Joint custody might become standard practice in Mississippi divorce cases come July 1 if State Representative Shane Aquirre (R - La Vino) has his way.
Mr. Aquirre introduced SB# 1662. The bill would greatly change how custody is awarded in Mississippi. The bill states:
(2) * * * (a) (i) There shall be a rebuttable presumption that joint custody and equally shared parenting time is in the best interest of the child. If the court grants joint custody and equally shared parenting time, the court shall construct a parenting time schedule which maximizes the time each parent has with the child and ensures the best interest of the child is met. (ii) The presumption created in subparagraph (i) of this paragraph shall be rebuttable by a preponderance of the evidence. A court that does not award joint custody with equally shared parenting time shall document the reasons for deviating from the presumption. (b) To calculate child support for joint custody with equally shared parenting time, unless the court determines a deviation from this paragraph is in the best interest of the child, the court shall: (i) Calculate a child-support award under the guidelines of Section 43-19-101 for each parent as if each parent was the obligor; (ii) Calculate the difference in the two (2) awards by subtracting the lesser award from the larger award; and (iii) Order the difference in the two (2) awards to be paid by the parent who has the higher adjusted gross income to the parent with the lower adjusted gross income. (c) Upon petition of both parents, the court may grant legal and/or physical custody to one (1) parent without documenting a reason for deviation.
Only five states have a similar law. History and text of bill. The bill went to conference and was returned to both chambers where it awaits approval.
A local attorney penned this little informal op-ed for this website:
I see both sides of this argument. I see where it may be fairer to men, but I can see how it can be detrimental to the best interest of a child.
As a child of divorced parents, the court system strongly favored women. My dad ended up with custody in 2008 of me and I saw a shift in father's rights during that time. I say that because I can speak on this not only as a practitioner but on a personal level.
I see where it's appealing to men. I also see potential issues with the violent parent aspect of the law. I can see how woman might start screaming abuse and abuse to prevent the presumption of 50/50 custody. BUT we already have the violent parent presumption in our statutes. I have seen cases on both sides where women make false accusations to get a “leg up” in chancery court but I have also seen true physical abuse on mother and dad trying to get full custody. It cuts both ways.
In the state of Mississippi, the case of Albright v. Albright is how an initial custody determination if determined. Albright is a set of 12 factors that the Court reviews to determine who should have custody of a child. But, those factors are viewed in the light of the best interest of the minor child(ten). The Albright factors are not perfect. And often times the continuity of care factor holds the vast majority of the weight, which typically favors a mom over a dad.
I think it's a start towards recognizing that moms and dads have equal roles in a child's life but I wish that it wouldn't be a true presumption because some dads only want joint custody to avoid child support. I also do not like how the bill is attempting to amend the child support guidelines.
I hate math and the way we have it now works, it's easy and simple. Like I said Albright isn't perfect but it's so far the best we have to look at the best interest of the child and not the best interest of the parents.
So I think instead of a bill, I wish the appellate courts would add more factors to Albright like: history of family involvement (because while a dad may not be the primary caregiver under Albright a dad may be heavily involved in his child’s lives). I wish our courts would also change standard visitation to Thursday to Mondays for noncustodial parents.
I just see too many issues with this and most lawyers in the legal system wish that we would have been consulted prior to this bill being introduced.
Attorney Danielle Banks warned of more litigation if the bill becomes law:
29 comments:
this is not a good bill. The "Albright" factors probably work best in most cases, and this bill would not serve the best interest of the child b/c if the court is going to decide custody, then the court needs to truly accept the burden of the best interest of the child. Children need stability first and foremost, and if both parents can show they can work together, but apart from each other, then joint should be considered
I AM 110% for this bill. Kentucky, Arkansas, Missouri, West Virginia and Florida already have it on the books. Gentlemen do not fall for the scare tactics of domestic violence like that is the norm. That is not the norm for divorce! This bill is eviscerating the "irreconcilable differences" or "I'm bored" as a reason to break up the family. This is my first time saying thank you to Kentucky but THANK YOU KENTUCKY for being the first state in the UNION to pass this bill in 2018 now we see the ripple effect. Only folks that will be upset are women who will be forced unleash some control and the CHANCERY COURT Judes and Attorneys who stand to lose a lot of money.
It will be terrible for military parents. Especially if they live in different states. Imo. Of course some parents deserve ZERO custody.
