The Court must base its decision upon the best interest and welfare of the child, and will look at the totality of the circumstances, including either parent’s health, for its decisions. However, in February, 2015, the Mississippi Court of Appeals made clear that it will follow the well-established rule that, even regarding parental health, a person seeking to change or modify a final custody order must demonstrate 1) that a substantial change in circumstances occurred after the decree was entered, 2) that the change in circumstances adversely affects the child, and 3) that the child’s best interests mandate the change in custody.
The parties in Robinson v. Robinson, 2013-CA-01907-COA, agreed at the time of their 2004 divorce that the mother would have full custody of their child, which agreement was then made a part of the Court’s order. At the time, the mother was in poor health with Hodgkin’s lymphoma and relied upon her parents for assistance with child care. In 2009, the father tried to modify custody, citing the mother’s health status and alleging that, as a result, she failed to exercise her parental rights. The Court did not modify custody, because the mother’s health condition existed at the time of divorce when the final custody order was entered. The Court also found that the mother did in fact exercise her custodial rights.
The father tried again in 2012 to modify custody, this time arguing that not only was the mother in poor health, but that he was now was remarried and had a good home for the child. The father claimed that much of the child’s care was provided by her grandparents due to the mother’s health issues, just as if they had custody of the child, when he was capable of caring for her.
In upholding the decision of the Chancery Court to deny once again the father’s request to modify the final custody order entered at the time of the divorce, the Court of Appeals observed that the mother’s health was poor at the time of the divorce and custody order; despite additional health problems that had occurred since the divorce, her condition had improved. It examined the mother’s relationship with the child, and found that the mother had not surrendered all parental control to the grandparents. The Court found that the father knew, at the time of the divorce and their agreed custody arrangements, that the mother was in poor health and had assistance from the child’s grandparents in caring for her.
The Robinson opinion made it clear that while even serious medical conditions will be weighed by the court in its custody determinations, it will use the same reasoning as it would for any factor affecting the family: it must always consider the best interest and welfare of the child and, when asked to change or modify the existing custody order, will not do so unless there was a substantial change in circumstances after the order was entered that adversely affects the child so greatly that child’s best interests mandate the change.