1997 Regular Session
To: Judiciary A; Appropriations
By: Representative Short
House Bill 329
AN ACT TO CREATE A PILOT PROJECT FOR PREDIVORCE COUNSELING FOR COUPLES WITH MINOR CHILDREN IN THE EIGHTH CHANCERY COURT DISTRICT; TO REQUIRE COMPLETION OF AN EDUCATIONAL PROGRAM BEFORE THE GRANTING OF A DIVORCE; TO PROVIDE FOR THE CHARGING OF FEES; TO PROVIDE FOR EXEMPTION FROM FEES FOR INDIGENTS; TO SPECIFY THE AUTHORITY OF THE COURT AND ACTIONS WHICH MAY BE TAKEN; TO AUTHORIZE A JUDGE TO WAIVE COMPLETION OF A PROGRAM IF NECESSARY; TO PROVIDE FOR THE PROMULGATION OF FORMS AND CERTIFICATE OF COMPLETION; TO CREATE AN ADVISORY PANEL TO ASSIST IN CARRYING OUT CERTAIN PROVISIONS OF THIS ACT; TO REQUIRE RECUSING IN CERTAIN CASES; TO PROVIDE FOR THE SUBMISSION OF POTENTIAL PROGRAMS FOR APPROVALS; TO AMEND SECTION 93-5-2, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; TO BRING FORWARD SECTION 93-5-23, MISSISSIPPI CODE OF 1972, REGARDING CUSTODY OF CHILDREN AND ALIMONY FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The Legislature finds that it is necessary to provide for the speedy, efficient and inexpensive resolution of potential disputes between divorcing parents of minor children. The Legislature further finds that in order to meet the needs of the minor children and to reduce potential conflicts between divorcing parents over issues that frequently occur between them, it is necessary to create a pilot project in the Eighth Chancery Court District to explore the use of educational seminars before granting a divorce and to document the results of the pilot project to determine if such programs shall be required statewide. The Legislature further finds that in order to facilitate a reduction in disputes between divorcing parents and minor children, it is necessary for the parents to attend an educational seminar or workshop prior to the finalization of divorce judgments between the parties.
SECTION 2. This act shall apply to all parties in the Eighth Chancery Court District in all divorce, separate maintenance, paternity, change of custody, visitation, legitimization and other domestic relations actions filed on or after the date of the adoption of this act wherein the parties are the parents of minor children under the age of eighteen (18) born of the marriage, or adopted.
SECTION 3. All parties shall successfully complete the program hereafter known as "Seminar for Divorcing Parents of Minor Children." The parties and their attorneys shall be advised of approved presenters by a list thereof posted in a prominent place in the office of each chancery clerk. No presentation, workshop, seminar or other program shall be acceptable, except those programs, seminars and workshops on an approved list to be furnished by the clerk of this court.
SECTION 4. The court ordered seminar shall be successfully completed within thirty (30) days of service of process of the original complaint upon the original defendant, or thirty (30) days following the entry of appearance or waiver of process. There shall be a fee of Seventy Dollars ($70.00) for a couple or Thirty-five Dollars ($35.00) per person. No person shall be denied participation in such program or seminar who is indigent. The fees charged shall pay for the costs of programs or seminars under this act.
SECTION 5. Upon a party's failure to successfully complete the seminar pursuant to this act, the trial judge may take appropriate action, including, but not limited to actions for citation for contempt, either on the court's own motion or on the motion of the other party. The court may also, upon the failure to successfully complete the seminar, impose such other sanctions or actions as the court may deem necessary and appropriate under the circumstances.
SECTION 6. For good cause shown, the trial judge may waive the requirement of completion of this program in individual cases, in said event, the trial judge shall enter the waiver by order of this court specifying the reasons why the court deemed the waiver necessary and proper under the circumstances.
SECTION 7. The Eighth Chancery Court District shall promulgate necessary forms to be supplied by the clerk of this court and certified by the presenter reflecting completion of the program. Additional forms shall be promulgated to be completed by the presenter showing withdrawal or noncompletion of the program by any participant. The presenters shall, after the successful completion of the program, be required as a condition of being on the approved list of presenters, furnish to the clerk of this court a certificate of completion for each participant. The clerk of this court shall file said certificate of completion in the official court file in said cause.
SECTION 8. The senior chancellor of this district shall appoint an advisory panel composed of three (3) present or former family law masters, who shall be responsible for promulgating necessary forms to be kept by the clerk and use in the program. Additionally, the panel of family law masters shall review materials and seminar topics of each presenter. The panel shall then recommend to the judges of this district which presenters shall be authorized to conduct the seminar. Only those presenters who are on the approved list shall be authorized to conduct such seminars for divorcing parents with minor children. No certificate of completion shall be recognized by the court from any group, clinic, therapist or other presenter except those presenters on the approved list. The clerk of this court shall prepare the approved list as directed by the court and furnish to all counsel and any divorcing parent with minor children a list of the names, addresses and telephone numbers, including dates of program availability and place of program availability as to all presenters.
SECTION 9. Each presenter must agree to present at least two (2) programs per month.
SECTION 10. Private practitioners, clinicians, counselors, psychologists, psychiatrists, therapists, social workers or any other such presenter who is therapeutically involved with a client, child or client's family must recuse himself or herself from providing seminar services to the member families.
SECTION 11. No presenter shall be allowed to obtain therapy referrals from parents and their children who have participated in the seminar for divorcing parents with minor children taught by any member of the staff or associates of a particular practice.
SECTION 12. All presenters of the seminar for divorcing parents with minor children shall accept indigents on an equally proportionate basis. Indigent status shall be determined by the court on proper petition.
