MISSISSIPPI LEGISLATURE
2015 Regular Session
To: Judiciary B
By: Representative Moak
AN ACT TO CREATE THE UNIFORM DEPLOYED PARENTS CUSTODY AND VISITATION ACT; TO DEFINE CERTAIN TERMS; TO PROVIDE REMEDIES FOR NONCOMPLIANCE; TO PROVIDE JURISDICTION; TO REQUIRE NOTICE OF DEPLOYMENT; TO CREATE A DUTY TO NOTIFY OF CHANGE OF ADDRESS; TO PROVIDE GENERAL CONSIDERATION IN A CUSTODY PROCEEDING OF A PARENT'S MILITARY SERVICE; TO PROVIDE FOR AGREEMENTS ADDRESSING CUSTODIAL RESPONSIBILITY DURING DEPLOYMENT; TO PROVIDE THE FORM OF AGREEMENT; TO PROVIDE THE NATURE OF AUTHORITY CREATED BY AGREEMENT; TO PROVIDE FOR MODIFICATION OF AGREEMENT; TO AUTHORIZE POWER OF ATTORNEY; TO REQUIRE FILING AGREEMENT OR POWER OF ATTORNEY WITH THE COURT; TO PROVIDE JUDICIAL PROCEDURE FOR GRANTING CUSTODIAL RESPONSIBILITY DURING DEPLOYMENT; TO PROVIDE A PROCEEDING FOR TEMPORARY CUSTODY ORDERS; TO PROVIDE EXPEDITED HEARINGS; TO ALLOW TESTIMONY BY ELECTRONIC MEANS; TO ADDRESS THE EFFECT OF PRIOR JUDICIAL ORDERS OR AGREEMENTS; TO ALLOW THE COURT TO GRANT CARETAKING OR DECISION-MAKING AUTHORITY TO A NONPARENT; TO GRANT LIMITED CONTACT; TO ADDRESS THE NATURE OF AUTHORITY CREATED BY A TEMPORARY CUSTODY ORDER; TO PROVIDE THE CONTENT OF A TEMPORARY CUSTODY ORDER; TO AUTHORIZE THE COURT TO ENTER ORDERS FOR CHILD SUPPORT AND TO MODIFY OR TERMINATE SUCH ORDERS; TO ADDRESS MATTERS UPON RETURN FROM DEPLOYMENT; TO PROVIDE A PROCEDURE FOR TERMINATING TEMPORARY GRANTS OF CUSTODIAL RESPONSIBILITY ESTABLISHED BY AGREEMENT; TO ADDRESS VISITATION; TO PROVIDE FOR THE TERMINATION OF ORDERS OF TEMPORARY ORDERS FOR CUSTODIAL RESPONSIBILITY; TO PROVIDE FOR UNIFORMITY OF APPLICATION AND CONSTRUCTION; TO ADDRESS ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT; TO BRING FORWARD SECTIONS 93-5-23, 93-5-24, 93-11-65 AND 93-5-34, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The Uniform Deployed Parents Custody and Visitation Act is created as follows:
ARTICLE 1
GENERAL PROVISIONS
Section 101. SHORT TITLE. This act may be cited as the Uniform Deployed Parents Custody and Visitation Act.
Section 102. DEFINITIONS. In this act:
(1) "Adult" means an individual who has attained eighteen (18) years of age or an emancipated minor.
(2) "Caretaking authority" means the right to live with and care for a child on a day-to-day basis. The term includes physical custody, parenting time, right to access, and visitation.
(3) "Child" means:
(A) An unemancipated individual who has not attained eighteen (18) years of age; or
(B) An adult son or daughter by birth or adoption, or under law of this state other than this act, who is the subject of a court order concerning custodial responsibility.
(4) "Court" means a tribunal, including an administrative agency, authorized under law of this state other than this act to make, enforce, or modify a decision regarding custodial responsibility.
(5) "Custodial responsibility" includes all powers and duties relating to caretaking authority and decision-making authority for a child. The term includes physical custody, legal custody, parenting time, right to access, visitation, and authority to grant limited contact with a child.
(6) "Decision-making authority" means the power to make important decisions regarding a child, including decisions regarding the child's education, religious training, health care, extracurricular activities, and travel. The term does not include the power to make decisions that necessarily accompany a grant of caretaking authority.
