MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Judiciary A

By: Representative Formby, Cameron, Masterson, Robertson, Snowden

AN ACT TO PROVIDE FOR THE RELOCATING OF A CHILD'S RESIDENCE WHEN SUCH CHILD IS THE SUBJECT OF A CUSTODY ORDER; TO DEFINE CERTAIN TERMS; TO PROVIDE FOR THE APPLICABILITY OF THIS ACT; TO PROVIDE NOTICE REQUIREMENTS FOR RELOCATION; TO PROVIDE THAT FAILURE TO GIVE NOTICE OF RELOCATION OR RELOCATION WITHOUT COURT AUTHORIZATION MAY RESULT IN CERTAIN OTHER LEGAL RAMIFICATIONS; TO AUTHORIZE RELOCATION UNLESS OBJECTION HAS OCCURRED; TO PROVIDE OBJECTION PROCEDURES; TO PROVIDE FOR HEARING PRIORITY; TO PROVIDE FOR TEMPORARY ORDERS; TO PROVIDE THAT PROPOSED RELOCATION IS NOT A BASIS FOR MODIFICATION; TO PROVIDE FACTORS TO DETERMINE CONTESTED RELOCATION; TO PROVIDE A BURDEN OF PROOF; TO AUTHORIZE THE COURT TO REQUIRE SECURITY; TO REQUIRE THE APPLICATION OF FACTORS AT THE INITIAL HEARING IF THE ISSUE OF RELOCATION IS PRESENTED; TO PROVIDE SANCTION FOR UNWARRANTED OR FRIVOLOUS PROPOSALS; TO PROVIDE CONTINUING JURISDICTION; TO AMEND SECTIONS 93-5-23 AND 93-11-65, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; 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 clearly indicates otherwise:

(a) "Equal physical custody" means that the parents share equal parental authority of the child absent a court order to the contrary.

(b) "Parent entitled to primary custody" means a parent designated by a court order as the sole custodian or primary or domiciliary custodian within a joint custody arrangement.

(c) "Principal residence of a child" means:

(i) The location designated by a court to be the primary residence of the child.

(ii) In the absence of a court order, the location at which the parties have expressly agreed that the child will primarily reside.

(iii) In the absence of a court order or an express agreement, the location, if any, at which the child has spent the majority of time during the prior six (6) months.

(d) "Relocation" means:

(i) Intent to establish legal residence with the child at any location outside of the state.

(ii) If there is no court order awarding custody, an intent to establish legal residence with the child at any location within the state that is at a distance of more than one hundred fifty (150) miles from the other parent. If there is a court order awarding custody, then an intent to establish legal residence with the child at a distance of more than one hundred fifty (150) miles from the domicile of the primary custodian at the time the custody decree was rendered.

(iii) A change in the principal residence of a child for a period of sixty (60) days or more, but does not include a temporary absence from the principal residence.

SECTION 2. (1) This act shall apply to an order regarding custody of or visitation with a child issued:

(a) On or after July 1, 2001.

(b) Before July 1, 2001, if the existing custody order does not expressly govern the relocation of the child.

(2) To the extent that a provision of this act conflicts with an existing custody order, this act shall not apply to the terms of that order that governs relocation of the child.

(3) This act shall not apply when:

(a) The parents of a child have entered into an express written agreement for a temporary relocation of that child's principal residence, regardless of the duration of the temporary relocation.

(b) An order issued pursuant to any restraining order, preliminary injunction, permanent injunction, or any protection order prohibiting a spouse from harming or going near or in the proximity of the other spouse is in effect.

SECTION 3. (1) A parent entitled to primary custody of a child shall notify the other parent of a proposed relocation of the child's principal residence as required by Section 4 of this act.

(2) If both parents have equal physical custody of a child, a parent shall notify the other parent of a proposed relocation of the child's principal residence as required by Section 4 of this act.

(3) In the absence of a court order or express written agreement confected by the parties which designates the principal residence of a child, a parent shall notify the other parent of a proposed relocation of the child's principal residence as required by Section 4 of this act.

SECTION 4. (1) Notice of a proposed relocation of the principal residence of a child shall be given by registered or certified mail, return receipt requested, to the last known address of the parent no later than either:

(a) The thirtieth day before the date of the intended move or proposed relocation.

