J.P. v. S.V.B.
| Docket Number: | 2007-CA-00165-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 08-07-2008 Opinion Author: CARLSON, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Child custody - Violence - Section 93-5-24(9)(a)(i) - Third party custody - Recommendation of guardian ad litem Judge(s) Concurring: SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 01-12-2007 Appealed from: Clay County Chancery Court Judge: Dorothy W. Colom Disposition: The Clay County Chancery Court awarded custody of the minor child to her maternal grandparents. Case Number: 2006-0137-C |
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| Party Name: | Attorney Name: | |||
| Appellant: | J. P. AND C. P. |
JASON D. HERRING,
CHADWICK GORDON ROBISON |
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| Appellee: | S. V. B. AND M. B. | CARTER DOBBS, JR. |
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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 - Violence - Section 93-5-24(9)(a)(i) - Third party custody - Recommendation of guardian ad litem |
| Summary of the Facts: | Scott and Marie Barr filed a complaint for Child Custody and Other Relief, seeking custody of their granddaughter, Rebecca Palmer, a minor child born to Jackson Palmer and Catherine Palmer, who is the Barrs’ daughter. The Barrs alleged that Jackson committed a violent assault upon the Palmers’ oldest child, Rebecca, and that the Palmers were mentally, morally, and otherwise wholly unfit to have the care, custody, and control of the minor children and of the unborn child of the Palmers. The chancellor found that custody of Rebecca should be granted to the Barrs, subject to visitation by the Palmers. The court denied the Barrs custody of the Palmers’ other minor children. The Palmers appeal. |
| Summary of Opinion Analysis: | Issue 1: Violence The Palmers argue that the chancellor erred when she determined that in one incident of family violence, Jackson caused Rebecca to suffer serious bodily injury. Section 93-5-24(9)(a)(i) creates a rebuttable presumption that it is not in the best interest of a child to be placed in the custody of a parent with a history of perpetrating violence against a family member. It is clear from the chancellor’s findings of fact that this was not an isolated incident. In fact, the credible evidence showed, and the chancellor determined, that Jackson had committed numerous acts of domestic violence against his wife in the past. Not only did the chancellor determine that Jackson’s physical altercation with Rebecca cause serious bodily injury, but the chancellor likewise found that Jackson had a history of perpetrating family violence. Both “an incident of family violence that has resulted in serious bodily injury” and “a pattern of family violence against . . . a family member of either party[,]” are factors which create a rebuttable presumption that leaving Rebecca with the Palmers would be detrimental to Rebecca. Thus, this issue is without merit. Issue 2: Third party custody The Palmers argue that Mrs. Palmer, the innocent parent, should have been awarded custody of Rebecca over a third party, the Barrs. According to section 93-5-24(9)(a)(iii), the court must consider six enumerated factors when making the determination of whether the rebuttable presumption set forth in section 93-5-24(9)(a)(i) has been overcome. While the chancellor did not specifically refer in writing to all the factors enumerated in her judgment, she no doubt considered those factors in making the custody determination. The chancellor made sufficient, specific findings to support her conclusion that the Palmers did not provide evidence to rebut the presumption outlined in section 93-5-24(9)(a)(iii) and (iv). These findings were supported by substantial evidence in the record. Since the chancellor did not err in determining that the statutory rebuttable presumption had not been overcome, the chancellor likewise did not abuse her discretion in finding from the record before her that custody of Rebecca should be granted to the Barrs. Issue 3: Recommendation of guardian ad litem The Palmers argue that the chancellor committed error by failing to follow, or properly acknowledge, the recommendation of the GAL. While a chancellor is in no way bound by a guardian’s recommendations, a summary of these recommendations in addition to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law. While the chancellor did not discuss the GAL’s qualifications, the chancellor did state that she was not adopting the GAL’s recommendations because the GAL considered only the isolated incident in which Jackson Palmer actually physically harmed Rebecca and not all of the times Rebecca witnessed abuse of her mother. Further, the chancellor found that the guardian ad litem failed to recognize section 93-5-24(9). Therefore, the chancellor did not err in failing to follow the GAL’s recommendation concerning Rebecca’s custody. |
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