(7) "Deploying parent" means a service member, who is deployed or has been notified of impending deployment and is:
(A) A parent of a child under law of this state other than this act; or
(B) An individual who has custodial responsibility for a child under law of this state other than this act.
(8) "Deployment" means the movement or mobilization of a service member for more than ninety (90) days but less than eighteen (18) months pursuant to uniformed service orders that:
(A) Are designated as unaccompanied;
(B) Do not authorize dependent travel; or
(C) Otherwise do not permit the movement of family members to the location to which the service member is deployed.
(9) "Family member" means a sibling, aunt, uncle, cousin, step-parent, or grandparent of a child or an individual recognized to be in a familial relationship with a child under law of this state other than this act.
(10) "Limited contact" means the authority of a nonparent to visit a child for a limited time. The term includes authority to take the child to a place other than the residence of the child.
(11) "Nonparent" means an individual other than a deploying parent or other parent.
(12) "Other parent" means an individual who, in common with a deploying parent, is:
(A) A parent of a child under law of this state other than this act; or
(B) An individual who has custodial responsibility for a child under law of this state other than this act.
(13) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(14) "Return from deployment" means the conclusion of a service member's deployment as specified in uniformed service orders.
(15) "Service member" means a member of a uniformed service.
(16) "Sign" means, with present intent to authenticate or adopt a record:
(A) To execute or adopt a tangible symbol; or
(B) To attach to or logically associate with the record an electronic symbol, sound, or process.
(17) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(18) "Uniformed service" means:
(A) Active and reserve components of the Army, Navy, Air Force, Marine Corps, or Coast Guard of the United States;
(B) The United States Merchant Marine;
(C) The commissioned corps of the United States Public Health Service;
(D) The commissioned corps of the National Oceanic and Atmospheric Administration of the United States; or
(E) The National Guard of a state.
Section 103. REMEDIES FOR NONCOMPLIANCE. In addition to other remedies under law of this state other than this act, if a court finds that a party to a proceeding under this act has acted in bad faith or intentionally failed to comply with this act or a court order issued under this act, the court may assess reasonable attorney's fees and costs against the party and order other appropriate relief.
(a) A court may issue an order regarding custodial responsibility under this act only if the court has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.
(b) If a court has issued a temporary order regarding custodial responsibility pursuant to Article 3, the residence of the deploying parent is not changed by reason of the deployment for the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act during the deployment.
(c) If a court has issued a permanent order regarding custodial responsibility before notice of deployment and the parents modify that order temporarily by agreement pursuant to Article 2, the residence of the deploying parent is not changed by reason of the deployment for the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act.
(d) If a court in another state has issued a temporary order regarding custodial responsibility as a result of impending or current deployment, the residence of the deploying parent is not changed by reason of the deployment for the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act.
(e) This section does not prevent a court from exercising temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.
(a) Except as otherwise provided in subsection (d) and subject to subsection (c), a deploying parent shall notify in a record the other parent of a pending deployment not later than seven (7) days after receiving notice of deployment unless reasonably prevented from doing so by the circumstances of service. If the circumstances of service prevent giving notification within the seven (7) days, the deploying parent shall give the notification as soon as reasonably possible.
(b) Except as otherwise provided in subsection (d) and subject to subsection (c), each parent shall provide in a record the other parent with a plan for fulfilling that parent's share of custodial responsibility during deployment. Each parent shall provide the plan as soon as reasonably possible after notification of deployment is given under subsection (a).
(c) If a court order currently in effect prohibits disclosure of the address or contact information of the other parent, notification of deployment under subsection (a), or notification of a plan for custodial responsibility during deployment under subsection (b), may be made only to the issuing court. If the address of the other parent is available to the issuing court, the court shall forward the notification to the other parent. The court shall keep confidential the address or contact information of the other parent.
(d) Notification in a record under subsection (a) or (b) is not required if the parents are living in the same residence and both parents have actual notice of the deployment or plan.
(e) In a proceeding regarding custodial responsibility, a court may consider the reasonableness of a parent's efforts to comply with this section.
(a) Except as otherwise provided in subsection (b), an individual to whom custodial responsibility has been granted during deployment pursuant to Article 2 or 3 shall notify the deploying parent and any other individual with custodial responsibility of a child of any change of the individual's mailing address or residence until the grant is terminated. The individual shall provide the notice to any court that has issued a custody or child support order concerning the child which is in effect.
