MISSISSIPPI LEGISLATURE
2011 Regular Session
To: Judiciary A
By: Representative Holland
AN ACT TO REQUIRE A COURT HEARING TO DETERMINE WHETHER A PARENT WHO HAS CUSTODY OR JOINT CUSTODY WITH PRIMARY PHYSICAL CUSTODY MAY RELOCATE OUTSIDE OF THE STATE OR MOVE A SUBSTANTIAL DISTANCE FROM THE NONCUSTODIAL PARENT WITHIN THE STATE BEFORE THE CHILD IS REMOVED; TO REQUIRE THE CUSTODIAL PARENT TO PROVIDE THE NONCUSTODIAL PARENT WITH NOTICE; TO ESTABLISH THE PROCEDURES TO BE FOLLOWED IN PETITIONING THE COURT FOR A HEARING ON THE MATTER OF RELOCATION BY THE CUSTODIAL PARENT; TO PRESCRIBE THE FACTORS TO BE TAKEN INTO CONSIDERATION BY THE COURT WHEN MAKING ITS DETERMINATION; TO AMEND SECTIONS 93-5-23, 93-5-24 and 97-3-51, 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. (1) It is the purpose of this section to provide a means by which to facilitate a fair, efficient and swift process to resolve matters regarding custody and visitation when a parent who has custody, or has joint custody with primary physical custody, desires to relocate outside the state or move a substantial distance from the noncustodial parent within the state.
(2) If a parent who has custody, or has joint custody with primary physical custody, desires to relocate outside the state or move a substantial distance from the noncustodial parent within the state, the relocating custodial parent shall send notice to the noncustodial parent at that parent's last known address by registered or certified mail. Unless excused by the court for exigent circumstances, the notice shall be mailed not later than sixty (60) days before the move. The notice shall contain the following:
(a) A statement of intent to move;
(b) The location of proposed new residence;
(c) The reasons for proposed relocation; and
(d) A statement that the noncustodial parent may file a petition in opposition to the move within thirty (30) days of receipt of the notice.
(3) Unless the parents can agree on a new visitation schedule, the relocating custodial parent shall file a petition seeking to alter visitation. The court shall consider all relevant factors, including those factors enumerated within subsection (5) of this section. The court shall also consider the availability of alternative arrangements to foster and continue the child's relationship with and access to the noncustodial parent. The court shall assess the costs of transporting the child for visitation and determine whether a deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation.
(4) If the parents are actually spending substantially equal intervals of time with the child and the relocating custodial parent seeks to move with the child, the noncustodial parent may, within thirty (30) days of receipt of notice, file a petition in opposition to removal of the child. No presumption in favor of or against the request to relocate with the child shall arise. The court shall, for good cause shown, hold an expedited hearing to determine whether or not to permit relocation of the child based upon the best interests of the child. The court shall consider all relevant factors including the following where applicable:
(a) The extent to which visitation rights have been allowed and exercised;
(b) Whether the custodial parent, once out of the jurisdiction, is likely to comply with any new visitation arrangement;
(c) The love, affection and emotional ties existing between the parents and child;
(d) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
(e) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;
(f) The stability of the family unit of the parents;
(g) The mental and physical health of the parents;
(h) The home, school and community record of the child;
(i) (i) The reasonable preference of the child if twelve (12) years of age or older;
(ii) The court may hear the preference of a younger child upon request; however, the preferences of older children should normally be given greater weight than those of younger children;
(j) Evidence of physical or emotional abuse to the child, to the noncustodial parent or to any other person; and
(k) The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child.
(5) (a) If the parents are not actually spending substantially equal intervals of time with the child and the parent spending the greater amount of time with the child proposes to relocate with the child, the other parent may, within thirty (30) days of receipt of the notice, file a petition in opposition to removal of the child. The other parent may not attempt to relocate with the child unless expressly authorized to do so by the court pursuant to a change of custody or primary custodial responsibility. The parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:
(i) The relocation does not have a reasonable purpose;
(ii) The relocation would pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child of a change of custody; or
(iii) The parent's motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the noncustodial parent or the parent spending less time with the child.
