A.T.K. v. R.M.K.W.
| Docket Number: | 2008-CA-01419-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-24-2009 Opinion Author: CARLTON, J. Holding: REVERSED AND REMANDED |
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| Additional Case Information: |
Topic: Child custody - Material change in circumstances - Exposure to sex offender Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 06-04-2008 Appealed from: Clarke County Circuit Court Judge: Lawrence "Larry" Primeaux Disposition: DENIED CHANGE IN CUSTODY OF MINOR DAUGHTER FROM MOTHER TO FATHER Case Number: 05-0027-P |
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| Party Name: | Attorney Name: | |||
| Appellant: | A.T.K. |
WILLIAM B. JACOB |
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| Appellee: | R.M.K.W. | THOMAS GOODWIN BITTICK |
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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 - Material change in circumstances - Exposure to sex offender |
| Summary of the Facts: | Mike filed an action to modify the child custody arrangement between Mike and his ex-wife, Diana, after Diana married a registered sex offender convicted of a sexual offense against a minor. The chancellor found that the presence of a sex offender in the child’s home constituted a material change in circumstances adverse to the couple's daughter. However, after Diana provided evidence that her divorce from the sex offender was finalized, the chancellor dismissed Mike’s motion for modification of child custody, finding that the material change in circumstances adverse to the child’s best interest no longer existed. The court also entered an injunction to prevent the child from being unsupervised in the presence of a convicted sex offender. Mike appeals. |
| Summary of Opinion Analysis: | Mike argues that the chancellor committed manifest error by failing to properly safeguard a female minor child from a sexual predator when the chancellor failed to modify custody. In order for a chancellor to modify a child custody decree, the noncustodial parent must prove that a material change of circumstances has occurred in the custodial home since the most recent custody decree, that the change adversely affects the child, and that modification is in the best interest of the child. In such matters concerning the protection of a child from danger, the judgment of the parent – and parenting skills – are extremely important. The record shows that when Diana discovered that her marriage to the sex offender was resulting in a recommendation of a change in custody from the guardian ad litem, Diana obtained an irreconcilable differences divorce. In addition, Diana and her husband both testified that they did not want to get a divorce, but they proceeded with dissolving the marriage solely so Diana would not lose custody of her daughter. Evidence showed that Diana continued her relationship with her husband even throughout the divorce proceedings. Although the divorce decree itself may be perfectly valid and binding, thereby dissolving the marital status, a divorce decree and the lack of marital status do not prevent the parties from continuing their relationship, emotionally or physically, or from cohabiting without marital status. Moreover, evidence reported to the guardian ad litem reflects that the divorce decree was obtained only for the subterfuge purposes of appeasing the court so that Diana could retain custody. Regardless of whether Diana remarries her ex-husband or not, or whether they merely cohabitate without benefit of marital status, the chancellor should evaluate whether a material change adversely affecting the child has occurred by her exposure to a sex offender in her mother’s home, and whether any continuing threat of danger or exposure to danger exists. |
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