(b) The tenth day after the date that the parent knows the information required to be furnished by subsection (2) of this section, if the parent did not know and could not reasonably have known the information in sufficient time to comply with the thirty-day notice, and it is not reasonably possible to extend the time for relocation of the child.

(2) The following information, if available, shall be included with the notice of intended relocation of the child:

(a) The intended new residence, including the specific address, if known.

(b) The mailing address, if not the same.

(c) The home telephone number, if known.

(d) The date of the intended move or proposed relocation.

(e) A brief statement of the specific reasons for the proposed relocation of a child, if applicable.

(f) A proposal for a revised schedule of visitation with the child.

(3) A parent required to give notice of a proposed relocation shall have a continuing duty to provide the information required by this section as that information becomes known.

SECTION 5. A parent seeking to relocate the principal residence of a child shall not, absent consent, remove the child pending resolution of dispute, or final order of the court, unless the parent obtains a temporary order to do so pursuant to Section 10 of this act.

SECTION 6. The court may consider a failure to provide notice of a proposed relocation of a child or relocation without court authorization as provided by Sections 3 and 4 of this act as:

(a) A factor in making its determination regarding the relocation of a child.

(b) A basis for ordering the return of the child if the relocation has taken place without notice or court authorization.

(c) Sufficient cause to order the parent seeking to relocate the child to pay reasonable expenses and attorney's fees incurred by the person objecting to the relocation.

SECTION 7. The primary custodian of a child or a parent who has equal physical custody may relocate the principal residence of a child after providing notice as provided by Sections 3 and 4 of this act unless the parent entitled to notice initiates a proceeding seeking a temporary or permanent order to prevent the relocation within twenty (20) days after the receipt of the notice.

SECTION 8. (1) A parent must initiate a summary proceeding objecting to a proposed relocation of the principal residence of a child within twenty (20) days after receipt of notice and seek a temporary or permanent order to prevent the relocation.

(2) Upon request of a copy of notice of objection, the court may promptly appoint an independent mental health expert to render a determination as to whether the proposed relocation is in the best interest of the child.

SECTION 9. A hearing on either a temporary or permanent order permitting or restricting relocation shall be accorded appropriate priority on the court's docket.

SECTION 10. (1) The court may grant, after a notice of objection has been filed, a temporary order allowing a parent to relocate.

(2) The court, upon the request of the moving parent, may hold a limited evidentiary hearing on the proposed relocation but may not grant court authorization to remove the child on an ex parte basis.

(3) If the court issues a temporary order authorizing a parent to relocate with the child, the court may not give undue weight to the temporary relocation as a factor in reaching its final determination.

(4) If temporary relocation of a child is permitted, the court may require the parent relocating the child to provide reasonable security guaranteeing that the court ordered visitation with the child will not be interrupted or interfered with by the relocating parent or that the relocating parent will return the child if court authorization for the removal is denied at the final hearing.

SECTION 11. Providing notice of a proposed relocation of a child shall not constitute a change of circumstance warranting a change of custody. Moving without prior notice or moving in violation of a court order may constitute a change of circumstances warranting a modification of custody.

SECTION 12. In reaching its decision regarding a proposed relocation, the court shall consider the following factors:

(a) The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the nonrelocating parent, siblings and other significant persons in the child's life.

(b) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational and emotional development, taking into consideration any special needs of the child.

(c) The feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.

(d) The child's preference, taking into consideration the age and maturity of the child.

(e) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.

(f) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to, financial or emotional benefit or educational opportunity.

(g) The reasons of each parent for seeking or opposing the relocation.

(h) Any other factors affecting the best interest of the child.

SECTION 13. The relocating parent has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child.

SECTION 14. If relocation of a child is permitted, the court may require the parent relocating the child to provide reasonable security guaranteeing that the court ordered visitation with the child will not be interrupted or interfered with by the relocating party.

SECTION 15. If the issue of relocation is presented at the initial hearing to determine custody of and visitation with a child, the court shall apply the factors set forth in Section 12 of this act in making its initial determination.

SECTION 16. (1) After notice and a reasonable opportunity to respond, the court may impose a sanction on a parent proposing a relocation of the child or objecting to a proposed relocation of a child it determines that the proposal was made or the objection was filed:

(a) To harass the other parent or to cause unnecessary delay or needless increase in the cost of litigation.