(b) If a court order currently in effect prohibits disclosure of the address or contact information of an individual to whom custodial responsibility has been granted, a notification under subsection (a) may be made only to the court that issued the order. The court shall keep confidential the mailing address or residence of the individual to whom custodial responsibility has been granted.
Section 107. GENERAL CONSIDERATION IN CUSTODY PROCEEDING OF PARENT'S MILITARY SERVICE. In a proceeding for custodial responsibility of a child of a service member, a court may not consider a parent's past deployment or possible future deployment in itself in determining the best interest of the child but may consider any significant impact on the best interest of the child of the parent's past or possible future deployment.
(a) The parents of a child may enter into a temporary agreement under this article granting custodial responsibility during deployment.
(b) An agreement under subsection (a) must be:
(1) In writing; and
(2) Signed by both parents and any nonparent to whom custodial responsibility is granted.
(c) Subject to subsection (d), an agreement under subsection (a), if feasible, must:
(1) Identify the destination, duration, and conditions of the deployment that is the basis for the agreement;
(2) Specify the allocation of caretaking authority among the deploying parent, the other parent, and any nonparent;
(3) Specify any decision-making authority that accompanies a grant of caretaking authority;
(4) Specify any grant of limited contact to a nonparent;
(5) If under the agreement custodial responsibility is shared by the other parent and a nonparent, or by other nonparents, provide a process to resolve any dispute that may arise;
(6) Specify the frequency, duration, and means, including electronic means, by which the deploying parent will have contact with the child, any role to be played by the other parent in facilitating the contact, and the allocation of any costs of contact;
(7) Specify the contact between the deploying parent and child during the time the deploying parent is on leave or is otherwise available;
(8) Acknowledge that any party's child-support obligation cannot be modified by the agreement, and that changing the terms of the obligation during deployment requires modification in the appropriate court;
(9) Provide that the agreement will terminate according to the procedures under Article 4 after the deploying parent returns from deployment; and
(10) If the agreement must be filed pursuant to Section 205, specify which parent is required to file the agreement.
(d) The omission of any of the items specified in subsection (c) does not invalidate an agreement under this section.
(a) An agreement under this article is temporary and terminates pursuant to Article 4 after the deploying parent returns from deployment, unless the agreement has been terminated before that time by court order or modification under Section 203. The agreement does not create an independent, continuing right to caretaking authority, decision-making authority, or limited contact in an individual to whom custodial responsibility is given.
(b) A nonparent who has caretaking authority, decision-making authority, or limited contact by an agreement under this article has standing to enforce the agreement until it has been terminated by court order, by modification under Section 203, or under Article 4.
(a) By mutual consent, the parents of a child may modify an agreement regarding custodial responsibility made pursuant to this article.
(b) If an agreement is modified under subsection (a) before deployment of a deploying parent, the modification must be in writing and signed by both parents and any nonparent who will exercise custodial responsibility under the modified agreement.
(c) If an agreement is modified under subsection (a) during deployment of a deploying parent, the modification must be agreed to in a record by both parents and any nonparent who will exercise custodial responsibility under the modified agreement.
Section 204. POWER OF ATTORNEY. A deploying parent, by power of attorney, may delegate all or part of custodial responsibility to an adult nonparent for the period of deployment if no other parent possesses custodial responsibility under law of this state other than this act, or if a court order currently in effect prohibits contact between the child and the other parent. The deploying parent may revoke the power of attorney by signing a revocation of the power.
Section 205. FILING AGREEMENT OR POWER OF ATTORNEY WITH COURT. An agreement or power of attorney under this article must be filed within a reasonable time with any court that has entered an order on custodial responsibility or child support that is in effect concerning the child who is the subject of the agreement or power. The case number and heading of the pending case concerning custodial responsibility or child support must be provided to the court with the agreement or power.
Section 301. DEFINITION. In this article, "close and substantial relationship" means a relationship in which a significant bond exists between a child and a nonparent.
(a) After a deploying parent receives notice of deployment and until the deployment terminates, a court may issue a temporary order granting custodial responsibility unless prohibited by the Servicemembers Civil Relief Act, 50 USCS Appendix Sections 521 and 522. A court may not issue a permanent order granting custodial responsibility without the consent of the deploying parent.
