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WHAT DOES IT TAKE TO CHANGE CUSTODY?


In a June 4, 2012, blog post, I discussed the necessity for showing a material adverse change in circumstances in the custodial parent’s household adversely affecting the child. I discussed the Sullivan case where 32-year-old Kenneth Sullivan had custody of his young daughter through divorce proceedings. In a later modification, it was proved that Kenneth was having a sexual affair with a 19-year-old and had actually snuck into the 19-year-old’s parent’s home at night to have sex with her. Kenneth also admitted to drinking and driving but denied doing it with his daughter in the car. The daughter, however, told the Guardian Ad Litem that Kenneth did, in fact, drink while driving her in the car. It was also established that Kenneth had friends who used crystal meth.

The trial court was “troubled” by Kenneth’s drinking and driving and immoral behavior, but concluded that since there was no proof this behavior had an adverse impact on the daughter, no change in custody was warranted under our law. The Court of Appeals affirmed, stating that no change was warranted because the four-year-old daughter had not exhibited any harm from this conduct. This was a correct reasoning on the part of the trial judge according to the Court of Appeals. Sullivan v. Sullivan, No. 2010-CA-01847-COA (Decided May 29, 2012.)

This ruling must be tempered by law which states that a trial court does not have to wait for harm to appear.
“[W]here a child living in a custodial environment clearly adverse to the child’s best interest[] somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment.” Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996).
And, this law must be tempered with law that states that if a parent corrects the adverse situation, a change in custody may not be granted. Ruth v. Burchfield, 23 So. 3d 600, 606-07 (¶20) (Miss. Ct. App. 2009)

Confused?