In the recent case of Munday v. McLendon, a young, stay at home mother lost custody of her 9-year-old daughter after getting custody in a divorce granted in 2013. Here are the factors cited by the court:
The Mother moved to Louisiana even though all of her family and the father’s family lived in Leakesville, Mississippi
the child returned from her mother with flea bites
the child returned from her mother with sunburn
the child returned from her mother “all smelly” and wanted to shower
the child used to get allergy shots in Mississippi but was not getting any shots in Louisiana
the child had seven unexcused absences from school in the spring semester. School rules authorized criminal prosecution for more than five unexcused absences. (Note, the child’s grades had not suffered.)
The mother was shown to have interfered with five weeks of visitation and then tried to cover it up with fake text messages.
A guardian ad litem for the child expressed concerns that the child had been coached by the mother.
This case does not mean that just because some or all of these factors might show up in the proof that a change in custody is warranted. Each case must stand on its own, but this case stands as a warning to parents to conduct themselves properly, to not interfere with the other parent and to not make decisions on a significant move without consulting a lawyer.
Here are the basic legal guidelines cited by the Munday Court:
A modification of custody is warranted when the moving parent successfully shows “(1) that a material change of circumstances has occurred in the custodial home since the 9 most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child.” Powell v. Powell, 976 So. 2d 358, 361 (¶11) (Miss. Ct. App. 2008) (citing Giannaris v. Giannaris, 960 So. 2d 462, 467-68 (¶10) (Miss. 2007)). ¶28. Totality of the circumstances can serve as a basis for a material change. See, e.g., Minter v. Minter, 29 So. 3d 840, 850 (¶37) (Miss. Ct. App. 2009). The chancellor must consider the totality of the circumstances when determining whether such a material change in circumstances has occurred. Creel v. Cornacchione, 831 So. 2d 1179, 1183 (¶15) (Miss. Ct. App. 2002). If, after examining the totality of the circumstances, a material change in circumstances in the custodial home is found to have occurred, the chancellor “must separately and affirmatively determine that this change is one which adversely affects the child[ ].” Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997) (citation omitted). ¶29. “Although Mississippi law generally has recognized that a parent’s relocation alone does not constitute a material change in circumstances, we note that the impact of a relocation of the custodial parent upon the child constitutes a factor that the chancellor permissibly considers on the motion for modification.” Robinson v. Brown, 58 So. 3d 38, 43 (¶13) (Miss. Ct. App. 2011) (citing Lambert v. Lambert, 872 So. 2d 679, 685 (¶24) (Miss. Ct. App. 2003)). This Court has found even a short move can result in a material change in circumstances where the move causes the custody agreement to become impractical. Id. at (¶14) (citing Pearson v. Pearson, 11 So. 3d 178, 182 (¶10) (Miss. Ct. App. 2009)).
Munday v. McLendon, NO. 2018-CA-00375-COA (Decided 12/03/19) https://courts.ms.gov/Images/Opinions/CO141002.pdf