2003 Regular Session
To: Judiciary A
By: Representative Whittington, McBride, Brown, Watson, Barnett (116th), Eads, Fredericks, Mayo
AN ACT TO AMEND SECTION 93-5-24, MISSISSIPPI CODE OF 1972, TO CREATE A PRESUMPTION THAT IT IS NOT IN THE BEST INTEREST OF THE CHILD TO AWARD SOLE OR JOINT CUSTODY OF A CHILD TO A PARENT WHO HAS A HISTORY OF PERPETRATING FAMILY VIOLENCE OR SEXUAL ABUSE; TO PROVIDE THAT THE PRESUMPTION AGAINST CUSTODY SHALL BE OVERCOME ONLY BY A PREPONDERANCE OF THE EVIDENCE THAT THE PERPETRATING PARENT HAS MET CERTAIN REQUIREMENTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 93-5-24, Mississippi Code of 1972, is amended as follows:
93-5-24. (1) Custody shall be awarded as follows according to the best interests of the child:
(a) Physical and legal custody to both parents jointly pursuant to subsections 2 through 7.
(b) Physical custody to both parents jointly pursuant to subsections 2 through 7 and legal custody to either parent.
(c) Legal custody to both parents jointly pursuant to subsections 2 through 7 and physical custody to either parent.
(d) Physical and legal custody to either parent.
(e) Upon a finding by the court that both of the parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child the court may award physical and legal custody to:
(i) The person in whose home the child has been living in a wholesome and stable environment; or
(ii) Physical and legal custody to any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
In making an order for custody to either parent or to both parents jointly, the court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.
(2) Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.
(3) In other cases, joint custody may be awarded, in the discretion of the court, upon application of one (1) or both parents.
(4) There shall be a presumption that joint custody is in the best interest of a minor child where both parents have agreed to an award of joint custody.
(5) (a) For the purposes of this section, "joint custody" means joint physical and legal custody.
(b) For the purposes of this section, "physical custody" means those periods of time in which a child resides with or is under the care and supervision of one of the parents.
(c) For the purposes of this section, "joint physical custody" means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.
(d) For the purposes of this section, "legal custody" means the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child.
(e) For the purposes of this section, "joint legal custody" means that the parents or parties share the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.
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, apportioned or decreed, the parents or parties shall confer with one another in the exercise of decision-making rights, responsibilities and authority.
(6) Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.
(7) There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.
(8) (a) There is created a presumption that it is not in the best interest of a child to award sole or joint custody of a child to a parent who has a history of perpetrating family violence, with one or more subsequent convictions of such charges. For the purposes of this section, the term "history of perpetrating family violence" means a pattern of behavior or a course of conduct, and not a single incident. The presumption against custody may be overcome only by a preponderance of the evidence that (i) the perpetrating parent has successfully completed a treatment program defined as a course of evaluation and psychotherapy designed specifically for perpetrators of family violence and conducted by licensed mental health professionals, (ii) the perpetrating parent is not abusing alcohol or illegally using drugs and (iii) the best interests 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 other such circumstances that affect the best interests of the child or children. Otherwise, the presumption may be overcome only if the court finds evidence that there is no significant risk of future family violence coupled with additional extraordinary circumstances that warrant the rejection of the presumption, including, but not limited to, habitual drug or alcohol abuse by the nonabusive parent that renders that parent unable to satisfactorily care for the child or children. The fact that the abused parent suffers from effects of the abuse are not grounds for denying that parent custody.
(b) If the court finds that both parents have a history of perpetrating family violence, custody may be awarded solely to the parent who is less likely to continue to perpetrate family violence. In such 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, who agrees not to allow access to a violent parent, except as ordered by the court.
(c) If the court finds that a person has a history of perpetrating family violence, the court may allow only supervised child visitation with that parent, conditioned upon that parent's participation in and completion of a treatment program. Unsupervised visitation may only be allowed if it is shown by a preponderance of the evidence that the violent parent has successfully completed a treatment program, is not abusing alcohol or illegal drugs, poses no danger to the child, and that such visitation is in the child's best interests.
(d) 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 the children until such time as 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 best interests of the child.
(e) For the purposes of this section, the term "family violence" is defined as physical harm, bodily injury, sexual activity compelled by physical force, simple or aggravated assault, or the intentional infliction of reasonable fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or simple or aggravated assault committed by one (1) parent against the other parent, the child or children of either or both of the parents, or the perpetrator's current spouse or cohabitating intimate partner. Family violence does not include reasonable acts of self-defense used by one (1) parent to protect himself or herself or a child in the family from the violence of the other parent or reasonable physical discipline of a child or children, such as spanking.
(f) All court costs, attorney's fees, evaluation fees and expert witness fees, in a divorce, child custody or child visitation action involving allegations of family violence where there has been a conviction for an incident of family violence shall be paid by the convicted party.
(9) Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including, but not limited to, medical, dental and school records, shall not be denied to a parent because the parent is not the child's custodial parent.
SECTION 2. This act shall take effect and be in force from and after July 1, 2003.