Divorce, family conflict and high emotion can sometimes lead to domestic violence, and sometimes domestic violence leads to high emotion, family conflict and divorce. But, in addition to Domestic Violence being a crime, the perpetrator of family violence is presumed to be unfit for custody by law.
Mississippi Law provides that a parent with a history of family violence shall not have custody. MCA Section 93-5-24 (9) applies to “every proceeding where the custody of a child is in dispute.” 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. Miss. Code Ann. § 93-5-24 (9)(a)(1).
Once proof of family violence is offered and findings of family violence is made by the court, the following must be enforced by the Court.
- That “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…physical custody of a parent who has a history of perpetrating family violence.”
- That the Court “shall make written findings to document…why the presumption was or was not triggered.”
- That the presumption… be rebutted only by a preponderance of the evidence.
- That the six factors set forth in the statute be considered in determining whether the presumption was overcome. Miss. Code Ann. § 93-5-24 (9)(a)(iii)(1-6)
1. Whether the perpetrator demonstrated that gaining custody …is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse or such other circumstances;
2. Whether the perpetrator completed a treatment program;
3. Whether the perpetrator completed alcohol or drug abuse counseling;
4. Whether the perpetrator completed a parenting class;
5. If the perpetrator is on probation, whether he or she is restrained by order, and whether he has complied with conditions; and
6. Whether the perpetrator has committed any further acts of domestic violence.
- That the Court “make written findings…why the presumption was or was not rebutted.”
- That if both parents had a history of family violence, that custody “be awarded solely to the parent less likely to continue to perpetrate family violence.”
- That the Court “award visitation…only if the court finds that adequate provision for the safety of the child and the parent who is a victim can be made.”
It is error for the Court to not address the statutory requirements upon a showing of family violence. Lawrence v. Lawrence, 956 So.2d 251 (Miss. App. 2006).
It is clear that the statute applies to all child custody matters. 93-5-24 (9) applies to “every proceeding where the custody of a child is in dispute.” Id. Additionally, the statute contains no requirement that a party ask for its application. Instead, the statute requires a mandatory duty to make findings as to whether or not the presumption was or was not triggered by the history of family violence. Lawrence v. Lawrence, 956 So.2d 251 (Miss. App. 2006).
Matthew Thompson is a family law attorney in Mississippi and cautions clients that violence makes everything worse.
You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.