(b) At any time after a deploying parent receives notice of deployment, either parent may file a motion regarding custodial responsibility of a child during deployment. The motion must be filed in a pending proceeding for custodial responsibility in a court with jurisdiction under Section 104 or, if there is no pending proceeding in a court with jurisdiction under Section 104, in a new action for granting custodial responsibility during deployment.
Section 303. EXPEDITED HEARING. If a motion to grant custodial responsibility is filed under Section 302(b) before a deploying parent deploys, the court shall conduct an expedited hearing.
Section 304. TESTIMONY BY ELECTRONIC MEANS. In a proceeding under this article, a party or witness who is not reasonably available to appear personally may appear, provide testimony, and present evidence by electronic means unless the court finds good cause to require a personal appearance.
Section 305. EFFECT OF PRIOR JUDICIAL ORDER OR AGREEMENT. In a proceeding for a grant of custodial responsibility pursuant to this article, the following rules apply:
(1) A prior judicial order designating custodial responsibility in the event of deployment is binding on the court unless the circumstances meet the requirements of law of this state other than this act for modifying a judicial order regarding custodial responsibility.
(2) The court shall enforce a prior written agreement between the parents for designating custodial responsibility in the event of deployment, including an agreement executed under Article 2, unless the court finds that the agreement is contrary to the best interest of the child.
(a) On motion of a deploying parent and in accordance with law of this state other than this act, if it is in the best interest of the child, a court may grant caretaking authority to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship.
(b) Unless a grant of caretaking authority to a nonparent under subsection (a) is agreed to by the other parent, the grant is limited to an amount of time not greater than:
(1) The amount of time granted to the deploying parent under a permanent custody order, but the court may add unusual travel time necessary to transport the child; or
(2) In the absence of a permanent custody order that is currently in effect, the amount of time that the deploying parent habitually cared for the child before being notified of deployment, but the court may add unusual travel time necessary to transport the child.
(c) A court may grant part of a deploying parent's decision-making authority, if the deploying parent is unable to exercise that authority, to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship. If a court grants the authority to a nonparent, the court shall specify the decision-making powers granted, including decisions regarding the child's education, religious training, health care, extracurricular activities, and travel.
Section 307. GRANT OF LIMITED CONTACT. On motion of a deploying parent, and in accordance with law of this state other than this act, unless the court finds that the contact would be contrary to the best interest of the child, a court shall grant limited contact to a nonparent who is a family member of the child or an individual with whom the child has a close and substantial relationship.
(a) A grant of authority under this article is temporary and terminates under Article 4 after the return from deployment of the deploying parent, unless the grant has been terminated before that time by court order. The grant does not create an independent, continuing right to caretaking authority, decision-making authority, or limited contact in an individual to whom it is granted.
(b) A nonparent granted caretaking authority, decision-making authority, or limited contact under this article has standing to enforce the grant until it is terminated by court order or under Article 4.
(a) An order granting custodial responsibility under this article must:
(1) Designate the order as temporary; and
(2) Identify to the extent feasible the destination, duration, and conditions of the deployment.
(b) If applicable, an order for custodial responsibility under this article must:
(1) Specify the allocation of caretaking authority, decision-making authority, or limited contact among the deploying parent, the other parent, and any nonparent;
(2) If the order divides caretaking or decision-making authority between individuals, or grants caretaking authority to one individual and limited contact to another, provide a process to resolve any dispute that may arise;
(3) Provide for liberal communication between the deploying parent and the child during deployment, including through electronic means, unless contrary to the best interest of the child, and allocate any costs of communications;
(4) Provide for liberal contact between the deploying parent and the child during the time the deploying parent is on leave or otherwise available, unless contrary to the best interest of the child;
(5) Provide for reasonable contact between the deploying parent and the child after return from deployment until the temporary order is terminated, even if the time of contact exceeds the time the deploying parent spent with the child before entry of the temporary order; and
(6) Provide that the order will terminate pursuant to Article 4 after the deploying parent returns from deployment.
Section 310. ORDER FOR CHILD SUPPORT. If a court has issued an order granting caretaking authority under this article, or an agreement granting caretaking authority has been executed under Article 2, the court may enter a temporary order for child support consistent with law of this state other than this act if the court has jurisdiction under the Uniform Interstate Family Support Act.