(b) Specific and serious harm to the child includes, but is not limited to, the following:
(i) If a parent wishes to take a child with a serious medical problem to an area where no adequate treatment is readily available;
(ii) If a parent wishes to take a child with specific educational requirements to an area with no acceptable education facilities;
(iii) If a parent wishes to relocate and take up residence with a person with a history of child or domestic abuse or who is currently abusing alcohol or other drugs;
(iv) If the child relies on the parent not relocating who provides emotional support, nurturing and development such that removal would result in severe emotional detriment to the child;
(v) If the custodial parent is emotionally disturbed or dependent such that the custodial parent is not capable of adequately parenting the child in the absence of support systems currently in place in this state, and such support system is not available at the proposed relocation site; or
(vi) If the proposed relocation is to a foreign country whose public policy does not normally enforce the visitation rights of noncustodial parents, that does not have an adequately functioning legal system or that otherwise presents a substantial risk of specific and serious harm to the child.
(6) If the court finds one (1) or more of the grounds designated in subsection (5) of this section, the court shall determine whether or not to permit relocation of the child based on the best interest of the child. If the court finds it is not in the best interests of the child to relocate as defined in this section, but the parent with whom the child resides the majority of the time elects to relocate, the court shall make a custody determination and shall consider all relevant factors, including the factors enumerated in paragraphs (a) through (k) of subsection (4) of this section.
(7) The court shall consider the availability of alternative arrangements to foster and continue the child's relationship with and access to the noncustodial parent. The court shall assess the costs of transporting the child for visitation, and determine whether a deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation.
(8) Nothing in this section shall prohibit either parent from petitioning the court at any time to address issues, such as, but not limited to, visitation, other than a change of custody related to the move. If the noncustodial parent fails to file a petition in opposition to a proposed relocation within thirty (30) days of receipt of the notice, the custodial parent proposing to relocate with the child shall be permitted to do so.
(9) The gender of the custodial parent who seeks to relocate for the reason of career, educational, professional, or job opportunity, or otherwise, shall not be a factor in favor or against the relocation of that parent with the child.
(10) Either parent in a parental relocation matter may recover reasonable attorney's fees and other litigation expenses from the other in the discretion of the court.
(11) Any person who violates any provision of this section and removes a child from the state, shall be punished as authorized under Section 97-3-51.
SECTION 2. 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. For the purposes of orders touching the maintenance and alimony of the wife or husband, "property" and "an asset of a spouse" shall not include any interest a party may have as an heir at law of a living person or any interest under a third-party will, nor shall any such interest be considered as an economic circumstance or other factor. 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.
At the discretion of the court, any person found in contempt for failure to pay child support and imprisoned therefor may be referred for placement in a state, county or municipal restitution, house arrest or restorative justice center or program, provided such person meets the qualifications prescribed in Section 99-37-19.
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 pursuant to Section 93-11-65.
Custody and visitation upon military temporary duty, deployment or mobilization shall be governed by Section 93-5-34.
Relocation of a custodial parent who desires to relocate outside the state or move a substantial distance from the noncustodial parent within the state shall be governed by Section 1 of this act.
SECTION 3. 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) Without regard to the type of custody awarded to a parent under the provisions of this section, when a parent who has custody, or has joint custody with primary physical custody, desires to relocate outside the state or move a substantial distance from the noncustodial parent within the state, the requirements of Section 1 of this act shall apply to any modification of custody.
SECTION 4. Section 97-3-51, Mississippi Code of 1972, is amended as follows:
97-3-51. (1) For the purposes of this section, the following terms shall have the meaning herein ascribed unless the context otherwise clearly requires:
(a) "Child" means a person under the age of fourteen (14) years at the time a violation of this section is alleged to have occurred.
(b) "Court order" means an order, decree or judgment of any court of this state which is competent to decide child custody matters.
(2) (a) It shall be unlawful for any noncustodial parent or relative with intent to violate a court order awarding custody of a child to another to remove the child from this state or to hold the child out of state after the entry of a court order.
(b) It shall be unlawful for a custodial parent to remove a child from this state or to hold a child out of the state in violation of Section 1 of this act without following the required procedures of that section.
(3) Any person convicted of a violation of subsection (2) of this section shall be guilty of a felony and may be punished by a fine of not more than Two Thousand Dollars ($2,000.00), or by imprisonment in the State Penitentiary for a term not to exceed three (3) years, or by both such fine and imprisonment.
(4) The provisions of this section shall not be construed to repeal, modify or amend any other criminal statute of this state.
SECTION 5. This act shall take effect and be in force from and after July 1, 2011.