MISSISSIPPI LEGISLATURE
2022 Regular Session
To: Judiciary B
By: Representative Darnell
AN ACT TO AMEND SECTION 93-5-24, MISSISSIPPI CODE OF 1972, TO REQUIRE ANY COURT, IN WHICH CUSTODY IS IN DISPUTE AND ALLEGATIONS REGARDING EXPOSURE TO A CONVICTED SEX OFFENDER EXIST, TO INVESTIGATE AND CONSIDER THE FINDINGS OF THE ALLEGATIONS WHEN CONSIDERING THE BEST INTERESTS OF THE CHILD; TO REQUIRE A REBUTTABLE PRESUMPTION THAT SUCH EXPOSURE IS NOT IN THE BEST INTEREST OF THE CHILD; TO AMEND SECTION 97-5-42, MISSISSIPPI CODE OF 1972, TO REVISE THE PROVISIONS OF FELONY PARENTAL CHILD SEXUAL ABUSE TO INCLUDE GRANDPARENTS WHO ARE CONVICTED FOR SEXUAL ABUSE OF THEIR GRANDCHILDREN; TO AMEND SECTION 93-16-3, MISSISSIPPI CODE OF 1972, TO CONFORM GRANDPARENTS' VISITATION RIGHTS TO THE PRECEDING SECTIONS; 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 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 (1) 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) 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.
(9) (a) (i) In every proceeding where the custody of a child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered.
(ii) This presumption may only be rebutted by a preponderance of the evidence.
(iii) In determining whether the presumption set forth in subsection (9) has been overcome, the court shall consider all of the following factors:
1. Whether the perpetrator of family violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child because of the other parent's absence, mental illness, substance abuse or such other circumstances which affect the best interest of the child or children;
2. Whether the perpetrator has successfully completed a batterer's treatment program;
3. Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;
4. Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;
5. If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and
6. Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
(iv) The court shall make written findings to document how and why the presumption was or was not rebutted.
(b) (i) If custody is awarded to a suitable third person, it shall not be until the natural grandparents of the child have been excluded and such person shall not allow access to a violent parent except as ordered by the court.
(ii) If the court finds that both parents have a history of perpetrating family violence, but the court finds that parental custody would be in the best interest of the child, custody may be awarded solely to the parent less likely to continue to perpetrate family violence. In such a case, the court may mandate completion of a treatment program by the custodial parent.
(c) If the court finds that the allegations of domestic violence are completely unfounded, 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 allegations.
(d) (i) A court may award visitation by a parent who committed domestic or family violence only if the court finds that adequate provision for the safety of the child and the parent who is a victim of domestic or family violence can be made.
(ii) In a visitation order, a court may take any of the following actions:
1. Order an exchange of the child to occur in a protected setting;
2. Order visitation supervised in a manner to be determined by the court;
3. Order the perpetrator of domestic or family violence to attend and complete to the satisfaction of the court a program of intervention for perpetrators or other designated counseling as a condition of visitation;
4. Order the perpetrator of domestic or family violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and for twenty-four (24) hours preceding the visitation;
5. Order the perpetrator of domestic or family violence to pay a fee to defray the cost of supervised visitation;
6. Prohibit overnight visitation;
7. Require a bond from the perpetrator of domestic or family violence for the return and safety of the child; or
8. Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of family or domestic violence, or other family or household member.
(iii) Whether or not visitation is allowed, the court may order the address of the child or the victim of family or domestic violence to be kept confidential.
(e) The court may refer but shall not order an adult who is a victim of family or domestic violence to attend counseling relating to the victim's status or behavior as a victim, individually or with the perpetrator of domestic or family violence, as a condition of receiving custody of a child or as a condition of visitation.
(f) If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation.
(10) In every proceeding where the custody of a child is in dispute, and a parent, guardian, person in loco parentis or person with legal or physical custody of a child asserts that the other parent, guardian, person in loco parentis or person with legal or physical custody of a child, will place the child in the care, custody or physical presence of a convicted sex offender, the court shall investigate such assertion, and if found to be true, restrict custody and/or visitation based on its findings. There shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent, guardian, person in loco parentis or person with legal or physical custody of a child, who has a history of placing or plans to place the child in the care, custody or physical presence of a convicted sex offender. The court shall make written findings to document how and why the presumption was or was not triggered.
SECTION 2. Section 97-5-42, Mississippi Code of 1972, is amended as follows:
97-5-42. (1) (a) For purposes of this section, a conviction of felony parental child sexual abuse shall include any nolo contendere plea, guilty plea or conviction at trial to any offense enumerated in Section 93-15-121(h) or any other statute of the State of Mississippi whereby a parent may be penalized as a felon on account of sexual abuse of his or her own child, or a grandparent may be penalized as a felon on account of sexual abuse of his or her own grandchild; and shall include any conviction by plea or trial in any other state of the United States to an offense whereby a parent may be penalized as a felon for sexual abuse of his or her own child, or grandchild, as applicable under the laws of that state, or which would be so penalized for such conduct had the act or acts been committed in the State of Mississippi.
