Archive for May, 2018

Domestic Violence as a Bar to Custody/Visitation Rights – or Not?

Thursday, May 31st, 2018

According to the National Coalition Against Domestic Violence, there are approximately 10 million people physically abused by an intimate partner in the United States every year. Unfortunately, 1 in 15 children are exposed to this violence and 90% of these children personally witness the incidents. It is no secret that the effects of domestic violence extend far beyond physical injury to trigger mental illness, substance abuse, and even suicide. With this in mind, courts typically find that it is not in the best interest of a child to be placed in the physical custody of a parent who has a history of committing domestic violence.

A “history” of domestic violence includes not only a pattern of abusive behavior, but also any isolated incident that caused “serious bodily injury” to a partner or another family member. However, it is not impossible for people with this kind of past to get physical custody of their children. In fact, a court may find that parental custody would be in the best interest of the child even if both parents have a history of domestic violence. According to Mississippi Code § 93-5-24(9)(a)(iii), the court may consider the following factors when determining whether or not physical custody will be awarded to a parent with a history of domestic violence:

(1) Whether the perpetrator of family violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse or such other circumstances which affect the best interest of the child or children;

(2) Whether the perpetrator has successfully completed a batterer’s treatment program;

(3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;

(4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;

(5) If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and

(6) Whether the perpetrator of domestic violence has committed any further acts of domestic violence

If custody is not awarded to the parent with a history of domestic violence then visitation may be allowed instead. Generally, the court can mandate any condition that it deems necessary in order to ensure the safety of a child during visitations. Conditions may include, but are not limited to, supervision of the visitation, parent’s restraint from drug and alcohol use during and for twenty-four hours prior to the visitation, or prohibited overnight visitation with the parent.

Another rather interesting option the court has regarding visitations is to require payment of a bond for the return and safety of the child. In other words, the parent would pay a fee to take the child and then receive the money back once the child was returned without harm… Compared to the alternatives, this option often seems a bit out of place. For example, one may ask whether the safety and welfare of a child is really guaranteed by the leverage of a monetary payment. However controversial this option may seem, it is rarely used and is usually a last-resort measure. We must trust the chancellors of Mississippi to use the highest discretion to apply this option appropriately.

“Ne Exeat” (Latin for “do not leave”) security bonds are used to ensure the safe return of a child by preventing another party from leaving, or removing the child from, the jurisdiction of the court or state. Although Mississippi lacks a statutory provision for these bonds, they could still be required through the use of a chancellor’s broad equitable powers.

Ultimately, parents may still be granted physical custody or visitations with their children despite a history of domestic violence. If you or someone you know has a question about the custody or visitation rights of a parent with a history of domestic violence, please don’t hesitate to call us. The Law Office of Matthew S. Poole is highly experienced in these types of situations and we would be happy to help.

Written by Jessica Jasper, J.D. Candidate, Class of 2020, Mississippi College School of Law

Gas Fumes and Perfumes: Modifications of Custody Involving Teenagers

Tuesday, May 22nd, 2018

While in court recently on a child custody modification, a chancellor was remarking on how difficult teenagers can be when they are smelling “both gas fumes and perfumes.” While also an attempt to break the tension in the room and to help the parties relax, the judge’s words evidenced how tough implementing a visitation schedule on a headstrong teenager with a driver’s license can be. In this particular case, the question posed to one of the parties was “what happens when the child doesn’t listen?”

This was an interesting question that different chancellors will approach in their own ways. A judge stated to me once that if a child did not want to attend a visitation with their parents, the judge would take their cell phone. Cell phones are life to many teenagers, and this judge found taking them away to be an extremely effective way to promote obedience of a court order.

What happens when a teenager really does not care about their phone? In the “gas fumes and perfumes” case, the child there was a lover of the outdoors who spent his time with 4-H and fishing, and did not really care if they had a cell phone or not. The judge in that case recognized this and posed the question of “what then?” Do we hogtie him and take him to the visitation? Throw him in jail? Hard labor? These questions become more difficult to answer when dealing with a teenager who is entering an exciting and confusing time of their lives.