(a) Except for an order under Section 305, except as otherwise provided in subsection (b), and consistent with the Servicemembers Civil Relief Act, 50 USCS Appendix Sections 521 and 522, on motion of a deploying or other parent or any nonparent to whom caretaking authority, decision-making authority, or limited contact has been granted, the court may modify or terminate the grant if the modification or termination is consistent with this article and it is in the best interest of the child. A modification is temporary and terminates pursuant to Article 4 after the deploying parent returns from deployment, unless the grant has been terminated before that time by court order.
(b) On motion of a deploying parent, the court shall terminate a grant of limited contact.
(a) At any time after return from deployment, a temporary agreement granting custodial responsibility under Article 2 may be terminated by an agreement to terminate signed by the deploying parent and the other parent.
(b) A temporary agreement under Article 2 granting custodial responsibility terminates:
(1) If an agreement to terminate under subsection (a) specifies a date for termination, on that date; or
(2) If the agreement to terminate does not specify a date, on the date the agreement to terminate is signed by the deploying parent and the other parent.
(c) In the absence of an agreement under subsection (a) to terminate, a temporary agreement granting custodial responsibility terminates under Article 2 sixty (60) days after the deploying parent gives notice to the other parent that the deploying parent returned from deployment.
(d) If a temporary agreement granting custodial responsibility was filed with a court pursuant to Section 205, an agreement to terminate the temporary agreement also must be filed with that court within a reasonable time after the signing of the agreement. The case number and heading of the case concerning custodial responsibility or child support must be provided to the court with the agreement to terminate.
Section 402. CONSENT PROCEDURE FOR TERMINATING TEMPORARY GRANT OF CUSTODIAL RESPONSIBILITY ESTABLISHED BY COURT ORDER. At any time after a deploying parent returns from deployment, the deploying parent and the other parent may file with the court an agreement to terminate a temporary order for custodial responsibility issued under Article 3. After an agreement has been filed, the court shall issue an order terminating the temporary order effective on the date specified in the agreement. If a date is not specified, the order is effective immediately.
Section 403. VISITATION BEFORE TERMINATION OF TEMPORARY GRANT OF CUSTODIAL RESPONSIBILITY. After a deploying parent returns from deployment until a temporary agreement or order for custodial responsibility established under Article 2 or 3 is terminated, the court shall issue a temporary order granting the deploying parent reasonable contact with the child unless it is contrary to the best interest of the child, even if the time of contact exceeds the time the deploying parent spent with the child before deployment.
(a) If an agreement between the parties to terminate a temporary order for custodial responsibility under Article 3 has not been filed, the order terminates sixty (60) days after the deploying parent gives notice to the other parent and any nonparent granted custodial responsibility that the deploying parent has returned from deployment.
(b) A proceeding seeking to prevent termination of a temporary order for custodial responsibility is governed by law of this state other than this act.
Section 501. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Section 502. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. This act modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 USCS Section 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 USCS Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 USCS Section 7003(b).
Section 503. SAVINGS CLAUSE. This act does not affect the validity of a temporary court order concerning custodial responsibility during deployment which was entered before 403
the effective date of this act.
SECTION 2. Section 93-5-23, Mississippi Code of 1972, is brought forward 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.
SECTION 3. Section 93-5-24, Mississippi Code of 1972, is brought forward 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.
SECTION 4. Section 93-11-65, Mississippi Code of 1972, is brought forward 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, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.
(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. In determining whether any portion of a guardian ad litem's fee shall be assessed against any party or parties as a cost of court for reimbursement to the county, the court shall consider each party's individual ability to pay. 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) (a) The duty of support of a child terminates upon the emancipation of the child. Unless otherwise provided for in the underlying child support judgment, emancipation shall occur when the child:
(i) Attains the age of twenty-one (21) years, or
(ii) Marries, or
(iii) Joins the military and serves on a full-time basis, or
(iv) Is convicted of a felony and is sentenced to incarceration of two (2) or more years for committing such felony; or
(b) Unless otherwise provided for in the underlying child support judgment, the court may determine that emancipation has occurred and no other support obligation exists when the child:
(i) Discontinues full-time enrollment in school having attained the age of eighteen (18) years, unless the child is disabled, or
(ii) Voluntarily moves from the home of the custodial parent or guardian, establishes independent living arrangements, obtains full-time employment and discontinues educational endeavors prior to attaining the age of twenty-one (21) years, or
(iii) Cohabits with another person without the approval of the parent obligated to pay support; and
(c) The duty of support of a child who is incarcerated but not emancipated shall be suspended for the period of the child's incarceration.