(b) A certified copy of the court order or judgment evidencing such a conviction shall be accepted by any public office with responsibilities pursuant to this section, and by any court in the State of Mississippi, as conclusive evidence of the conviction.
(2) (a) No person who has been convicted of felony parental child sexual abuse shall contact or attempt to contact the victim child nor the siblings of the victim child that reside in the same household as the victim child without the prior express written permission of the child's then legal custodian, who may be the other parent, a guardian, person in loco parentis or person with legal or physical custody of a child.
(b) No person who has
been convicted of felony parental child sexual abuse shall harass, threaten,
intimidate or by any other means menace the victim child * * *, any sibling of the victim child or any
legal custodian of the child, who may be the other parent, a guardian, person
in loco parentis or person with legal or physical custody of a child.
(c) Any person who believes that a person who has been convicted of felony parental child sexual abuse may violate the provisions of paragraph (a) or (b) of this subsection may register with the sheriff and any municipal law enforcement agency of the child's county and municipality of residence, setting forth the factual basis for that belief which shall include a certified copy of the court order or judgment evidencing the conviction of the child sexual abuse felon. The sheriff's office of each county and all municipal law enforcement agencies shall maintain a separate and distinct register for the purpose of recording the data required herein, and shall advise the reporting party of how emergency contact can be made with that office at any time with respect to a threatened violation of paragraph (a) or (b) of this subsection. Immediate response with police protection shall be provided to any emergency contact made pursuant to this section, which police protection shall be continued in such reasonable manner as to deter future violations and protect the child and any person with legal custody of the child.
(d) Any person who has been convicted of felony parental child sexual abuse who violates paragraph (a) of this subsection shall, upon conviction, be punished by imprisonment in the county jail for not more than one (1) year. Any person who has been convicted of felony parental child sexual abuse who violates paragraph (b) of this subsection shall, upon conviction, be punished by imprisonment in the State Penitentiary for not more than five (5) years.
(3) No person who has been convicted of felony parental child sexual abuse shall be entitled to have parental or other visitation rights as to that child who was the victim, or any sibling of that child who resides in the same residence with that child unless he or she files a petition in the chancery court of the county in which the child resides, reciting the conviction, and joining as parties defendant any other parent, guardian, person standing in loco parentis or having legal or physical custody of the child. A guardian ad litem shall be appointed to represent the child at petitioner's expense. The court shall appoint a qualified psychologist or psychiatrist to conduct an independent examination of the petitioner to determine whether contact with that person poses a physical or emotional risk to the child, and report to the court. Such examination shall be at petitioner's expense. The court shall require any such petitioner to deposit with the court sufficient funds to pay expenses chargeable to a petitioner hereunder, the amount of such deposit to be within the discretion of the chancellor. Any defendant and the child through his or her guardian ad litem shall be entitled to a full evidentiary hearing on the petition. In no event shall a child be required to testify in court or by deposition, or be subjected to any psychological examination, without the express consent of the child through his or her guardian ad litem. Such guardian ad litem shall consult with the child's legal guardian or custodians before consenting to such testimony or examination. At any hearing there is a rebuttable presumption that contact with the child poses a physical and emotional risk to the child. That presumption may be rebutted and visitation or contact allowed on such terms and conditions that the chancery court shall set only upon specific written findings by the court that:
(a) Contact between the child and the offending parent is appropriate and poses minimal risk to the child;
(b) If the child has received counseling, that the child's counselor believes such contact is in the child's best interest;
(c) The offending parent has successfully engaged in treatment for sex offenders or is engaged in such treatment and making progress; and
(d) The offending parent's treatment provider believes contact with the child is appropriate and poses minimal risk to the child. If the court, in its discretion, allows visitation or contact it may impose such conditions to the visitation or contact which it finds reasonable, including supervision of contact or visitation by a neutral and independent adult with a detailed plan for supervision of any such contact or visitation.
SECTION 3. Section 93-16-3, Mississippi Code of 1972, is amended as follows:
93-16-3. (1) Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child's parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.
(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
(b) That visitation rights of the grandparent with the child would be in the best interests of the child using guidelines provided in Section 93-5-24.
(3) For purposes of subsection (2) of this section, the term "viable relationship" means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child, the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year, or the child has been cared for by the grandparents or either of them over a significant period of time during the time the parent has been in jail or on military duty that necessitates the absence of the parent from the home.
(4) Any petition for visitation rights under subsection (2) of this section shall be filed in the county where an order of custody as to the child has previously been entered. If no custody order has been entered, then the grandparents' petition shall be filed in the county where the child resides or may be found. Upon a showing of financial hardship for the parents, the court shall on motion of the parent or parents direct the grandparents to pay reasonable attorney's fees to the parent or parents at any time, including before a hearing, without regard to the outcome of the petition.
SECTION 4. This act shall take effect and be in force from and after July 1, 2022.