Swartzfager v. Derrick
| Docket Number: | 2005-CA-00648-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-07-2006 Opinion Author: Myers, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Modification of custody - Burden of proving material change in circumstances Judge(s) Concurring: King, C.J., Lee, P.J., Southwick, Irving, Chandler, Griffis, Barnes, Ishee and Roberts, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 01-24-2005 Appealed from: Lamar County Chancery Court Judge: Johnny Lee Williams Disposition: TEMPORARY ORDER MODIFYING ORIGINAL CUSTODY AGREEMENT WAS MADE PERMANENT AFTER THREE YEARS HAD PASSED WITH OUT ACTION TO REMOVE THE TEMPORARY ORDER. Case Number: 2000-0142-W |
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| Party Name: | Attorney Name: | |||
| Appellant: | Helen E. Swartzfager |
ROBERT R. MARSHALL |
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| Appellee: | Grady Paul Derrick, Jr. | MICHAEL ADELMAN |
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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: | Modification of custody - Burden of proving material change in circumstances |
| Summary of the Facts: | Grady Derrick, Jr. sought physical custody of his minor child through a modification of the original child custody agreement. The original agreement was incorporated into the divorce decree and gave physical custody to Helen Swartzfager, the child’s mother. An order temporarily changing custody was entered, but nearly three years passed before a hearing was held on the motion for modification. At the final hearing, the chancellor held that Helen had the burden of proving a material change in circumstances since the date of the temporary order. She failed to do so, and Grady was granted permanent physical custody. Helen appeals. |
| Summary of Opinion Analysis: | Helen argues that the chancellor applied an erroneous legal standard regarding modification of child custody, by placing upon her, the custodial parent, the burden of proving that a material change had occurred in the home of the father, adverse to the best interests of the child. In order to transfer custody of a child, the non-custodial parent has the burden of proving that since the decree or order sought to be modified, a material change has occurred in the custodial home which adversely affects the child. A temporary order may acquire incidents of permanency where, as here, the order had been allowed to operate unchallenged for a period of years. Accordingly, the chancellor properly placed the burden of proof upon Helen, the petitioner, for modification. After hearing testimony of the parties, the chancellor found Helen to have failed to meet her burden of proof. The chancellor found that to remove the child from his home of the past three years, where he had apparently thrived, would be to cause him unnecessary instability. The chancellor did not abuse his discretion in making this decision. |
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