SECTION 13. The seminar shall be an educational seminar which focuses on assisting children in times of stress. The seminar shall be in the nature of a lecture type format, which requires little or no interaction participation, and is intended to be nonthreatening, supportive and informational. The primary goal of the seminar is to provide practical advice to parents who are going through a divorce. The seminar is neither designed nor intended to provide legal advice nor induce anyone into participating in any type of therapy or other counseling. The program shall include the topics of: the needs of children at different ages, stress indicators in children, age appropriate expectations for children, the grief process, reducing stress for children through a "good" divorce, the changing parental and marital roles, visitation suggestions to enhance a child's relationship with both parents, financial obligations of child rearing, conflict management and dispute resolution. Each seminar shall be four (4) hours long and may be conducted in one (1) session or two (2) separate two (2) hour sessions.
SECTION 14. Those wishing to become presenters shall submit their program curriculum and qualifications to the panel of family law masters appointed by the Eighth Chancery Court District. Additionally, upon recommendation of the panel of family law masters or upon the court's own motion, or motion by any other interested party, a presenter may be removed, for good cause, from the list of approved presenters.
SECTION 15. Section 93-5-2, Mississippi Code of 1972, is amended as follows:
93-5-2. (1) Divorce from the bonds of matrimony may be granted on the ground of irreconcilable differences, but only upon the joint complaint of the husband and wife or a complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process.
(2) If the parties provide by written agreement for the custody and maintenance of any children of that marriage, including compliance with Sections 1 through 14 of House Bill No. , 1997 Regular Session, and for the settlement of any property rights between the parties and the court finds that such provisions are adequate and sufficient, the agreement may be incorporated in the judgment, and such judgment may be modified as other judgments for divorce.
(3) If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto. The failure or refusal of either party to agree as to adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between the parties, or any portion of such issues, or the failure or refusal of any party to consent to permit the court to decide such issues, shall not be used as evidence, or in any manner, against such party. No divorce shall be granted pursuant to this subsection until all matters involving custody and maintenance of any child of that marriage and property rights between the parties raised by the pleadings have been either adjudicated by the court or agreed upon by the parties and found to be adequate and sufficient by the court and included in the judgment of divorce. Appeals from any orders and judgments rendered pursuant to this subsection may be had as in other cases in chancery court only insofar as such orders and judgments relate to issues that the parties consented to have decided by the court.
(4) Complaints for divorce on the ground of irreconcilable differences must have been on file for sixty (60) days before being heard. Except as otherwise provided in subsection (3) of this section, a joint complaint of husband and wife or a complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process, for divorce solely on the ground of irreconcilable differences, shall be taken as proved and a final judgment entered thereon, as in other cases and without proof or testimony in termtime or vacation, the provisions of Section 93-5-17 to the contrary notwithstanding.
(5) Except as otherwise provided in subsection (3) of this section, no divorce shall be granted on the ground of irreconcilable differences where there has been a contest or denial; provided, however, that a divorce may be granted on the grounds of irreconcilable differences where there has been a contest or denial, if the contest or denial has been withdrawn or cancelled by the party filing same by leave and order of the court.
(6) Irreconcilable differences may be asserted as a sole ground for divorce or as an alternate ground for divorce with any other cause for divorce set out in Section 93-5-1.
SECTION 16. Section 93-5-23, Mississippi Code of 1972, is brought forward as follows:
93-5-23. When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of the sum so allowed. Orders touching on the custody of the children of the marriage may be made in accordance with the provisions of Section 93-5-24. The court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require. However, where proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each. In the event a legally responsible parent has health insurance available to him or her through an employer or organization that may extend benefits to the dependents of such parent, any order of support issued against such parent may require him or her to exercise the option of additional coverage in favor of such children as he or she is legally responsible to support.
Whenever the court has ordered a party to make periodic payments for the maintenance or support of a child, but no bond, sureties or other guarantee has been required to secure such payments, and whenever such payments as have become due remain unpaid for a period of at least thirty (30) days, the court may, upon petition of the person to whom such payments are owing, or such person's legal representative, enter an order requiring that bond, sureties or other security be given by the person obligated to make such payments, the amount and sufficiency of which shall be approved by the court. The obligor shall, as in other civil actions, be served with process and shall be entitled to a hearing in such case.
Whenever in any proceeding in the chancery court concerning the custody of a child a party alleges that the child whose custody is at issue has been the victim of sexual or physical abuse by the other party, the court may, on its own motion, grant a continuance in the custody proceeding only until such allegation has been investigated by the Department of Human Services. At the time of ordering such continuance the court may direct the party, and his attorney, making such allegation of child abuse to report in writing and provide all evidence touching on the allegation of abuse to the Department of Human Services. The Department of Human Services shall investigate such allegation and take such action as it deems appropriate and as provided in such cases under the Youth Court Law (being Chapter 21 of Title 43, Mississippi Code of 1972) or under the laws establishing family courts (being Chapter 23 of Title 43, Mississippi Code of 1972).
If after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney's fees incurred by the defending party in responding to such allegation.
The court may investigate, hear and make a determination in a custody action when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151, and in such cases the court shall appoint a guardian ad litem for the child as provided under Section 43-21-121, who shall be an attorney. Unless the chancery court's jurisdiction has been terminated, all disposition orders in such cases for placement with the Department of Human Services shall be reviewed by the court or designated authority at least annually to determine if continued placement with the department is in the best interest of the child or public.
SECTION 17. This act shall take effect and be in force from and after its passage.