T.K. v. H.K.
| Docket Number: | 2008-CA-01969-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 01-05-2010 Opinion Author: Roberts, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Modification of child custody - Material change in circumstances Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Griffis, Barnes, Ishee, Carlton and Maxwell, JJ. Concurs in Result Only: Irving, J. concurs in result only without separate written opinion. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
|
| Trial Court: |
Date of Trial Judgment: 08-25-2008 Appealed from: Harrison County Chancery Court Judge: Jim Persons Disposition: MODIFICATION OF CUSTODY OF MINOR DAUGHTER FROM MOTHER TO FATHER Case Number: 03-01343-1 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | T.K. |
HARRY M. YOSTE, JR. |
||
| Appellee: | H.K. | M. CHANNING POWELL |
|
|
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. |
|
| Topic: | Modification of child custody - Material change in circumstances |
| Summary of the Facts: | H.K. filed a complaint against his former wife, T.K., for modification of custody of their then two-year-old daughter, S.K. The court awarded H.K. primary physical custody of S.K. T.K. appeals. |
| Summary of Opinion Analysis: | T.K. argues the chancellor erred when he found that it was necessary to modify custody of S.K. When seeking to modify custody of a child, a non-custodial party must prove that there has been a substantial change in circumstances affecting the child; the change adversely affects the child’s welfare; and a change in custody is in the best interest of the child. In considering the totality of the circumstances, the chancellor mentioned four things that caused him to conclude that there had been a material change in circumstances: his conclusion that S.K. had been sexually abused by someone while in T.K.’s care; T.K.’s refusal to believe that S.K. had been sexually abused; T.K.’s failure to inform H.K. of S.K.’s location while she and S.K. were in Phenix City, Alabama after Hurricane Katrina; and T.K.’s Alabama petition for protection from abuse. There was certainly substantial evidence for the chancellor’s finding that S.K. had been sexually abused while in T.K.’s care. Based on the finding that S.K. had been sexually abused while she was in T.K.’s care – and the fact that T.K. denied that it had occurred or that S.K. needed counseling – there was substantial, credible evidence to support the chancellor’s decision that there had been a material change in circumstances. T.K.’s move affected more than H.K.’s visitation rights. When T.K. moved, she did not tell H.K. where she was going with S.K. For two months, H.K. was uninformed of S.K.’s whereabouts. Moving without informing H.K. of S.K.’s whereabouts and completely refusing to communicate with H.K. could reasonably be characterized as more egregious than simply failing to cooperate with H.K. regarding visitation. As for whether the change in circumstances is adverse to S.K.’s best interest, there can be no doubt that it is – particularly because S.K. indicated that she had informed T.K. about the sexual abuse, but T.K. not only denied that it had occurred in the face of significant evidence to the contrary, she also denied that her daughter should receive counseling to cope with the abuse. The chancellor could have reasonably concluded that if S.K. were to remain in T.K.’s care, that would exacerbate not only the harm S.K. suffered in the past but also the harm she will likely suffer in the future. Thus, the chancellor did not abuse his discretion when he found that there had been a material change in circumstances that was adverse to S.K.’s best interest. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
