Archive for November, 2016

How is a Temporary Hearing (for alimony or other expenses and potentially child custody) in a Divorce Action Different from a Final Hearing on the Merits (Trial)?

Friday, November 18th, 2016

If you and your attorney have pursued a temporary hearing in a divorce action, there are several reasons that you were counseled to go forward with that temporary hearing prior to going to a final trial on the merits of the entire case.  It is important to understand that in a divorce, a temporary hearing is a hearing that is designed to maintain the status quo between the parties prior to their ability to seek or be heard by at a final trial.  

Many people get less than fair result at a temporary hearing because of the perception that they are required to maintain the typical and enduring financial relationship between themselves and their spouse until they are able to be heard at a final hearing.  It is very important to note that there are often times occasions where a party has been placed under a temporary order to pay, for instance, temporary alimony or continue to make car payments, mortgage notes and pay other expenses of their spouse, but when the parties finally get to trial its determined that no sufficient grounds for divorce exist.  As we have already discussed many times in this blog, the typical grounds for divorce (i.e. the most common) adultery, habitual cruelty, inhumane treatment, habitual alcoholism, addiction to an opiates or other similar drugs, and desertion.  Some other grounds for divorce do exist although they are not as commonly invoked such as incurable insanity, impotency, and bigamy.

It is important that any potential client realize that even if they do get a less than favorable result at a temporary hearing, it is likely because they have been the financial bread winner/provider of the relationship since the inception of the marriage.  There are some instances where the person paying the majority of the bills can and will get a favorable result at a temporary divorce hearing.  Those would include situations where a spouse lost a job due to misconduct, is employed far below their earning capacity, or has exhibited bad faith in the failure to seek adequate employment.  Clients need not worry if they are in a position that their result at a temporary hearing was less adequate than what they seek at a final hearing.  Often times, for instance, a mortgage note will be required to be paid by the person who has paid the mortgage note for the majority of or for the duration of the marriage.  However at a final hearing on the merits, if the person seeking to remain in the marital home cannot afford the mortgage note, it is unlikely that the court will continue to require the primary wage-earner to continue to make that payment, unless it is in the form of alimony.

Alimony has been discussed at length in several of our other blogs, but it is very important to know that the American Society of Matrimonial Lawyers have made a general suggestion and therefore proposed policy that at twenty years of marriage, alimony is almost assured to be paid unto the party needing the stability and experiencing the primary financial hardship as a result of the divorce.  We have seen situations where short term marriages do result in an award of alimony; however the very bottom end of the spectrum of people to be awarded alimony would be in the six to eight year marriage range.  Remember that alimony is based primarily on need, although the courts have recently made certain modifications to the Alimony Laws that indicate that a party who is more at fault is equal to or more at fault than their spouse in the cause of divorce will not be entitled to alimony, regardless of need.

These changes have given hope to the people who have been cheated on, abused, or generally had their rights within the marital institution violated although they have been in a short term marriage.  WE agree with this shift, and feel that it represents strong public policy.  Although we think there are many benefits to this change in the common law of the State of Mississippi, many changes are probably forthcoming in terms of clarifying the courts general position on whether or not the award of alimony is appropriate.  We continually strive to be abreast of the most recent changes in Mississippi law so that our clients are given fair treatment by the courts.  

If you need help with a temporary custody, child support, or alimony hearing, or if you have been served with process or a summons, indicating that you must appear in a Chancery Court in the State of Mississippi regarding a divorce action, we are best equipped to give you the proper guidance and counsel in order to help you effectuate your rights.  Please give us a call at (601)573-7429 or send us an e-mail at matthewspoole@gmail.com.  We will be glad to discuss your case with you and determine how best to proceed.

Three Common Mistakes When Dealing with the Guardian Ad Litem Assigned to Your Mississippi Child Custody Case

Friday, November 18th, 2016

First of all, it’s important to understand the basic role of a guardian ad litem in a child custody matter (a.k.a. child custody lawsuit).  If a guardian ad litem has been appointed by a Mississippi Chancellor (often referred to as a Chancery Court Judge) to investigate facts that are relevant to your custody case and make a recommendation to the court as to what they believe is in the best interests of a child, there are three common mistakes that people can and will make that can adversely impact the result and report of the guardian ad litem.   It is important to know that guardian ad litem is a latin term for “guardian at law”.  These guardians are generally appointed by the court in order to perform a fact finding expedition and make a recommendation as to the placement of physical and legal custody of a minor child or children.  It is also crucial to note that the court does not have to follow the findings of the guardian ad litem, although deviations from the general recommendations of the guardian are rare and have to be supported by substantial evidence as presented to the court.

The most common mistakes we see in dealing with our client’s involvement with guardians ad litem are as follows; not sufficiently communicating with the guardian ad litem as to the issues that need to be investigated.  For instance, we have clients that have three or four (or sometimes half-a-dozen) issues that they wish to be investigated by the guardian ad litem, but they only communicate those to us—they expect all communication to go through their lawyer (which is not unreasonable, but impractical at best).  It is important that the client take an active role in speaking with the guardian in order to facilitate the investigation and keep costs down, and it is also important that the client be able to shine a light on all of the issues that they believe are relevant to the best interests of the minor child.  It is important to stay abreast of the guardian ad litem’s progress in their investigation and the various things (i.e. factual issues relevant to custody) that they are considering in making in a recommendation to the court.