Teenagers are notorious for doing the exact opposite of what they are told to do. It is simply in their nature. However, court orders are still court orders. They should be followed by whatever parties bound and should have consequences if not followed. The difficulty with teenagers is finding some way to punish them that will actually work. People of that age often do not have the funds to pay a fine, and if we threw every disobedient teenager into jail, we would have to build a million jails!

The biggest way to help facilitate teenage obedience of court orders regarding visitation seems to be communication. As a parent, the best thing to do is to talk about these visitation times with a teenager. Make them feel like it is something they want to do, rather than must do. Make them feel as though they are going to a second home and not a vacation. Teenagers want to have their concerns fall on ears that are listening. Striking a balance between parent and friend will help facilitate a teenager’s obedience with a court order, and to make sure that they won’t get in the car and drive off every time they want to act counter to that order.

Written by Kenneth B. Davis, Associate Attorney at the Law Office of Matthew S. Poole.

Importance of a Father in the Home

Saturday, May 12th, 2018

Maintaining the family unit should be the number one goal of any mother and father. Even when going through a divorce, it is essential that both parents are just as involved in their child’s life as they possible can be. However, with divorce ever on the rise in the United States, an all too common consequence of parent’s separating can be an absence of the father in the home. This can mean a great deal of adversity for the children later on in life. Be it an increased risk of poverty or a higher chance of incarceration, living without a father puts a child’s life squarely at risk for all manner of difficulty.

Since 1960, the percentage of children living in two-parent homes has decreased dramatically from 88% down to 66%. This drop has been caused by many factors, but the most prevalent one is the rise in divorce. Across the nation, married couples are calling it quits and their children are stuck in the middle. Unfortunately, this increase in divorce has made some dads pack up permanently, leaving their ex-wife with the kids, and their kids without a father-figure. This can have an indescribable effect on the life of a child.

According to the Census Bureau, there are 24 million children in the United States, and one out of three of them live without their biological father in the home. Compared to children who live with both parents, these children are four times more likely to live in poverty, and two times more likely to drop out of high school. Combine these statistics with the poverty income level in the U.S. only being $12,140.00 a year, a child living in a single parent, fatherless home has to escape becoming another statistic just to overcome the odds already stacked against them.

Risks of poverty and lack of education aside, there is a darker and more horrifying concern of growing up without a father. One of the more striking statistics provided by the Census Bureau shows that 63% of youth suicides in the United States are performed by children of single-parent homes. This is an astonishing number. To put this data a different way, one of the only single identifying metrics that connects two thirds of all children from around the country that commit suicide is the fact that they are raised in a single-parent home. This alone shows the importance of why maintaining a two-parent household is integral in a child’s life.

Going through a divorce can be the toughest thing someone has to go through. Although most everyone would rather not split up their own family, it is often not that simple. When mom and dad cannot work it out, or even refuse to work it out, the child suffers. Custody battles can be the same way. When one parent refuses to let mom or dad be a part of their kid’s lives, it hurts the child most of all. If you want to be a part of their child’s life, but are struggling because of divorce, custody, or your spouse is refusing your rights as a parent, please do not hesitate to call us. The Law Office of Matthew S. Poole is well-seasoned to handle these types of situations and we would be happy to help.

Written by J. Tyler Cox, J.D., Class of 2018

Finances In A Divorce

Monday, May 7th, 2018

A person’s financial situation has more influence over day-to-day life than almost any other aspect. Finances influence our ability to enjoy certain luxuries that life brings. Money is also a very private subject. Almost universally, it is considered rude to inquire about someone’s finances in a social setting, and also viewed as arrogant to brag about money. Therefore, when a prospective client comes to our office seeking to initiate or defend a domestic lawsuit, they are often surprised at the level of financial disclosure that comes with that proceeding.

Finances indicate more than personal wealth. They are a good indicator of a person’s ability to hold down a job, ably manage their finances, and to provide security for their families. Directing your finances in a sensible way shows the court a certain level of maturity. Money is hard to earn, and easy to spend. In domestic litigation, especially when children are involved, courts take into consideration how the litigants have been able to soundly oversee their earnings.

A parent’s finances are a factor in child custody cases, and the financial situation of the parents is even included among the Albright factors that chancellors use in making a child custody determination. You can view an earlier post on our website about that factor as well as the other Albright factors through our website’s blog search function. This does not mean that chancellors will simply look at which parent makes the most money and award custody to that parent. It is but one factor to show that the person seeking custody is able to provide for the child as they need and deserve.

