Archive for November, 2017

Defending a Modification Lawsuit

Wednesday, November 22nd, 2017

Along with stubbing your toe and trips to the dentist, being sued is one of the more unpleasant experiences someone can encounter. Being sued for a modification of child support, visitation or custody is no different. An alleged change in circumstances often pries into two of the most private areas of a person’s life: their home and bank account. When defending a modification lawsuit, it is important to know what the other side must show, and what you can do to combat that evidence.

As mentioned in our previous posts, to be awarded a custody modification, the requesting party must meet a three-part test. There must be a material change in circumstances in the custodial home that occurred since the original decree, that material change must adversely affect the child, and a modification must be in the best interests of the child. The analysis for a modification of support is very similar: one may be awarded if there has been a substantial or material change in the circumstances of the father, the mother, or the child or children.

When a person is sued for modification of child custody, often there is some sort of abusive or neglectful behavior alleged to show the material change. In these cases, a guardian ad litem (GAL) is appointed to represent the child’s interests in the lawsuit, which can include a home study of the child’s living environment. This part of the process literally invites the legal system into your home, which is one of the personal areas of life. If you are the parent defending a custody modification, the best way to interact with a GAL is to show that your home is a suitable environment for your child. That means keeping your home clean, having ample food in the house, and, depending on the season, working heat and air. If there is some question as to your relationship with your child, show the GAL that the claim has either been exaggerated or that you are honestly working to improve that relationship. The GAL’s opinion is a large factor in the outcome.

Another common modification lawsuit is one that seeks to increase or decrease a person’s child support obligation. This arises when there is a belief that the obligor either has more or less income than when the agreement or order was entered. In these cases, one of the things that seems to bother clients the most is the revealing of their financial information. As private as finances are, a necessary evil of a support modification lawsuit is the ability to study this information to determine if there has been a material change in circumstances. Just as that information can be used to support a modification, you can introduce evidence that shows that your obligation should remain the same (or even be lowered). This could be for a number of reasons, such as the minor child now attending private school or having some major need that was unforeseeable at the time the agreement or order was entered.

Being the defendant in a lawsuit is not a fun thing, but it also isn’t the end of the world. Defending a modification lawsuit is similar to defending others: poke holes in the other side’s argument. If a problem in your relationship with your child has been falsely alleged, discredit that story. If there is a problem with that relationship, show an effort to be improving it. If it is alleged that you make more money and can pay more child support, put on proof of why that is not the case. Mississippi courts know that parenting is difficult, and co-parenting even more so. Showing a court that the child’s best interests are served by your custody or that your support obligation is what you deserve to pay is how to successfully defend a modification lawsuit. It sounds simple, but like many legal situations it can be extremely difficult. If you have a question about a modification lawsuit you are facing, call the Law Office of Matthew S. Poole at 601-573-7429.

How Do You Know A Change Is Material?

Thursday, November 16th, 2017

Of the many different legal situations that our clients come to our office with, modifications of child custody are some of the more complicated and misunderstood. Obviously, the custody of a child can only be changed by a court of competent jurisdiction, and the party requesting a modification has certain evidence that it must show to the court to win their case. A change in custody can be a very drastic measure for a child, and courts rightfully take this burden of proof seriously. Mississippians deserve to know what the state’s courts will likely consider a material change and what will not be enough to win a modification suit.

To be awarded a modification of a child’s custody, there must be a material change of circumstances in the custodial home since the original court order, that change must adversely affect the child, and the modification must be in the child’s best interests. This change must have been unforeseeable at the time of the original court order. If a material change is shown, the chancellor then determines whether that change is the one that adversely affects the child, and then analyzes the Albright factors (elsewhere on our website for your viewing) to make a decision on custody. Determining whether a change is “material” can be difficult, as even Black’s Law Dictionary merely defines “material” as “important” and “having influence or effect.”

In some cases, the materiality of the change is rather apparent. In Hall v. Hall, the father filed a petition for modification of child custody alleging, among other things, poor dental care rising to neglect and improper treatment after a dog bite. Hall v. Hall, 134 So.3d, 822, 824 (Miss. Ct. App. 2014). Testimony showed that one child’s teeth were rotten and black despite the father carrying dental insurance on the children, and that the mother failed to properly treat a child for a dog bite and also failed to inform the father about the bite. The chancellor, while acknowledging that accidents happen, considered the mother’s failures regarding the dog bite to be a material change in circumstances that adversely affected the child. The Mississippi Court of Appeals found no error on the chancellor’s part, and upheld the decision.

Other times, a change may be significant, but not material. In Giannaris v. Giannaris, the trial court awarded a modification in custody to the father after he argued that his relocation to California for work, the mother’s refusal to communicate with him, and the mother’s animosity toward the father’s new wife amounted to a material change in circumstance. Giannaris v. Giannaris, 960 So.2d 462 (Miss. Ct. App. 2007). The Mississippi Court of Appeals reversed, reasoning that since the Court had never found the relocation of a custodial parent to constitute a material change, that the relocation of a non-custodial parent did not either. This is just one instance in Mississippi case law where a change that many parents may see as material was determined to not be by the court.

Child custody cases are a fascinating blend of law and drama, as the wants and needs of many parties intersect, and often collide. These cases are also complex, with many pitfalls that may not seem obvious at first glance. Our office often speaks with clients that wish to pursue a modification who are surprised at the amount of evidence they need to show the court in order to win that case. Custody cases are long, expensive and stressful, and Mississippians deserve to know what they are signing up for when they decide to file a lawsuit for a modification. If you believe a material change in your child’s living situation is worthy of pursuing, call the Law Office of Matthew S. Poole. Our office is experienced in these matters, and believes that you deserve to know your realistic chances of being awarded a modification of child custody.

