Archive for September, 2017

In Loco Parentis: A Mile In Their Shoes

Wednesday, September 27th, 2017

Many of us have figures in our lives that mirror the role our parents play. Someone you trust, respect, and love. In some adult-child relationships, those people can step into the role of a biological parent. The doctrine of in loco parentis, which roughly translates to “in the place of a parent” addresses these relationships, and attempts to protect the best interests of both the child and the adult. Because of the delicate nature of these situations, Mississippians should know their rights when they believe that a child belongs with them instead of the natural parents.

When a person stands in loco parentis, they have assumed the status and obligations of a parent. Farve v. Medders, 241 Miss. 75, 81, 128 So.2d 877, 879 (Miss. 1961). This means that person provides parental supervision, support and education as if the child were their own. W.R. Fairchild Constr. Co. v. Owens, 224 So.2d 571, 575 (Miss. 1969). In loco parentis status carries the same rights and liabilities that belong to a natural parent, including a right to custody of the child against third parties. Farve, 128 So.2d at 879.

Although in loco parentis grants these rights, the rights of the natural parents are still superior. Mississippi law recognizes the natural parent presumption, which presumes that the biological parents of a child are the best guardians for that child. A third party’s in loco parentis status, standing alone, cannot by itself rebut that natural parent presumption. Smith v. Smith, 97 So.3d 43 (Miss. 2012). For a third party to rebut the natural parent presumption, it must be shown by clear and convincing evidence that 1) the parent has abandoned the child; 2) the parent has deserted the child; 3) the parent’s conduct is so immoral as to be detrimental to the child; or 4) the parent is unfit, mentally or otherwise, to have custody. Smith, 97 So.3d at 46. This is obviously a high burden, especially given that clear and convincing is the highest standard of proof used in civil courts. Once the presumption is rebutted, courts may then decide the custody of a child using the Albright factors.  http://www.mspoole.com/case-results/albright/.

Children deserve to have the best parental figures available to them. Unfortunately, sometimes the best parent is not the biological one. When someone stands in loco parentis to a child, that child depends on them to be there for them, and the law can help that person keep their rights to do so. If you or someone you know has a question about in loco parentis rights, call the Law Office of Matthew S. Poole. Our office has the knowledge, experience, and passion needed to best address your legal situation, and to help you keep your rights to foster a relationship with a child who needs you. To schedule an appointment, call our office at 601-573-7429.

Constructive Desertion: When You Just Know

Monday, September 11th, 2017

This is the way the world ends. Not with a bang but a whimper.” T.S. Eliot’s words from his poem “The Hollow Men” can unfortunately describe the end to many marriages. Mississippi law states that desertion of a marriage may act as grounds for a divorce, but the statutory desertion period is one year. When that time period has not been met but there are signs the marriage is ending, courts look to constructive desertion to entitle a party to a divorce. Constructive desertion has been defined by Mississippi courts as conduct that renders the continuance of the marriage unendurable or dangerous to life, health or safety. Benson v. Benson, 608 So.2d 709 (Miss. 1992).

In Benson, the trial court did not grant the parties a divorce on the grounds of cruel and inhuman treatment. The husband alleged that the wife had committed cruel and inhuman treatment by habitual ill-founded accusations, threats and malicious sarcasm, insults and verbal abuse. The trial court found that the martial problems were mostly based on the incompatibility of the parties, which is not a ground for divorce in Mississippi. The Court of Appeals found that the trial court had correctly denied a divorce on cruel and inhuman treatment, but remanded the case for the ground of constructive desertion.

As you can tell by that standard used by the courts, constructive desertion can take many forms. What makes a marriage “unendurable” is different for different people. Mississippi courts have held that inexcusable, long-continued refusal of sexual relations warrants a divorce on the ground of constructive desertion. Tedford v. Tedford, 856 So.2d 753 (2003). As silly as that may sound to some people, this could signal that two spouses have basically become roommates, and the marriage has therefore been deserted.

