STUDENT WRITING COMPETITION
Mississippi where a parent has lost custody or visitation rights, either at the initial determination or a subsequent modification due to addictions— typically drug and alcohol. In Butler v. Butler , 218 So. 3d 759 (Miss. Ct. App. 2017), a mother was awarded physical custody and the father was awarded scheduled visitation due a pending DUI charge. 20 The second charge, which led to the restricted visitation, caused the mother’s concern about the father driving while under the influence with the child in the car. After completing rehab and failing to get along with the mother of the minor child enough to schedule his visitations, the father requested a modification of the visitation agreement, which led to the court rewarding the original visitation agreement stating, With visitation, as in all matters relating to a minor child, the primary consideration is the best interest of the child. We start from the presumption that where possible, that best interest is served by maintaining a viable relationship with both parents. Therefore, the goal in establishing visitation is to encourage and forge as strong of a bond as possible between the child and the non-custodial parent and between the child and the custodial parent under the least disruptive circumstances. Some major concerns regarding visitation schedules and custody modifications with gambling also involve the supervision of the children. If a non- custodial parent gambles in casinos and has visitations with their children scheduled, consideration will be given as to where children will be and who they will be surrounded by. Gambling has begun to be considered under parental conduct under Albright , although there is only one case so far though that has considered gambling addictions in custody determinations. In 2009, the Supreme Court wrote an opinion regarding a mother, Cynthia Lowrey, who had
gambling alcohol addictions leading to the issues of divorce, custody, and child support, making it an early case looking at the treatment of gambling addiction when others have not. 21 Ms. Lowrey lost custody of her children after her ex-husband provided enough evidence showing a substantial change of circumstances adversely impacting the children to modify the custody determination in his favor. Other states have considered gambling addiction in custody determinations, including modifications and visitations. In Minnesota, the appellate court heard a case in which the mother gambled excessively and lost her marital savings due to the habit. 22 The court determined that the mother’s gambling addiction affected the best interests of the children.61 A father who had a gambling and alcohol problems also failed to gain custody of his children due to his addictions. 23 Gambling addictions can result in detrimental impacts on children however, the severity of gambling addictions are not all the same. If a parent’s gambling addiction has not resulted in any instability or put the child’s safety at risk, then the addiction is not necessarily a factor against that parent. Some courts consider this from a moral or ethical point of view, but if the children are not negatively affected by the addiction, then this should be the only consideration a court should make. Even where gambling addictions impact custody agreements, there should be room for recovery. In 2012, the Mississippi Supreme Court granted custody to a father who was a past addict and worked hard to recover and stay sober by attending “weekly Alcoholics Anonymous (AA) meetings and weekly meetings at the church for recovering addicts.” 24 Mississippi’s appellate court also upheld a determination that awarded custody to a father who was sober for one year and worked to keep clean. 25 The same approach should also be taken with addiction to gambling.
20 Butler v. Butler , 218 So. 3d 759 (Miss. Ct. App. 2017). 21 Lowrey v. Lowrey , 25 So.3d 274 (Miss. 2009). 22 Nelson v. Nelson , No. A05-1507, 2006 WL 539394 (Minn. Ct. App. Mar. 7, 2006). The appellate court determined that the mother could not provide a stable home due to her gambling addiction and subsequent relapse 23 Gaydon v. Gaydon , 45,446 (La. App. 2 Cir. 5/12/10), 36 So. 3d 449 24 Hamby v. Hamby , 102 So. 3d 334 (Miss. Ct. App. 2012). The father had been sober for almost five years and testified that he believed he could stay clean and sober 25 Smullins v. Smullins, 77 So.3d 119, 129 (¶ 45) (Miss.Ct.App.2011).
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IMGL MAGAZINE | SEPTEMBER 2024
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