Income also plays a large part in the awarding of alimony or separate maintenance. If one spouse in a divorce makes much more money and the other party needs some financial assistance, courts will take that into consideration when deciding whether or not to avoid alimony.

One of the most important documents in domestic litigation is the 8.05 Financial Declaration, named for the Uniform Chancery Rule that requires certain financial disclosures to be made. This document lists a person’s income, assets, and liabilities. Having an ex-spouse be able to see that information can make clients uncomfortable, but they are important declarations to make in these cases. Chancery courts, which handle domestic matters, are courts of equity. This means that chancery courts attempt to resolve disputes in a way that is fair to both litigants and that avoids unjustly enriching one party over the other. These rules regarding financial disclosures can be a friend to those who follow them, and a foe to those who don’t.

Our office understands the uneasiness that comes with giving out financial information, but we also have the experience to know that following these rules can only help the court look favorably upon a party. For a person involved in domestic litigation, being able to show the capability to control their finances will go a long way in achieving whatever goal that person wishes to reach. If you or someone you know has a question about the financial reporting involved in a lawsuit, call the Law Office of Matthew S. Poole. We will be happy to lend our knowledge to give you a response that is the truth, and to help you navigate any domestic legal issue you may have.

Matthew Poole is a Jackson, Mississippi domestic attorney who specializes in family litigation. He was admitted to practice in 2004.

Parental Alienation: Why You Should Act Fast

Thursday, May 3rd, 2018

Pretty regularly at our office, we unfortunately have child custody cases where one parent continually makes derogatory remarks about the other parent in front of their child. This is one of the worst things a parent can do when wanting to obtain custody, especially when the child is not old enough to legally have a preference with which parent he/she would rather live with. What many parents do not realize is that a parent has an inherent duty to foster and facilitate the relationship between their child and that child’s other parent. Disparaging the other parent can not only hurt their case in the eyes of a chancellor, but it can also adversely affect the child. From a chancellor’s perspective, belittling the other parent in an effort to negatively impact the child’s relationship with them is wholly improper and unacceptable.

When the “brainwashing” of a child by one parent gets so bad that it manipulates the child into disliking or not wanting a relationship with the other parent, there is more than likely a case of parental alienation. Parental alienation is a term used by child custody lawyers and child psychologists alike to describe what happens in situations where a parent has made conscious efforts, by negative words or actions, to upset their child’s relationship with the other parent. An example of this would be where a mother has spoken badly about a father, made derogatory remarks about him, or even lied about him to the child, all in order to alter that child’s feelings towards his dad, so that the child would not want to live with him.

Other examples of behaviors that can cause parental alienation include one parent discussing details of the parent’s relationship, scheduling the child’s activities during the other parent’s visitation time, not informing the other parent the times of those activities in order for them not to attend, denying the other parent important school and medical records, and giving the child ultimatums encouraging them to pick one parent over the other. This type of behavior has major consequences, and if not addressed as soon as possible, can permanently destroy a child’s relationship with their parent. A child’s mind is very susceptible, especially to a person that they instinctively trust – as they would a parent. Prolonged exposure to this type of influence deteriorates little by little any chance of a relationship they might have had with one of their mother or father.

In years past, parental alienation issues could only be brought up when there was a non-disparagement clause in the custody order. This prevented parental alienation from being any more than a contempt issue. Now, however, chancellors in Mississippi consider disparagement through the parenting-skills factor under Albright. With disparagement now being a consideration in Albright, it constitutes a material change sufficient for modification of custody.

Isolating a parent from their child is serious, and in the end, it does more damage to the child than it does to the other parent. To put it plainly, parental alienation is a form of child abuse. Chancellors know this, that is why any hard evidence that a mother or father is molding their child’s emotions negatively toward the other is met with extreme prejudice. Absent neglect and endangerment, nothing can kill a parent’s chances of being awarded custody more than harmfully reshaping their child’s relationship with their mom or dad. If you believe that this is happening to you, or someone you may know, please give us a call. We have the expertise to handle parental alienation cases, and any of your child custody needs.

Matthew Poole is a Jackson, Mississippi domestic attorney who specializes in family litigation. He was admitted to practice in 2004.