Archive for January, 2018

Albright Factors Part 2: Continuity of Care

Wednesday, January 24th, 2018

Our previous article discussed the first child custody determination factor from the Mississippi Supreme Court’s ruling in Albright v. Albright, which is the age, health and sex of the minor child. We now shift our focus to the next factor that may be overlooked at first, but then seems to make intuitive sense to most people: the parent who has had continuity of care of the child prior to the separation of the parties.

As with many factors in child custody cases, people often believe this factor presents an inherent bias toward the mother. However, this is not always the case. Either parent could have a very demanding job that simply takes time away from providing care to the child at home. For example, in Copeland v. Copeland, the Chancellor found that this factor favored the father, because he would spend time with the child after work, prepare the child’s meals, and get the child ready for bed until the mother arrived home from work. Copeland v. Copeland, 904 So.2d 1066, 1076 (Miss. 2004). The Court also noted that the continuity of care should be examined prior to and during the separation, so temporary custody cannot weigh too heavily in favor of one parent automatically.

The continuity of care of a minor child can also be examined by which parent seems to carry a bigger load of the responsibilities in caring for a minor child. In May v. May, the mother believed this factor favored her because she took her son to most of his doctor’s appointments, often cooked dinner for the family, and got her son ready to go to school in the morning. The Court noted that while this seemed true, the factor favored both parents evenly because there was evidence that the parents split duties regarding the child’s care, as the father had also taken the child to some appointments and cooked to the best of his abilities (soup and grilling). May v. May, 107 So.3d 1052, 1055 (Miss. Ct. App. 2013).

This factor is one of the Albright factors that begins almost at the birth of the child. Continuity of care will favor the parent who has taken on responsibility of the child’s care, but can often come out as favoring both parents evenly. Contributing to the care of a child can range from the obvious, such as changing and feeding, to the not-so-obvious, such as bedtime stories and trips to the doctor. Parents engaged in a custody battle obviously care about the children, so if you think one of your parenting duties is related to the continuity of care, speak up! Those assertions can only help you, and showing the ability to be responsible for child care will help greatly in the Court’s decision.

Albright Factors: Age, Health, and Gender

Tuesday, January 16th, 2018

Many of you are probably thinking that, according to our last post, that the age of the child is no longer considered a major factor in child custody decisions. This is not true, as even though the tender years doctrine is no longer treated as a hardline rule, the age of the child is still a factor that courts weigh in these cases, along with the health and gender of the child. The Mississippi Court of Appeals noted that sometimes all three factors are grouped into one larger factor, and sometimes age is separated from health and gender as its own factor. Flowers v. Flowers, 90 So.3d 672, 679 (Miss. Ct. App. 2012). While these factors may seem rather cut and dry, there are many ways that an attorney can construe these factors in the favor of their client to swing the balance of the court’s decision on child custody.

While most parents are concerned and interested in the health of their child, not all of those parents can give the child the attention their health deserves. Children afflicted by serious illnesses require a lot of personal care, and that means a lot of doctor’s appointments. Courts may look to see which of the parents is more able to accompany the child to these health-related appointments in making their decision on custody. That parent may also be better able to spend more time with the child making sure they feel safe, loved, and often simply to take their mind off their illness. While a parent with a demanding job can feel a huge amount of concern for their child’s health, they also cannot be in two places at once.

As mentioned in our previous post, the age of the child was given large consideration in child custody decisions, and although it is not the only factor, courts still use it in their analysis. The age of the child often relates to breastfeeding, as the standard was that during the child’s “tender years” that the presumption lied with the mother being the best guardian until either parent could equally care for the child. Before the prevalence of formula, this factor would have all but certainly favored the mother, leaving fathers with an uphill battle for custody of their child.

Related to the application of the tender years doctrine is the factor of the gender of the child. This factor can play a part as the child grows older and enters adolescence. Mississippi courts have noted that growing and maturing boys could need guidance from their fathers, as well as maturing girls from their mothers, and that this needed help and direction should be considered when making a custody decision. Parker v. South, 913 So.2d 339 (Miss. Ct. App. 2005).

The health, age and sex of the child factors in child custody cases may seem like afterthoughts compared to some others that will follow in this series, however these can still play a pivotal role in a chancellor’s decision in awarding custody. If a parent is able to spend more time with a child affected by illnesses, a chancellor will consider that. If the child is entering a confusing and frustrating time in their lives and one parent is better suited to help them through it, a chancellor will consider that as well. Many people will probably skim over this factor because it is often not a “smoking gun,” but it is still worthy of consideration, because it can play a large role in the outcome.

Introduction to Albright: The Tender Years Doctrine

Wednesday, January 10th, 2018

One of the more common misconceptions we hear from clients in our office is that there is an inherent bias toward the mother in child custody actions. While it is often true that the mother has been the child’s primary caregiver, there are still 11 other factors that courts weigh to make the decision that is in the child’s best interest. However, before these factors were spelled out in Albright v. Albright, Mississippi courts often made this decision with emphasis on the tender years doctrine.

