MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary

By: Senator(s) Ferris

AN ACT RELATING TO FAMILY VIOLENCE; TO PROHIBIT THE COURT FROM ORDERING MEDIATION IN ANY JUDICIAL PROCEEDING WHERE A PARTY HAS BEEN THE VICTIM OF FAMILY VIOLENCE; TO AMEND SECTION 93-5-23, MISSISSIPPI CODE OF 1972, TO CREATE A PRESUMPTION THAT NO PARENT WHO HAS A HISTORY OF PERPETRATING FAMILY VIOLENCE SHALL BE AWARDED CUSTODY OF CHILDREN, AND TO REQUIRE TEMPORARY RESTRAINING ORDERS IN ALL SEPARATION, DIVORCE, CHILD CUSTODY AND CHILD VISITATION CASES IN FAMILY VIOLENCE SITUATIONS; TO REQUIRE MENTAL HEALTH PROFESSIONALS IN SUCH FAMILY VIOLENCE JUDICIAL PROCEEDINGS TO HAVE CERTAIN QUALIFICATIONS; TO REQUIRE ALL COURT COSTS AND ATTORNEY FEES IN SUCH JUDICIAL PROCEEDINGS TO BE PAID BY THE PERPETRATOR OF THE FAMILY VIOLENCE; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The following words and phrases shall have the meanings ascribed herein unless the context indicates otherwise:

(a) "Abused parent" means the parent who has not committed family violence.

(b) "Court" means any chancery, circuit, youth, county or family court having jurisdiction over the parents or child at issue.

(c) "Family violence" includes physical or sexual abuse and any offense against the person committed by one parent against the other parent or against any of the children. Family violence does not include reasonable acts of self-defense utilized by one parent to protect himself or herself or a child in the family from the violence of the other parent.

(d) "Injunction" means a temporary restraining order or a preliminary or a permanent court-ordered injunction that prohibits the violent parent from in any way contacting the abused parent or the children except for specific purposes set forth in the injunction, which shall be limited to communications expressly dealing with the education, health and welfare of the children, or for any other purpose expressly agreed to by the abused parent. All such injunctions shall prohibit the violent parent from intentionally going within fifty (50) yards of the home, school, place of employment or person of the abused parent and the children or within fifty (50) feet of any of their automobiles without the express consent of the abused parent, except as may otherwise be necessary for court-ordered visitation or except as otherwise necessitated by circumstances considering the proximity of the parties' residence or place of employment.

(e) "Supervised visitation" means face-to-face contact between a parent and a child that occurs in the immediate presence of a supervising person approved by the court under conditions which prevent any physical abuse, threats, intimidation, abduction or humiliation of either the abused parent or the child. The supervising person shall not be any relative, friend, therapist or associate of the parent perpetrating family violence. With the consent of the abused parent, the supervising person may be a family member or friend of the abused parent. At the request of the abused parent, the court may order that the supervising person shall be a police officer or other competent professional. The parent who perpetrated family violence shall pay any and all costs incurred in the supervision of visitation. In no case shall supervised visitation be overnight or in the home of the violent parent.

(f) "Treatment program" means a course of evaluation and psychotherapy designed specifically for perpetrators of family violence and conducted by licensed mental health professionals.

SECTION 2. In any separation, divorce, child custody, visitation, child support or alimony proceeding, no spouse or parent who has satisfied the court that he or she, or any of the children, has been the victim of family violence perpetrated by the other spouse or parent, shall be court ordered to participate in mediation.

SECTION 3. Section 93-5-23, Mississippi Code of 1972, is amended as follows:

(1) 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.

(2) 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.

(3) 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).

(4) 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.

(5) 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.

(6) The duty of support of a child terminates upon the emancipation of the child. The court may determine that emancipation has occurred and no other support obligation exists when the child:

(a) Attains the age of twenty-one (21) years, or

(b) Marries, or

(c) Discontinues full-time enrollment in school and obtains full-time employment prior to attaining the age of twenty-one (21) years, or

(d) Voluntarily moves from the home of the custodial parent or guardian and establishes independent living arrangements and obtains full-time employment prior to attaining the age of twenty-one (21) years.

(7) There is created a presumption that no parent who has a history of perpetrating family violence, with subsequent conviction of such charges, shall be awarded sole or joint custody of a child. The presumption shall be overcome only by a preponderance of the evidence that the perpetrating parent has successfully completed a treatment program as defined in Section 1(f), Senate Bill No. 2614, 1997 Regular Session, is not abusing alcohol and the illegal use of drugs, and that the best interest of the child or children requires that parent's participation as a custodial parent because of the other parent's absence, mental illness or substance abuse or such other circumstances which affect the best interest of the child or children. The fact that the abused parent suffers from the effects of the abuse shall not be grounds for denying that parent custody.

(8) If the court finds that both parents have a history of perpetrating family violence, custody shall be awarded solely to the parent who is less likely to continue to perpetrate family violence. In such a case, the court shall mandate completion of a treatment program by the custodial parent. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person shall not allow access to a violent parent except as ordered by the court.

(9) If the court finds that a parent has a history of family violence, the court shall allow only supervised child visitation with that parent, conditioned upon that parent's participation in and completion of a treatment program. Unsupervised visitation shall be allowed only if it is shown by a preponderance of the evidence that the violent parent has successfully completed a treatment program, is not abusing alcohol and psychoactive drugs, poses no danger to the child, and that such visitation is in the child's best interest.

(10) If the court finds that a parent has sexually abused his or her child or children, the court shall prohibit all visitation and contact between the abusive parent and any child or children until such time, following a contradictory hearing, that the court finds that the abusive parent has successfully completed a treatment program designed for such sexual abusers and that supervised visitation is in the child's best interests. Any testimony by a licensed mental health professional with training,

(11) All separation, divorce, child custody and child visitation orders and judgments in family violence cases shall contain an injunction as defined in Section 1(d), Senate Bill No. 2614, 1997 Regular Session. Any violation of this injunction, if proved by the appropriate standard, shall be punished as contempt of court and shall result in a termination of all court-ordered child visitation.

(12) Whenever a parent is under indictment for any crime against the person of a child or other parent, the court, on motion of the state or the other parent, shall prohibit all contact between the indicted parent and the other spouse and all children of the family.

SECTION 4. Any mental health professional appointed by the court to conduct a custody evaluation in a case where family violence is an issue shall have current and demonstrable training and experience working with perpetrators and victims of family violence.

SECTION 5. In any family violence case, all court costs, attorney fees, evaluation fees and expert witness fees incurred by furtherance of this act shall be paid by the perpetrator of the family violence, including all costs of medical and psychological care for the abused spouse or for any of the children necessitated by the family violence.

SECTION 6. This act shall in no way affect the remedies set forth in any criminal or civil statutes of Mississippi.

SECTION 7. This act shall take effect and be in force from and after July 1, 1997.