(9) A determination of emancipation does not terminate any obligation of the noncustodial parent to satisfy arrearage existing as of the date of emancipation; the total amount of periodic support due prior to the emancipation plus any periodic amounts ordered paid toward the arrearage shall continue to be owed until satisfaction of the arrearage in full, in addition to the right of the person for whom the obligation is owed to execute for collection as may be provided by law.
(10) 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.
(11) Custody and visitation upon military temporary duty, deployment or mobilization shall be governed by Section 93-5-34.
SECTION 5. Section 93-5-34, Mississippi Code of 1972, is brought forward as follows:
93-5-34. (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 receives temporary duty, deployment or mobilization orders from the military. It is also the purpose of this section to facilitate continued communication between military parents and their minor children when the parent is on temporary duty or under deployment or mobilization orders.
(2) As used in this section:
(a) The term "deployment" means the temporary transfer of a service member serving in an active-duty status to another location in support of combat or some other military operation.
(b) The term "mobilization" means the call-up of a National Guard or Reserve service member to extended active duty status. For purposes of this definition, "mobilization" does not include National Guard or Reserve annual training.
(c) The term "temporary duty" means the transfer of a service member from one military base to a different location, usually another base, for a limited period of time to accomplish training or to assist in the performance of a noncombat mission.
(d) The term "family member" means a person related by blood or marriage and may include, for purposes of this statute, a step-parent, grandparent, aunt, uncle, adult sibling or other person related by blood or marriage.
(3) When a parent who has custody, or has joint custody with primary physical custody, receives temporary duty, deployment or mobilization orders from the military that involve moving a substantial distance from the parent's residence having a material effect on the parent's ability to exercise custody responsibilities:
(a) Any temporary custody order for the child during the parent's absence shall end no later than ten (10) days after the parent returns, but shall not impair the discretion of the court to conduct a hearing for emergency custody upon return of the parent and within ten (10) days of the filing of a verified motion for emergency custody alleging an immediate danger of irreparable harm to the child; and
(b) The temporary duty, mobilization or deployment of the service member and the temporary disruption to the child's schedule shall not be factors in a determination of change of circumstances if a motion is filed to transfer custody from the service member.
(c) Any order entered under this section shall require that:
(i) The nondeployed parent shall make the child or children reasonably available to the deployed parent when the latter parent has leave;
(ii) The nondeployed parent shall facilitate opportunities for telephonic, "webcam" and electronic mail contact between the deployed parent and the child or children during deployment; and
(iii) The deployed parent shall provide timely information regarding the parent's leave schedule to the nondeployed parent.
(4) If the parent with visitation rights receives military temporary duty, deployment or mobilization orders that involve moving a substantial distance from the parent's residence or otherwise have a material effect on the parent's ability to exercise rights, the court otherwise may delegate the parent's visitation rights, or a portion thereof, to a family member with a close and substantial relationship to the service member's minor child for the duration of the parent's absence, if delegating visitation rights is in the child's best interest.
(5) Upon motion of a parent who has received military temporary duty, deployment or mobilization orders, the court shall, for a good cause shown, hold an expedited hearing in custody and visitation matters instituted under this section when the military duties of the parent have a material effect on the parent's ability, or anticipated ability, to appear in person at a regularly scheduled hearing.
(6) Upon motion of a parent who has received military temporary duty, deployment or mobilization orders, the court shall, upon reasonable advance notice and for good cause shown, allow the parent to present testimony and evidence by affidavit or electronic means in custody and visitation matters instituted under this section when the military duties of the parent have a material effect on the parent's ability to appear in person at a regularly scheduled teleconference, or the Internet.
(7) Nothing in this section shall alter the duty of the court to consider the best interest of the child in deciding custody or visitation matters.
(8) Any hearing pursuant to this section shall take precedence over all other causes not involving the public interest, to the end that these cases may be expedited.
SECTION 6. This act shall take effect and be in force from and after July 1, 2015.