MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Judiciary A

By: Representatives Fredericks, Clarke, Coleman (65th), Dickson, Jennings, Peranich, Stevens, Thomas, Whittington

AN ACT TO AMEND SECTIONS 93-5-23 AND 93-11-65, MISSISSIPPI CODE OF 1972, TO MAKE FAMILY VIOLENCE A FACTOR USED IN THE DETERMINATION OF CHILD CUSTODY AND CHILD VISITATION; TO PROHIBIT MEDIATION IN ANY JUDICIAL PROCEEDING WHERE A PARTY HAS BEEN THE VICTIM OF FAMILY VIOLENCE; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 93-5-23, Mississippi Code of 1972, is amended as follows:

93-5-23. (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, emotional or physical abuse or of neglect 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 or neglect 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) * * *.

(4) If after investigation by the Department of Human Services or final disposition by the youth court the allegations of child abuse or neglect 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) (a) In any separation, divorce, child custody, child visitation, child support or alimony proceeding, no spouse or parent shall be ordered by the chancery court to participate in mediation if a spouse or parent alleges that he or she, or any of the children of one or both of the parties, is the victim of family violence perpetrated by the other party or if a protective order entered against the other party pursuant to the Protection from Domestic Abuse Law, Section 93-21-1 et seq., Mississippi Code of 1972, is in effect.

(b) For purposes of subsections (7), (8), (9), (10), (11), (12) and (13) of this section, "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(ren) of either or both of the parents, or the perpetrator's current spouse or cohabiting intimate partner. "Family violence" does not include reasonable acts of self-defense used by one (1) spouse or parent to protect himself or herself or a child in the family from violence of the other person.

(8) In addition to other factors that the court must consider in a proceeding in which the custody or visitation by a parent is at issue, the court shall consider whether either parent has perpetrated family violence, as defined in Section 93-5-23(7)(b), against the other parent, the child(ren) of either or both of the parents, or the perpetrator's current spouse or cohabiting intimate partner. If the court finds that both parents have a history of perpetrating family violence, the court shall consider which parent is less likely to continue to perpetrate any acts of family violence in determining custody.

(9) As a part of the determination of the best interest of the child, the court shall consider the physical safety and emotional well-being of the child and of the parent who is the victim of family violence. A noncustodial parent who has perpetrated family violence shall not be granted unsupervised child visitation unless there is a showing by clear and convincing evidence that unsupervised visitation would not endanger the child(ren)'s physical, mental, or emotional health. The court shall order that a parent who has perpetrated family violence have supervised visitation with or exchange visitation of his or her child(ren) under conditions which prevent any physical abuse, sexual abuse, emotional abuse, threats, intimidation or abduction of the child(ren) and the other parent. The parent who perpetrated family violence shall pay any and all costs incurred in the supervision of visitation.

(10) In determining custody or visitation, the court shall not consider the absence or relocation of a parent as a factor that weighs against that parent if that parent is absent or relocated to protect himself or herself or his or her child(ren) because of an act or acts of family violence perpetrated by the other parent.

(11) The fact that the parent who has been the victim of family violence suffers from the psychological and emotional effects of the family violence shall not be grounds for denying that parent custody or visitation. The court may refer the victim parent to receive individual or group counseling services specifically designed for victims of domestic abuse. However, the court shall not order the victim to attend counseling or other treatment together with the perpetrator of family violence.

(12) Any mental health professional appointed by the court to provide a custody evaluation in a case where family violence has been alleged shall have current and demonstrable training and experience working with perpetrators and victims of family violence.

(13) All court costs, attorneys' fees, evaluation fees, and expert witness fees, in a divorce, child custody, or child visitation action involving allegations of family violence shall be paid by the party whom the court finds is the perpetrator of the family violence.

SECTION 2. 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) Family violence as defined in Section 93-5-23 shall be a factor used to determine child custody and visitation rights. Mediation shall be prohibited in any judicial proceeding where a party has been the victim of family violence as provided in Section 93-5-23.

SECTION 3. This act shall take effect and be in force from and after July 1, 2000.