Brown v. Crum
| Docket Number: | 2009-CA-00310-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-09-2010 Opinion Author: King, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Child custody - Waiver Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Barnes, Ishee, Roberts and Maxwell, JJ. Judge(s) Concurring Separately: Griffis, J., specially concurs with separate written opinion. Non Participating Judge(s): Carlton, J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 10-13-2008 Appealed from: LINCOLN COUNTY CHANCERY COURT Judge: Ed Patten Disposition: CUSTODY TAKEN AWAY FROM MOTHER AND AWARDED TO NATURAL FATHER Case Number: 2008-0308 |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | LORI D. BROWN |
EDWIN L. BEAN, JR. |
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| Appellee: | CHRISTOPHER CRUM | BRAD RUSSELL BOERNE | ||
| Appellee #2: | ||||
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 |
| Summary of the Facts: | Lori Brown and Christopher Crum are the biological parents of two minor children born out of wedlock. Crum acknowledged paternity and entered into a child support agreement through the Mississippi Department of Human Services. Brown and Crum arranged to have the children visit Crum in Tennessee every other weekend and several weeks during the summer and the holidays. The only exception to this agreement was when Brown would become upset or angry with Crum; then the children were not allowed to visit. Brown filed a complaint requesting the court to award joint legal custody to Brown and Crum, with primary physical custody to Brown; to grant Crum visitation rights; to designate a location for the exchange of the minor children for visitations; and to award Brown attorney's fees and court costs. Crum filed an answer to the complaint and a counter-complaint for custody. The chancellor awarded Brown and Crum joint legal custody of the children with Crum having primary physical custody and Brown having visitation rights following the court’s visitation guidelines. The chancellor also ordered that the child support obligations taxed against Crum would be suspended, and Brown would begin making child support payments once she becomes employed. Each party was allowed to claim one child as a dependent for income tax purposes. Brown appeals. |
| Summary of Opinion Analysis: | Issue 1: Custody Brown argues that this matter should have been treated as a modification of custody rather than as an initial determination of custody. The proper legal standard to be applied in making a determination of the custody of a child born out of wedlock, who has been acknowledged by the father and where there has been no prior determination of custody, is the best interest of the minor child. When paternity and custody are determined at the same time, then it is deemed as an initial custody determination, because custody of the child had not been previously determined by the judiciary. If custody had been determined previously, the proceedings would have been considered a modification of custody, and the well-settled ‘material change in circumstances’ standard would apply. There is nothing in the record that suggests that custody was determined during paternity proceedings. Therefore, no initial custody determination was made and the chancellor properly categorized the proceedings as an initial determination of custody. Issue 2: Waiver Brown argues that because Crum waited nearly five years after acknowledging paternity to assert his custodial rights, he waived his right to seek an initial custody determination. Although delay in asserting custody may be a factor to be considered in determining the best interest of the child, it is not the controlling factor. There is no evidence indicating that Crum waived his right to an initial determination of custody or that a prior judicial determination was made as to custody that would require a different burden of proof. Therefore, the chancellor’s initial determination of custody was properly made by an analysis of the Albright factors. |
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