It is also important, when possible, to communicate with the guardian ad litem in writing so that there will be a substantial, provable record as to the issues that you wish to be investigated.  It is crucial to know that the more issues and the more complex issues that exist, the guardian’s investigation will have to be more extensive and often this will require that you incur additional cost due to that additional work required in performing the investigation.  

Another very common mistake we see clients make is disparaging their spouse or ex to the guardian ad litem.  This is not well-founded, and we always advise against this ill-advised conduct.  Put simply, it does not cast the disparaging parent in a positive light.  If you have criticisms of your ex’s conduct as it relates to what is best for your child or children, then those issues need to be dealt with in a mature, rational way.

It is important though that the thrust of your argument doesn’t consist of disparaging or demeaning or name calling of your ex-spouse or your ex-girlfriend or ex-boyfriend.  The child’s parent deserves respect regardless of the behaviors that you complain of.  But be objective, and make sure your focus is on what is best for your child or children, not winning the moral high ground.   Courts and domestic attorneys are very familiar in dealing with situations where the motive is not the protection of the child or children, but moral vindication—feeling that you “won”.  The long and short of dealing with your custody matter is essentially taking the objective approach; don’t be angry, don’t  be upset, don’t be overly emotional, just lay the bare groundwork  for the issues that you believe are important that the guardian ad litem consider in making in making their custody recommendation to Chancery Court.  Trust their expertise.  

The next common mistake that we see is failing to have a clear educational plan or path for your minor child or children.  You have to be engaged with your minor child in order to demonstrate to the guardian ad litem that you are the parent that is more involved in facilitating that child’s education and will continue to do so in the future.  It is not necessarily important that you have a college plan for a five year old, however it is important to actively monitor your child’s progress and address issues and short- comings where you are able to make a positive impact and help the child improve in their educational  performance.  It is also crucial to consider having a plan in place for children above seventh grade for their ultimate placement in college and potential course of study.  It is not say that you must have their entire future planned out, but addressing your child’s strengths and weaknesses in the classroom bit-by- bit is important, and will show the guardian ad litem demonstrably that you are the parent with the best ability to effectuate your child’s best interest and goals.  Most importantly, it shows that you care.

If you have a question about this article or would like to share your thoughts, please feel free to contact us at The Law Office of Matthew Poole (601) 573-7429 or matthewspoole@gmail.com.  We are best equipped to assess your situation and give you some practical advice on steps you can take to increase your odds on gaining custody of your child or children.

Adoption and Termination of Parental Rights in Mississippi

Saturday, November 5th, 2016

Adoption is a huge step in the lives of both the child being adopted and the adoptive parents. The child loses one family and gains another. The adoptive parents’ family grows, as does their responsibility and commitment to another life. However, to have a legal adoption, there must first be a termination of the birth parents’ parental rights. A termination of parental rights (TPR) has severe and permanent consequences for a biological parent; essentially, once their parental rights have been terminated, the child is no longer theirs.

A TPR is commenced when a petition is filed by any interested party, be it a relative, a family friend, or even an agency that is holding custody of the child or that has been made aware of circumstances that are cause for concern for the safety and well being of the child. The child is then appointed a guardian ad litem, whose role it is to protect the best interests of the child – the main consideration in a custody decision. Much like divorce, there are several grounds recognized in Mississippi for a termination of parental rights.

These grounds include:

A serious mental illness or physical setback that prevents the parent from providing adequate care for the child, even with assistance;

An addiction to drugs or alcohol, which the parent fails to seek help in overcoming;

An unwillingness or inability to provide necessary food, clothing, shelter, and/or medical care for the child;

A failure to reasonably visit or communicate with the child;

A deterioration of the parent-child relationship due to abuse and/or neglect; and

A criminal conviction of any of a long list of crimes against the child (or any other child).

Once the termination is complete, then an interested party may proceed with an adoption petition. If that party is not a relative or a stepparent, a home study will be conducted by the Department of Human Services to determine if the petitioners are fit to adopt, and if the adoption is in the child’s best interest.

While the decision to approve a TPR is largely the judge’s choice and highly subjective, if you have the means and the concern for the child, you can seek for that termination with relatively high confidence. The child’s best interests will be well-served between your concern and the presence of well-trained legal professionals, such as a guardian ad litem and a judge. If you have a reasonable belief that a child needs your help, and you are willing to give your help, there is a way to do it that will likely have a satisfactory outcome for the child’s well-being.

A decision as life-changing as seeking a Termination of Parental Rights (T.P.R.) and a subsequent adoption is always extremely stressful, and often, speaking with someone who has expertise in the matter is necessary. You likely have questions about whether a guardianship or permanent custody case is better under your specific circumstances, and we are equipped with the ability to If you need advice on how best to proceed with an adoption, or if you are a parent who would like to know how to protect yourself against false allegations, call the Law Office of Matthew Poole, and we will be happy to provide you with a free consultation.

Matthew Poole (601) 573-7429