a motion. A consultation with an experienced divorce attorney can answer many questions about the proceeding and likely outcomes.
Source: Mississippi Court of Appeals, Robinson v. Brown, dated March 22, 2011, accessed on June 19, 2017