351 So.3d 954
Miss.2022Background
- Becky and Jason Denham married in 2002, had three minor children, and separated in 2017; Becky filed for divorce and a GAL was appointed but later withdrew after offering a preliminary report.
- A November 2018 trial followed interim orders granting joint custody; Jason briefly appeared pro se when his counsel withdrew, then obtained new counsel for later trial days.
- Jason asked the chancellor to interview the children on the record; the chancellor refused on-the-record testimony, stated she would not permit the younger children to testify before meeting them, then conducted in-chambers interviews off the record.
- The chancellor awarded Becky sole physical custody, joint legal custody, and set visitation for Jason; she relied on an Albright analysis and found the moral fitness factor favored Becky.
- Jason appealed, challenging the denial of on-the-record child testimony, the in-chambers procedure and lack of a record, denial of continuance, and limits on evidence of Becky’s adultery; the Supreme Court granted certiorari focused on the children’s testimony issues.
- The Supreme Court held the chancellor applied incorrect legal standards regarding the children’s testimony and failed to record in-chambers interviews, reversed the custody determination, and remanded for proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the chancellor could exclude the children’s testimony per se without interviewing them | Jason: Chancellor pre-decided children incompetent and denied on-the-record interview; must interview before excluding | Becky: Children should not testify; privacy concerns support in-camera exclusion | Held: Error — chancellor must interview child(ren) before excluding testimony; per se exclusion impermissible (Jethrow) |
| Whether in-chambers interviews must be recorded | Jason: Robison requires a court reporter and record of in-camera interviews for appellate review | Becky: Privacy and future access to record should be prevented; seal concerns | Held: Error — in-chambers interviews must be recorded by a court reporter; record may be sealed but must exist (Robison) |
| Whether an older child has an absolute right to testify | Jason: Relies on Powell — older teen (here) should not be precluded as a matter of right | Becky: Chancellor has discretion to protect child and consider best interest | Held: No absolute right at/after age 12; competency concerns lessen with age, but chancellor must still consider best interests before allowing testimony; generally “tender years” = under 12 |
| Whether evidence of Becky’s adultery was improperly limited for moral-fitness analysis | Jason: Should be allowed to present evidence of Becky’s affairs for moral fitness factor even if not pleading condonation | Becky: Trial court limited evidence because condonation not pleaded | Held: If adultery is considered for moral fitness, both parties must be permitted to present relevant evidence; arbitrary limitation on one party is improper (court addressed on remand) |
Key Cases Cited
- Jethrow v. Jethrow, 571 So. 2d 270 (Miss. 1990) (disapproves routine use of children as witnesses but forbids per se exclusion; requires in-camera competency and best-interest inquiry and record of material matters)
- Robison v. Lanford, 841 So. 2d 1119 (Miss. 2003) (mandates that in-chambers interviews of minor children be recorded by a court reporter; record may be sealed)
- Powell v. Powell, 22 So. 2d 160 (Miss. 1945) (older child may be competent to testify; court recognized competence of a fifteen-year-old)
- Albright v. Albright, 437 So. 2d 1003 (Miss. 1983) (establishes factors for custody determinations)
- Carr v. Carr, 480 So. 2d 1120 (Miss. 1985) (moral fitness factor encompasses consideration of parental adultery)