Lorenz v. Strait
| Docket Number: | 2007-CA-00522-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 07-31-2008 Opinion Author: EASLEY, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Child custody - Material change in circumstances - Temporary custody Judge(s) Concurring: SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ. Concur in Part, Concur in Result 1: LAMAR, J. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 02-22-2007 Appealed from: LOWNDES COUNTY CHANCERY COURT Judge: Kenneth M. Burns Disposition: Following trial on February 26, 2007, the Chancery Court for Lowndes County entered judgment in this matter. The court dismissed with prejudice Kristy’s petition to modify the final decree, and ordered that custody of the daughter immediately be returned to Travis or, in the event he was still under a no-contact order from the United States Navy, custody was to be placed with Travis’s mother. Kristy filed a motion to reconsider, which was overruled by the chancery court. Case Number: 2005-0641-L |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | KRISTY (STRAIT) LORENZ |
J. DOUGLAS FORD |
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| Appellee: | TRAVIS STRAIT | J. TYSON GRAHAM | ||
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| Topic: | Child custody - Material change in circumstances - Temporary custody |
| Summary of the Facts: | When Kristy and Travis Strait divorced, the parties agreed to joint legal custody of their daughter. Travis was given primary physical custody, subject to Kristy’s visitation rights, along with her agreement to assist Travis with child support. Four days after Kristy remarried, she sued Travis to change custody of their three-year-old daughter to her. The chancery court denied her request. Eleven days following the ruling, Kristy and Aaron traveled to the Norfolk Naval Base, Virginia, where Travis was stationed, to visit the daughter. Kristy and Aaron testified that, shortly after picking her up, they noticed bite marks and scratches on her arm. The two then took the daughter to a local hospital in Norfolk. At the hospital, while Aaron was looking for the emergency room, Kristy took the daughter to use the restroom. Kristy testified that while in the restroom her daughter told her that her “pee pee” hurt, and that her daddy had rubbed it with his hand. Kristy reported the conversation to Aaron, who suggested that the emergency room personnel be advised. The hospital staff contacted the police and Child Protective Services with the Department of Human Services for the City of Norfolk. An emergency order was entered in Virginia giving Kristy temporary custody for ninety days pending further investigation. An advocacy hearing was held shortly thereafter in Virginia but was subsequently dismissed for lack of jurisdiction. Kristy found a social worker in Mississippi to meet with her daughter. Kristy also took the daughter to a child-advocacy center in Tupelo where multiple child therapists conducted forensic interviews with the daughter. Kristy then filed another petition in Lowndes County to modify the final decree, seeking physical custody. Following trial, the chancery court dismissed with prejudice Kristy’s petition to modify the final decree, and ordered that custody of the daughter immediately be returned to Travis. Kristy appeals. |
| Summary of Opinion Analysis: | Issue 1: Material change in circumstances Kristy argues that the chancellor, in his decision to go against the guardian ad litem’s recommendation that custody be modified to the mother, failed to consider all of the additional facts developed at the hearing that were considered by the GAL. In a custody modification proceeding, the moving party must first prove by a preponderance of the evidence that, since the entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child. The moving party must then show by like evidence that the best interest of the child requires the change of custody. In any case where a GAL is appointed to represent a child, the chancellor’s role as fact-finder requires the evidence presented by the GAL, as well as all other relevant evidence, to be considered and given such weight as the chancellor determines it deserves. In this case, the chancellor heard conflicting testimony from the two parties and their witnesses about whether Travis had sexually abused his daughter. The GAL stated that her preliminary report was inconclusive as to whether Travis had sexually abused his daughter. As such, the weight to be accorded to it as evidence was solely for the chancellor, sitting as the trier of fact and ultimate final arbiter, to decide. Notably, none of the Mississippi experts who conducted forensic interviews with the daughter testified. Furthermore, the authorities in Virginia who also conducted such interviews determined Kristy’s charges to be unfounded. Thus, the chancellor’s decision to deny Kristy’s petition to modify the final custody decree is without error. Issue 2: Temporary custody As part of the chancery court’s decree denying Kristy’s petition to modify, the chancellor ordered the immediate return of the daughter to the custody of Travis. The order also included a provision that in the event the Navy’s no-contact order had not been lifted, the daughter’s custody was to be placed with Travis’s mother. Kristy argues that this ruling was error. In every custody case between a grandparent and a natural parent, there exists a legal presumption in favor of the natural parent which may be rebutted upon a clear showing that the parent has abandoned the child, or the conduct of the parent is so immoral as to be detrimental to the child, or the parent is unfit mentally or otherwise to have custody the child. While the chancellor did not make a specific finding that Kristy was either unfit or had engaged in immoral conduct detrimental to the daughter’s welfare, the chancellor’s order does not terminate her parental rights, nor does it appear to alter the status quo of the final divorce decree. Kristy’s rights as the non-custodial parent, such as her visitation rights, have not been changed. Placing the daughter in the custody of Travis’s mother until the Navy’s no-contact order was lifted was a sensible resolution concurrent with Travis’s custodial rights. |
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