(b) Without being warranted by existing law or based on a frivolous argument.

(c) Based on allegations and other factual contentions which have no evidentiary support nor, if specifically so identified, could not have been reasonably believed to be likely to have evidentiary support after further investigation.

(2) A sanction imposed under this section shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. The sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty to the court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.

SECTION 17. If the court grants authorization to relocate, the court may retain continuing, exclusive jurisdiction of the case after relocation of the child as long as the nonrelocating parent remains in the state.

SECTION 18. Section 93-5-23, Mississippi Code of 1972, is amended 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 shall 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.

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.

The court is authorized to issue orders regarding the relocation of a child's residence as provided in Sections 1 through 17 of House Bill No. ____, 2001 Regular Session.

SECTION 19. Section 93-11-65, Mississippi Code of 1972, is amended as follows:

93-11-65. (1) (a) In addition to the right to proceed under Section 93-5-23, Mississippi Code of 1972, and in addition to the remedy of habeas corpus in proper cases, and other existing remedies, the chancery court of the proper county shall have jurisdiction to entertain suits for the custody, care, support and maintenance of minor children and to hear and determine all such matters, and shall, if need be, require bond, sureties or other guarantee to secure any order for periodic payments for the maintenance or support of a child. 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. Proceedings may be brought by or against a resident or nonresident of the State of Mississippi, whether or not having the actual custody of minor children, for the purpose of judicially determining the legal custody of a child. All actions herein authorized may be brought in the county where the child is actually residing, or in the county of the residence of the party who has actual custody, or of the residence of the defendant. Process shall be had upon the parties as provided by law for process in person or by publication, if they be nonresidents of the state or residents of another jurisdiction or are not found therein after diligent search and inquiry or are unknown after diligent search and inquiry; provided that the court or chancellor in vacation may fix a date in termtime or in vacation to which process may be returnable and shall have power to proceed in termtime or vacation. Provided, however, that if the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, and that it would be to the best interest and welfare of the children, then any such child who shall have reached his twelfth birthday shall have the privilege of choosing the parent with whom he shall live.

(b) An order of child support shall specify the sum to be paid weekly or otherwise. In addition to providing for support and education, the order shall also provide for the support of the child prior to the making of the order for child support, and such other expenses as the court may deem proper.

(c) The court may require the payment to be made to the custodial parent, or to some person or corporation to be designated by the court as trustee, but if the child or custodial parent is receiving public assistance, the Department of Human Services shall be made the trustee.

(d) The noncustodial parent's liabilities for past education and necessary support and maintenance and other expenses are limited to a period of one (1) year next preceding the commencement of an action.

(2) Provided further, that where the 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 in proportion to the relative financial ability of each.

(3) 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.

(4) When a charge of abuse or neglect of a child first arises in the course of a custody or maintenance action pending in the chancery court pursuant to this section, the chancery court may proceed with the investigation, hearing and determination of such abuse or neglect charge as a part of its hearing and determination of the custody or maintenance issue as between the parents, as provided in Section 43-21-151, notwithstanding the other provisions of the Youth Court Law. The proceedings in chancery court on the abuse or neglect charge shall be confidential in the same manner as provided in youth court proceedings, and the chancery court shall appoint a guardian ad litem in such cases, as provided under Section 43-21-121 for youth court proceedings, 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 the public.

(5) Each party to a paternity or child support proceeding shall notify the other within five (5) days after any change of address. In addition, the noncustodial and custodial parent shall file and update, with the court and with the state case registry, information on that party's location and identity, including social security number, residential and mailing addresses, telephone numbers, photograph, driver's license number, and name, address and telephone number of the party's employer. This information shall be required upon entry of an order or within five (5) days of a change of address.

(6) In any case subsequently enforced by the Department of Human Services pursuant to Title IV-D of the Social Security Act, the court shall have continuing jurisdiction.

(7) In any subsequent child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of a party, due process requirements for notice and service of process shall be deemed to be met with respect to the party upon delivery of written notice to the most recent residential or employer address filed with the state case registry.

(8) 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.

(9) Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic tests or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.

(10) The court is authorized to issue orders regarding the relocation of a child's residence as provided in Section 1 through 17 of House Bill No. ___, 2001 Regular Session.

SECTION 20. This act shall take effect and be in force from and after July 1, 2001.