This conduct may also stem from monetary support issues. If a husband has the means and ability to support his wife, and negligently or willfully does not, then the wife will be justified in severing the marital relationship and leaving the home. If the husband still refuses to support her, then he will be guilty of constructive desertion even though the wife left the house. Deen v. Deen, 856 So.2d 736 (Miss. Ct. App. 2003).

As dramatic as divorces often are, sometimes their end comes with a whimper and not a bang. Sometimes, you just know a marriage has no chance of lasting. Constructive desertion is a ground that many spouses in Mississippi can use to leave a marriage that has not yet reached the statutory time requirement. If you or someone you know is in a marriage that meets the criteria of being unendurable for a reasonable person, or if the person’s life, health or safety is in danger, call the Law Office of Matthew S. Poole. Our office is experienced in courts throughout Mississippi with our full time and energy dedicated to domestic matters. This allows our office to know the nuances of the law, and to provide you with your best representation. Call the Law Office of Matthew S. Poole today at 601-573-7429.

How do Mississippi Courts View Joint Physical Custody Arrangements?

Friday, September 1st, 2017

Very commonly our office receives inquiry from parents seeking to obtain joint physical custody of a minor child or children. It is first important to recognize the distinction between legal and physical custody, which topic has been discussed in several of our previous posts, but I digress. The basic logic that is employed by the majority of Chancery Court judges in Mississippi is that it is preferable for a minor to have a primary physical residence, i.e., a soft place to land on a consistent basis without excessive “switching” of residences. Also, consider that most public school districts require proof of primary residence (as in one primary “home”) in order to meet admission criteria.

It is notable that statute in Mississippi mandates, with rare exception, that courts must approve of joint physical custody agreements. Therein is the rub: rarely are former lovers able to form an agreement that both can live with due to the highly emotional nature of child custody litigation whether in a divorce or otherwise.

There is no question that most commonly chancery judges prefer to award primary physical custody to the person deemed to be the better parent (based upon the best interests of the child) and to grant only standard visitation to the other. Standard visitation will be discussed at length in an upcoming entry, but basically consists of every other weekend, 10 days during the Christmas Holidays, alternating major holidays/birthdays, and two 2-week periods of summer visitation.

There are several judges we deal with on a regular visitation that local domestic attorneys refer to as “standard visitation” judges. They are not often inclined to deviate much, if at all, from standard visitation. That being said, there are others who will more creatively craft a schedule which is in excess of that contemplated by the statutes that clarify the meaning of standard visitation.

Many factors are at play, but for the purpose of this article we will exclude the chancellors who are not inclined to deviate from the basic fundamentals of standard visitation. This is not to say that many chancery judges cannot be convinced to award joint physical custody in spite of an inclination otherwise. Again, it is absolutely crucial that we are discussing this basic principle within the context of matters where a custody agreement cannot be reached by the parents.

In short, it should always be the first order of business to attempt to forge a joint custody agreement with your child’s other parent. If you are reading this, you have likely already recognized that it is much easier said than done. Only after you have turned over every stone to work together without success should you consider filing a contested custody matter.

When litigating child custody matters, always remember that joint physical custody of your minor children becomes more difficult the further away you live from the other parent. If you do in fact live relatively closely to your child’s other parent and you have a relatively healthy relationship with them and are able to communicate without significant friction, particularly regarding your child’s well-being, your odds of the court awarding joint physical custody increase a great deal.

It is always a partial victory, even when denied equal custody, to be awarded additional time with your children beyond standard visitation. Chancellors have broad discretion in these matters and may craft a visitation schedule in any number of ways, so make sure your attorney has considered making the vast array of arguments that suit your unique set of facts. Do not forget that tax consequences of a minor’s residence are most commonly based upon their primary residence unless agreed to otherwise.

If you have been unable to reach an agreement with your child’s father or mother regarding joint custody or to obtain something in excess of standard visitation, we will utilize all existing case law, statute, as well as subjective factual argument to your advantage.

Matthew Poole, Esq.,

Jackson, Mississippi

601-573-7429