Archive for October, 2017

Age 12: Not A Magic Number

Wednesday, October 11th, 2017

The law is full of misconceptions, and one of the most common ones that our office receives calls about is the role a child plays in a custody case. Many people seem to believe that when the child reaches age 12, they have the choice of which parent to live with. While age 12 does have some significance in custody cases, it does not give the child license to make that decision entirely on their own. It does, however, allow the child to express a preference, and the way the child chooses to do that may largely affect the outcome.

It is often a joke with lawyers that if we allowed children to make their custody decision, the child would pick whichever parent allows them to jump on the bed and have ice cream for breakfast. That is a slight exaggeration, but judges acknowledge that many 12-year-olds do not have the maturity to make the best decision for themselves. Several factors go into the judge’s decision on how much weight to give the child’s preference, such as the child’s age, their reasons for their preference, and the judge’s personal sense of the child’s maturity level.

If the child has good reasons for picking the parent they want to live with, a judge will most certainly consider the child’s preference. Good reasons include the school situation, the home environment, and, to some extent, the child’s community record. Reasons that will most likely not persuade a judge include picking the more lenient parent, being closer to a girlfriend or boyfriend, or, like the old joke goes, the parent who lets the child eat pizza for every meal. Ultimately, the case largely leans on the child’s ability to make a thoughtful, reasonable argument to the judge about what living arrangement is in the child’s best interest. Below are some examples of good and bad arguments by a child for their preference.

What may work: “Your honor, I want to live with this parent because I believe this environment is best for my personal growth and educational opportunities.”

What will probably not work: “Your honor, this parent is stricter than the other, and therefore I do not wish to live with them.”

A child’s living arrangements is an extremely important decision, and courts prefer to have the child involved as much as possible. Allowing a child of 12 years or older to be able to show a preference and giving them the opportunity to speak on their behalf achieves that while still giving the court enough control over the situation to make the decision that is in the child’s best interest. We often hear the misconception that the child has control over their custody arrangement, and while they do play a role, it is not as great as many people believe. If you or someone you know has a custody problem, call the Law Office of Matthew S. Poole. Our office has the experience and knowledge to properly address your case and achieve a fair result. With any questions, call our office at 601-573-7429.

Child Custody Modification: What Does It Take?

Monday, October 2nd, 2017

Child custody arrangements are almost never easy to deal with, legally or emotionally. They become increasingly complex when one parent decides they deserve more time with the child. Modifications of child custody are long, stressful and expensive. You can probably imagine why, as the living arrangements of a child have a large impact on their development, and therefore courts prefer to leave no stone unturned in deciding on the best situation. Unfortunately, many times a parent is not granted custody because the court has some reservation about that parent’s ability to raise a child. The flip side of that coin is that people can change, sometimes for the better. When a parent who has lost custody improves their situation in some way, it may be natural to believe they are entitled to a modification of child custody. While this is certainly a factor, there are others at play in the court’s decision.

Proving a positive change in the non-custodial parent’s life can often be the easy part of a modification case. In order for child custody to be modified, the non-custodial parent must prove there has been a substantial change in the circumstances affecting the child, the change has adversely affected the child’s welfare, and that a change in custody is in the best interests of the child. Johnson v. Gray, 859 So.2d 1006, 1013 (Miss. 2003). Improvement in the condition of the non-custodial parent does not justify making a change. Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss. 1996).

This is where child custody modifications become the complicated cases they can be. The non-custodial parent could have very well improved an area of their life that the court felt was a concern, but if there has been no adverse change in the custodial parent, a modification of custody will probably not be successful. Therefore, the burden of proof for a non-custodial parent in a child modification case is twofold. The non-custodial parent must show that something has changed with the other parent that has negatively affected the child while also proving that a change in custody over to them serves the best interests of the child. This is quite a high burden to meet, which adds into the stress and expense of these kinds of cases.

Choosing which parent gets more time watching a child grow up is not a fun process, and it can be a difficult thing for parents to hear. Our office believes that child custody should never be dealt with lightly, and that Mississippians deserve to know their options going into a modification case. If you believe you are entitled to a modification of your custody arrangement, call the Law Office of Matthew S. Poole. We have the knowledge of the law regarding child custody modifications to make you feel confident in our legal services, and we also have a great passion for helping children and parents be together as much as possible. Call the Law Office of Matthew S. Poole at 601-573-7429.