One size doesn’t fit all. This is an unwise course of action that exceeds the tasks legislators should actually be doing.
I can’t speak to the solution of adding more factors to Albright, as that doesn’t seem to be a bad idea.
Has favoring the mom created a situation where there are more kids being raised without a Dad?
Do Dads become resentful that they don’t get the opportunity to be able to come home to their child and get a hug from a smiling toddler?
Does starting at 50/50 increase Dad’s involvement from the start? Could this help those “fatherless” kids actually have some role models? Would it encourage more “men” to grow up?
I think it was Wordsworth that had the quote, “The Child is father of the Man.”
This country is made to have states test and find the best way of doing things. Returning a father’s role/involvement from the beginning may make for a better society.
I’d have to think Shad preached this in his awfully worded report years ago on “fatherless” homes.
In our American culture, we place so much emphasize on being a Father. We do not a demand that he is the Father of The Year, but that he simply fulfills the minimum expectation. That expectation alone is an exceedingly high bar that a Father need not complain about. Yet, in the last 40 plus years in our State, Chancellors have made Father's nothing more than glorified uncles. While at the same time demanding financial obligation for that which you only see on the first and third weekend (four days a month). Most cases you can't even get the child's grades from school or even have a say about the course of the child's medical treatment. I praise this bill!! To God be the Glory!!!
There are many instances where 100%/0% is in order.
One size doesn’t fit all.
If so then why default to maternal custody?
Big Divorce is doomed if this passes. I hope it passes
Children should go to the parent who is the best provider. Giving a kid to an unemployed or indebted mom just because she has a vagina, and then taking the father’s paycheck is just dumb. Vain, impulsive shoppers are incapable of managing a family budget. Best to give the father (and his new wife) custody. Most high value, high earning men will easily find a new wife after they divorce the lazy adulterous whore.
I don't understand the concern with this bill. It creates a rebuttable presumption which means a parent who does not think the other parent is suitable for equal parenting time can put on evidence to prove the presumption should be rebutted by a preponderance of the evidence. This is NO different than what happens now when both parents seek custody or one parent seeks joint custody and the other disagrees. It also does not modify the child support calculation. In cases where a court orders joint custody now, they already do what this bill requires. (caveat: when parties agree to joint custody it is not uncommon for the parties to agree no child support will be paid by either parent). What this bill does do is make a parent who does not want joint custody really ask themselves why they oppose joint custody. If the opposition is legitimate and based on evidence, then they should not hesitate to oppose it. If the opposition is based more on preference or motivated by spite, then this bill would potentially help avoid frivolous litigation. In other words, if a parent opposing joint custody does not have evidence to prove the other parent is not fit for joint custody, they should voluntarily agree to joint custody unless they want to spend a lot of money in attorney fees fighting a fight they will lose.
If the archaic thought process of most Mississippi Chancery Judges rules (and I submit it does), and this would force judges to award joint custody where practicable, why oppose it?
Custody to the wife and periodic time spent with dad has for too long been the standard.
Albright, one size doesn't fit all, military parents, it's always easy to find a reason -- an excuse, really -- not to do something. But children, especially the boys, need their father in their lives somewhere sometime. Let the scales of justice for once, then, balance even a little more toward the favor of fathers.
Disagree. It is emotionally charged because it levels the playing field after decades of women having advantage. That is all. The Legislature is right with this bill - children don't ask to be born, and both parents are equally accountable. So, ladies - you say you want equality - then ya better start to cooperate.
I think the initial/default presumption should be 50/50. Then other factors can be brought into the equation but I am getting very tired of the "man bad" being the prevailing thought. Women scream for equality in all aspects of life except when it directly impacts their ability to have an advantage over men. It's hypocrisy and selfishness. Many of these laws were put in place when the men were breadwinners and the women homemakers. So yes, childcare would typically default to the parent who was actually home during the day. With a shift in roles to be more mutual and shared, these laws need to catch up. Women aren't always the primary parent anymore.
And that argument about "not wanting to pay child support". Damn right...if dad is actually 50/50 co-parenting. Why the f**k should he pay if they are equal partners? Just as domestic violence is not the norm but rather the exception, so should the father being the default support.
I think this is probably some Focus on the Family political crap out of Tupelo.
But Albright has worked well enough for more than 40 years, so by all means let's screw with it and take more discretion away from chancellors, in the interest of "fairness."