What Visitation Rights do Grandparents Have?

Sunday, November 12th, 2017

Grandparents often hold a special and significant place in the lives of their grandchildren as a symbol of love, support, and, as many of us know, discipline. Grandparents also often step into the role of a parent for a child for any number of reasons. This special relationship is highly respected in Mississippi, and the laws relating to the visitation rights of grandparents are no exception. Courts in Mississippi understand the dynamic at play with grandparents and their grandchildren, and if the preservation of that relationship is in the child’s best interest, then that relationship should not be disturbed.

Mississippi law allows a grandparent to petition for visitation rights after the death or termination of parental rights of one of the minor child’s parents. A grandparent may also do so for other reasons, and the court will award those rights if the grandparent has shown a viable relationship with the minor child, that a parent has unreasonably denied the visitation, and that the grandparent’s visitation rights are in the best interests of the child.
Obviously, the phrase “viable relationship” is quite vague, and the statute goes on to define that as a level of financial support of the minor child by the grandparent for more than 6 months, the grandparent having had frequent visitation, including overnight, for at least a year, or the grandparents caring for the minor child for a significant period with the parent absent from the home (including military duty or incarceration).

The wording of the statute gives grandparents many different ways to prove a viable relationship worthy of having visitation rights awarded. Previous overnight visitation is one of the more powerful showings of a viable relationship, as a grandparent being allowed to keep a child overnight demonstrates a large amount of trust and respect between the parent and grandparent. One caveat that grandparents need to be aware of regarding overnight visitation is the presence of the word “including.” A strict reading of this makes it seem as though a grandparent who has not had overnight visitation has no claim, like if the grandparent lives next door to the child and has had frequent visitation, but never overnight. A court’s interpretation and an attorney’s argument of the Legislature’s intent behind this phrasing may both be the difference in a case like this.

Still, a viable relationship between a grandparent and a grandchild can be a tough thing to show in a court of law, as those relationships often go beyond hard proof. Testimony of the grandchild may be the key factor in many of these cases, and many grandchildren are likely too young to have their testimony hold much weight in court. These are just a few of the gray areas that these cases can find themselves in. While cases involving the visitation rights of grandparents can be stressful, expensive and time-consuming, the Law Office of Matthew S. Poole is extremely well-equipped to handle your case with professionalism and personal service. If you believe your visitation rights as a grandparent are not being properly respected and would like to fight for those rights, call our office at 601-573-7429 to schedule a consultation.

Are Attorney’s Fees in Child Custody Cases Negotiable?

Wednesday, November 1st, 2017

Clients have more ability to negotiate attorney’s fees in child custody matters than they often realize. It is obvious to anyone who has had the burden of hiring a qualified attorney in a child custody matter, whether a first proceeding (a.k.a. initial adjudication) or a modification of custody/visitation that cost is always a serious obstacle-even insurmountable to the person living paycheck to paycheck. Depending on a variety of factors, it is typical that custody cases in Mississippi Chancery Courts can take anywhere between 25 and 150 hours of attorney time, and often even more if an appeal is necessary. Experienced custody attorneys usually charge between $200 and $300 per hour, so doing the math can be a scary thought, to put it gently.

It is important that you consider several factors in hiring a domestic lawyer, particularly when obtaining custody of children is the paramount goal. For one, do not hire an attorney who has practiced for a short duration of time (i.e., less than 6-8 years). Also, exercise extreme caution when considering an attorney who practices in multiple areas. Lawyers that litigate injury cases, criminal matters, contractual issues, and custody/domestic law are jacks of all trades, and masters of none. I have rarely observed an attorney that can wear multiple hats effectively. The best family lawyers are focused exclusively in that area, and I battle with the best domestic lawyers in Mississippi on a regular basis. The volume of statutes and case law within even one area of legal practice is difficult to ever have a firm grip upon…..the more areas of practice, the more irons on the fire, and the fire will extinguish itself. Buyer beware.

So what is the best advice, the lessons I can help the legal consumer to benefit themselves and, in kind, their children? The following is a list of basic precepts that will ensure you do not overpay for your domestic attorney, in no particular order;

Don’t attempt to negotiate the retainer AND the hourly rate, pick one and run with it. Since most domestic litigation exceeds the retainer, I would suggest you offer your prospective attorney 20% less than their advertised hourly rate. Even if you can only achieve a 15% reduction you will save a significant amount and make your retainer stretch further than it would have otherwise.

If a significant amount of travel will be needed to prosecute/defend your case, offer the lawyer only one-half of the hourly rate for litigating, my quarter says they will most often accept.

Offer to pay a small expense stipend/retainer ($350-$400) in exchange for a reduced retainer/hourly rate…this will cut much of the hassle lawyers face with seeking expense reimbursement. Time is money for attorneys, and time saved is money earned.

You have nothing to lose, except, well….hard-earned money. Don’t be afraid to ask. The worst you can expect is a resounding “No.” Most lawyers are realists, and we know that there are too dang many of us. You have more leverage in negotiating fees than you may expect.

Always take time to scrutinize your fee-statement. Lawyers are (believe it or not) usually fairly decent and ethical people. However, if something stands out as unusual or if there are an excessive amount of phone calls on your bill, don’t be afraid to question the veracity of those charges. It is not unusual for domestic cases to be 30-35% phone calls, but anything more is highly questionable at the least unless you require extraordinary client attention.

Hiring a domestic attorney can be a nerve-racking experience, and one that should not be taken lightly. Mississippians work hard for their money, and they deserve to feel that those concerns are being heard when hiring an attorney of any kind. Our office believes that when this issue is properly addressed, the lawyer-client relationship experiences growth in trust and understanding, making the unpleasant process of a domestic case a little easier on everyone involved.