The tender years doctrine basically stands for the idea that during a child’s “tender years” (birth to around 3 years old), that the child’s best interests were served by remaining with the mother. Under the common law, fathers had an absolute proprietary right to the custody of his legitimate minor children. Later, the law shifted and began to favor the mother. The case of Johns v. Johns established this presumption in Mississippi law, stating that “In all cases where any child is of such tender age as to require the mother’s care for its physical welfare it should be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared for by other persons.” Johns v. Johns, 57 Miss. 530 (1879). Of course, this seems closely related to breastfeeding. For many years, courts in many states followed this as a rule instead of a factor in custody.

Later, the tender years presumption came under scrutiny from courts around the United States. Some of the concern from courts came from the supposed discrimination against fathers in child custody cases based solely on their sex. The Mississippi Supreme Court recognized the decline in other state courts’ consideration of the tender years doctrine, noting that although the doctrine should not be disregarded, that other factors should be considered as well. These factors were outlined in the case of Albright v. Albright. In that case, the Court noted that while the age of the child was an important factor in the decision of the child’s custody, that it wasn’t rational to base that decision solely on age. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). Later in the opinion, the Court laid out the factors that should be considered in a child custody case, and those are the factors used to this day.

Our office often receives calls from people who are simply ill-informed about the decision-making of courts in child custody actions. Due to this, our office feels that people deserve to know what courts actually use to make that huge decision. Following this blog post, we will be publishing a new post about each of the factors considered when hearing the case from each party that will change that child’s life for good. If you or someone you know has a question about the Albright factors, or you’ve simply always heard that the child goes with the mother, call the Law Office of Matthew Poole. Our office has the knowledge of these factors and their application to answer any question you may have. Thank you, and please continue to read the rest of our Albright factor series that will be published over the coming weeks.

Minimums and Maximums in a Child Custody Case

Thursday, January 4th, 2018

First of all, our office would like to wish you and your loved ones a happy New Year, and we hope your holiday season was a time of relaxation and fellowship with those you care about. The beginning of the year is naturally a busy time for our office, as we receive many calls from both existing and prospective clients reenergized from vacation to pursue their domestic case. When going through a child custody case, there is obviously a minimal and a maximum effort you can put forth. Our office feels that clients should know what these two efforts look like in order to know that their case is being handled with the correct level of diligence.

As you can probably guess, the minimum effort required in a child custody case is filing a petition for custody and a motion for temporary relief. Filing the complaint starts the process, and a temporary hearing is where the judge awards or denies relief and sets forth an order for the parties to abide by until that temporary order is replaced by a more permanent one after the case has been fully heard. Sometimes, this is all effort required, as the parties may find it easy to obey that court order and see no reason to go back to court. However, this is the exception and not the rule. Putting forth full effort in a child custody case requires diving into the discovery process with both feet forward. This starts with the issuance of interrogatories, requests for production of documents, and the noticing of depositions.

Interrogatories are questions about the subject matter of the case that the other side has 30 days to answer in writing. These questions often relate to witnesses, employment of the responder, and explanation of claims found in pleadings. Interrogatories lay the groundwork for a child custody case, and so issuing them is a step in the right direction of pursuing a custody case. Listing witnesses is especially important, because if you do not list a potential witness, that person cannot testify at trial.

Discovery also includes requests for production of documents. The documents sought in this phase of discovery will provide the bulk of the evidence used at trial. These requests often asked for are financial documents such as bank and credit card statements, utility bills to show expenses, and tax returns. Many clients often express reluctance in producing these documents, however an important part of a child custody case is showing that you are able to financially provide for that child. Like witnesses, requesting and disclosing proper documents is very important, because you will waive your right to use them at trial if you do not.

Another helpful discovery option available to you is the well-known tool of a deposition, which is a scheduled interview with the other side in the presence of a court reporter. The advantage of conducting a deposition is twofold. First, it helps your attorney gauge the other side’s reaction to a question in real time, as the other side has no time to prepare an answer as in written discovery. Second, it helps to nail the other side down to a narrative of their case. That story must either be adhered to or later contradicted, which can call into question that person’s credibility.

As with many things in life, in a child custody case you can either put forth the minimum effort required or go beyond that. It may be that filing a petition and a temporary order works out for you and gets you the relief you seek. However, life is messy, and cases as volatile as child custody will most likely require more effort. Engaging in discovery and applying pressure to the other side to match your effort is the best way to come out ahead in a child custody case. If you have questions about what should be done in your child custody case, call the Law Office of Matthew Poole. Our office has the knowledge and experience to give you a complete and honest answer to any domestic law question you may have.