Liberal visitation and relationships with both parents are already presumed to be in the best interests of the child. And it's been many years since judges presumed the mother to be the most fit parent.
In my opinion, a child needs a primary residence, not 1/2 and 1/2 there. And if the parents could work together that well, they'd probably still be married.
Female here, and I think this bill makes sense.
I also think women should be much more selective on who they choose to make babies with.
@ 11:54 am. "Liberal visitation and relationships with both parents are already presumed to be in the best interests of the child." Since when?!?! Liberal visitation as in weekend dads??? "And if the parents could work together that well, they'd probably still be married." Shaming tactics won't derail this bill; it might actually force families to not divorce due to so-called "no fault" and work together. Since Kentucky passed the bill divorce rates have actually plummeted.
"It will be terrible for military parents." So? They chose. I care about the kids.
"Children should go to the parent who is the best provider." NO. They should go to the best parent.
And finally - the primary reason we have so many criminals, bums, dropouts, panhandlers, entitled brats, no work ethic, etc., is the lack of a responsible father in the home. This won't "fix" that, but will remove some obstacles for fathers who desire to father.
Joint custody is not always "in the best interest of the child." It's good to see the word "rebuttable" in this bill, although I'm not comfortable with joint custody as the starting point in every case.
You, with bloodied bare knuckles, fight back any government attempt to diminish your constitutional right to bear arms, exercise any religion you choose, control your freedom of speech, take away your land to build a new mall, mandate your child take a vaccine, etc...
But you are saying that Fathers should relegate their Constitutional and God mandated rights to be full participants in their children's lives to a mathematical formula called the Albright Factors...
Pathetic!!
This bill will pass if not this session... I guarantee the next!!!
11:54 Focus on the Family is located in Colorado, not Tupelo. American Family Association in Tupelo, while not opposed to FOTF, is in no way related to that organization. But go ahead and keep making broad, sweeping and ill-informed judgements to expose your bias.
Male children need their male fathers around, a lot. This presumption of superior female parental fitness for male children is total garbage.
Good bill. One second before the divorce complaint is filed both parents are the custodial guardians of the children and have equal rights. But filing the complaint should not change any presumption of custody. Yes, the presumption that 'mama is more fit' is not part of the law, but any lawyer who's worked in family law knows the presumption is alive and well, if only due to the cultural roles of males and females in the household. For a man, it is really hard to overcome the situation where he loses an Albright check mark to his wife because they mutually chose to have one spouse work more so that the child would benefit from having more time with the other parent at home. They should start equally as parents and present their cases if they feel joint custody would not be in the child's best interests. And for those that say "a child needs stability," you clearly did not grow up in a divorced home - there is nothing stable about a divorce to the child and it only gets worse over time with the introduction of stepparents.
After 42 years of chancery practice, I can unequivocally state that when it comes down to what’s in the best interest of the child, it’s “generally” in a pre-teen child’s best interest to be in the custody of the mother. Natural law simply prescribes that “most”females are better nurturers than males. Under Albright, this is of course rebuttable. However, once a male becomes a teenager, it is very important that he is over seen and socialized by a strong male presence. Also, I have seen that some mothers leave a slime trail wherever they go. Thus, the Albright factors are very effective in determining what’s in the best interest of the child. On the other hand, if the bill becomes law, I predict that the Albright factors will be used by the courts to rebut the joint custody presumption.
12:09, Since at least 1986, when the Mississippi Supreme Court decided Cox v. Moulds, 490 So. 2d 866 (1986).
The law already creates a presumption in favor of joint custody, when both parents agree to it.
Albright means nothing in Simpson County. My wife was saddled with debt and 50/50 custody with a real piece of work who thinks laws do not apply to him. DUI's, driving with a suspended license, failure to pay his portion of tuition, a Guardian ad Litem courtesy of his ex-girlfriend's ex-husband, representing himself as a contractor when in reality, he's a handman that cons sub-contractors so he can ride around and play golf in a truck his parents pay for, not to mention the lies he tells the kids and plays the victim. Thankfully they're starting to figure him out while we keep our mouths shut and do as Jesus ask of us..... I am really surprised someone hasn't put him down, being from South Jackson, it takes Jesus to keep me in check since the law seems to let him skirt by any time they have an interaction with him.
How do you quantify the “best parent” in a court of law?
Sounds like an other unquantifiable feminine emotional response
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