1997 Regular Session
To: Judiciary A
By: Representatives Smith (35th), Cameron, Chaney, Franks, Howell, Robinson (84th), Wells-Smith
House Bill 1183
AN ACT TO AMEND SECTION 93-5-24, MISSISSIPPI CODE OF 1972, TO REVISE THE AWARDING OF CUSTODY IN DIVORCE PROCEEDINGS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The Legislature finds and declares that it is the public policy of this state to assure minor children frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.
The Legislature further finds and declares that in any proceeding where there is at issue the custody of a minor child or children, the court may, during the pendency of the proceeding or any time thereafter, make such order for the custody of the child or children during minority as it may deem necessary or proper.
SECTION 2. Section 93-5-24, Mississippi Code of 1972, is amended as follows:
93-5-24. (1) (a) "Joint legal custody" means that the parents shall have voluntarily allocated or the court shall have decreed between them the decision-making rights, responsibilities and authority relating to the health, education and welfare of a child.
(b) "Joint physical custody" means an order awarding each of the parents significant periods of time in which a child resides with or under the care and supervision of each of the parents. Joint physical custody shall be shared by the parents in such a way as to assure a child frequent and continuing contact with both parents.
(c) "Sharing parental responsibility" means joint physical and legal custody.
(2) Custody shall be awarded in the following order of preference according to the best interest of the child:
(a) To both parents jointly. The court, in its discretion, may require the parents to submit a plan for implementation of the custody order upon the finding that both parents are suitable parents or the court may require the parents acting individually or in concert to submit a custody implementation plan to the court prior to the issuance of a custody decree.
(b) In making an order for custody to either parent the court shall consider, among other factors, which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent. The court shall not give preference to a parent as a custodian because of the parent's sex. The burden of proof that shared parental responsibility would not be in the best interest of the child shall be upon the parent requesting sole custody.
(3) There shall be a presumption in all custody cases which are brought after July 1, 1997, that shared parental responsibility is in the best interest of the minor child unless:
(a) The parents have agreed to an award of custody to one (1) parent or agree in open court to submit to a hearing for the purpose of determining custody of the minor child of the marriage; or
(b) The court finds that shared parental responsibility would be detrimental to a particular child of a specific marriage.
The presumption, affecting the burden of proof that shared responsibility is in the best interest of a minor child, shall apply to any court proceeding to modify custody filed after July 1, 1997.
For the purpose of assisting the court and making a determination whether an award of shared responsibility is appropriate, the court may direct that an investigation be conducted. If the court denies entering an order awarding shared responsibility and joint custody pursuant to this section in the initial divorce proceeding or in any subsequent suit filed by either party to modify the decree of custody, the court shall state specific findings or fact as to each and every reason as to why the court should not award shared parental responsibility.
(4) Visitation rights consisting of every other weekend and some time during the summer are presumed to be insufficient contact with the noncustodial parent and the burden of proof is upon the party seeking to restrict visitation to only two (2) weekends a month to prove that the granting of more visitation rights would not be in the best interest of the child and the court shall make specific findings in writing as to why only two (2) weekends per month plus summer and holiday visitation should be awarded.
(5) An award of joint physical and legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and unless allocated in a portion of the decree, the parents shall confer with each other in the exercise of decision-making rights, responsibilities and authorities. All doctors, psychologists, psychiatrists, private schools, public schools and hospitals shall release to either parent upon a written request all records concerning a minor child. The medical provider may charge a reasonable copying fee for the release of such records. In the event that the medical provider or public or private school fails to comply with the release of these documents, the medical provider shall be subject to a penalty of an assessment of all attorney fees incurred by the parent in seeking a court order to obtain such records plus other sanctions as the chancery court may deem appropriate.
(6) When one parent is granted sole custody of a minor child, the other parent shall be given reasonable rights of visitation in light of the circumstances. Such visitation rights shall be as liberal as possible to effectuate the purposes of this chapter in assuring that the child has a frequent and continuing relationship with the noncustodial parent. In the event that the custodial parent refuses to comply with the visitation order, the custodial parent shall be required to pay all attorney fees, lost wages and any other expenses incurred by the noncustodial parent in enforcing his visitation rights. All petitions or suits filed in the chancery court seeking a writ of assistance for the enforcement of custody orders, visitation orders and child support orders shall be considered priority cases because they involved the basic welfare of a minor child or children and such petitions shall preempt all other chancery court proceedings. Suits seeking a writ of assistance for the enforcement of visitation rights or the enforcement of a custody order, suits seeking the imposition of a wage withholding order and suits seeking a contempt order for failure to pay child support shall be heard within ten (10) days after the petition is filed and shall be triable within five (5) days after service of process.
(7) In the event that the chancellors serving in the district in which the case arises are unable to hear the case due to a conflict or recusal, the Chief Justice of the Supreme Court shall immediately appoint a special chancellor who shall hear such case within ten (10) days. The special chancellor shall have continuing jurisdiction to hear all future proceedings involving the same child or children as long as the special chancellor remains a licensed attorney in the State of Mississippi.
(8) Any order for shared parental responsibility may be modified or terminated upon the petition of one (1) or both parents or on the courts' own motion if it is shown that the best interest of the child requires modification or termination of the order. The court shall state in writing the reasons for modification or termination if either parent opposes the modification or termination.
(9) In any consideration as to custody, the court shall consider the fact that one of the parents has moved a significant distance from the original home of the child. With respect to any order of visitation or transportation, the presumption shall be that the parent that moved away from the original county where the parties lived and were divorced shall bear the expense and costs of transportation during all periods of visitation. The burden of proof shall be on the parent moving to show cause as to why this costs and expenses of transportation should not be paid by the moving party.
(10) Subject to jurisdictional requirements, any order for the custody of a minor child of a marriage entered by a court in this state or any other state may be modified at any time in accordance with this section and upon the hearing to modify such order the presumption shall be in favor of joint custody. If joint custody is not awarded, the court in a suit for modification shall give significant consideration and significant weight in awarding custody to the parent that will more likely insure continuing and frequent contact with the other parent.
(11) In jurisdictions having a private or public supporting conciliation service, the court or parties may at any time, pursuant to local rules of court, consult with the conciliation service for the purposes of assisting the parties to formulate a plan for implementation of the custody order or to resolve any controversy which has arisen in the implementation of a plan of custody.
(12) One (1) parent may be designated as a caretaker in situations where public assistance is deemed necessary or appropriate or in situations where such designation is necessary for insurance purposes.
(13) In making an order of shared parental responsibilities the court shall specify the right of each parent to the physical control of the child in sufficient detail to enable a parent deprived of that control to enforce the court order and enable law enforcement authorities to implement laws for relief concerning custodial interference.
SECTION 3. This act shall take effect and be in force from and after its passage.