Robison v. Lanford
| Docket Number: | 1999-CT-01836-SCT Linked Case(s): 1999-CA-01836-COA |
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| Supreme Court: | Opinion Link Opinion Date: 04-03-2003 Opinion Author: Cobb, J. Holding: Court of Appeals' Judgment Affirmed, and Chancery Court's Judgment Reversed and Remanded |
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| Additional Case Information: |
Topic: Child custody - Waiver of appellate review - Record of in-chambers interview - Guardian ad litem - Section 9-5-89 - Section 93-5-23 Judge(s) Concurring: Pittman, C.J., Smith, P.J., Waller, Diaz, Easley, Carlson and Graves, JJ. Concurs in Result Only: McRae, P.J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS Writ of Certiorari: Granted |
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| Trial Court: |
Date of Trial Judgment: 07-28-1999 Appealed from: Sunflower County Chancery Court Judge: Jane R. Weathersby Disposition: MODIFICATION ORDER ENTERED GRANTING CUSTODY TO MOTHER Case Number: 24305 |
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| Note: | The Supreme Court found that in chamber interviews with children should be part of the record in custody disputes and affirmed the Court of Appeals. The original Court of Appeals opinion can be found at http://courts.ms.gov/Images/Opinions/Conv11739.pdf . | |
| Party Name: | Attorney Name: | |||
| Appellant: | Thomas Lee Robison |
JEFFERSON DAVIS GILDER |
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| Appellee: | Carol Denise Robison Lanford | KINNEY M. SWAIN |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Child custody - Waiver of appellate review - Record of in-chambers interview - Guardian ad litem - Section 9-5-89 - Section 93-5-23 |
| Summary of the Facts: | Carol and Thomas Robison divorced and agreed to joint legal custody of their daughter. Thomas filed a motion to modify custody, and Carol filed a cross-motion seeking sole custody. The dispute was settled by a consent modification decree which left custody unchanged. Carol then filed a new petition to modify custody. The court heard testimony from all parties, including an in-chambers, off-the-record interview with the child. The chancellor granted Carol physical custody. Thomas appealed, and the Court of Appeals remanded for additional development of the record. The chancellor did not conduct any further hearing or interview and refused to provide any information gathered in the conversation with the child or to take any additional steps to provide any evidence of that conversation or to hold a new transcribed interview. On motion for rehearing, the Court of Appeals reversed the judgment of the chancellor and remanded the matter for additional proceedings regarding custody. Carol filed a petition for certiorari which was granted. |
| Summary of Opinion Analysis: | Issue 1: Waiver Although the parties agreed to the in-chambers interview with the child, the agreement does not waive the issue for appellate review. Appellate courts must have a complete and accurate record when reviewing child custody judgments. While ordinarily a waiver between two parties would preclude that issue from appellate review, it will not when the waiver concerns the best interest of a child, especially where no guardian ad litem was appointed to protect the child’s best interest. The in-chambers interview, and the chancellor’s continuing refusal to reveal any of the content of that interview, prevents the appellate court from having a full review of the evidence the chancellor used in making her decision. From the record as it exists, it appears that there was no material change adversely affecting the child. Issue 2: In-chambers interview Whether courts must make a record of in-chambers conversations with children is an issue of first impression. Other states have held that a record of in-chambers interviews with children must be made and become a part of the record. Henceforth, a record must be made by a court reporter physically present during the in-chambers interview with the child. It will be at the court’s discretion whether to seal the interview, which may by order of the trial court or an appellate court be unsealed for review. Issue 3: Guardian ad litem Section 9-5-89 allows the court to appoint a guardian ad litem to any infant when the court shall consider it necessary for the protection of the interest of such defendant. Because the child’s best interest is the polestar consideration, the importance of guardian ad litem appointments in child custody proceedings cannot be overemphasized. The appointment of a guardian ad litem allows for the child to be represented and for the child’s voice to be heard by the court through an independent party. Section 93-5-23 requires the court to appoint a guardian ad litem for the child when a charge of abuse and/or neglect arises in the course of a custody action. Therefore, it is mandatory that a guardian ad litem be appointed in child custody cases where allegations of abuse are at issue. |
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