Archive for August, 2018

Tips Hiring a Family Lawyer; a Psychological Approach

Friday, August 31st, 2018

Let me first begin by saying that I have had tremendous pleasure being a long-time member of the Mississippi Bar. Even though there are always a few bad apples, by and large our Mississippi legal community is exceptional in so many ways. Many passionate and hard-working members of our state bar are truly a blessing to Mississippi and our great citizens. Also true is that not all domestic attorneys are created equal. And I have been against the most seasoned, skilled ones as well as newbie recent graduates that we middle aged, slightly greying practitioners refer to as the “baby lawyers”.

Although not all of the baby lawyers were terribly bad, few are even close to average when considering the full gamut of family law practitioners. I would like to outline a few non-traditional and overlooked thoughts about my unique perspective after taking several hundred divorces and custody cases to trial.

I recently read an exceptional article in Forbes magazine by Mark Cohen, the CEO of Legal Mosaic, a legal consulting firm, that addressed on an interesting question which brought me to the inspiration to write this piece. I will echo the basic spirit of that article with a slight twist. So, here goes nothing, as we used to say as kids.

  1. People skills, which Mr. Cohen refers to as “emotional quotient”, are vital to the success of attorneys. A good lawyer recognizes pretty quickly that our job is simply to persuade judge and jury. Our task is far from mathematical. It is highly theatrical. And the most applicable science to lawyering is more language arts/social science than the chemistry, physics, and biology I so dreaded in high-school at Jackson Prep. Formulas toward achieving legal goals are few and far between.
  1. Expertise is crucial for arbiters of dispute. Whether it requires an appreciable command of the facts or grasp of their relevance when filtered through mountains of precedent, the best lawyers have robust recognition of the minutiae that can make or break their case. My recent article called “Child Custody, the Devil is Always in the Detail” focuses on that dynamic in a more expansive and illustrative way.
  1. The best lawyers are able to present to court an argument that is; a. Concise, b. Linear, and, c. Cohesive. So what does this perfect legal argument look like? Funny that you asked. A strong legal argument avoids barely relevant information and has, what I would call, fluidity. It does not dart here or there and everywhere. It cuts through the fat and to the meat of legal substance. It is easily understood, even powerfully self-evident.
  1. Being observant and the skill in reading another person, whether your own client or the opposition, is absolutely critical. Many, many cases are won and lost because of simple oversight. I’ve always told my associates and law clerks to keep their head on a swivel; miss nothing. The value of observation is highly underrated. Paying close attention is as important to good lawyering as it is to a kindergarten student.
  1. Intelligence is important, though not valuable by way of comparison the the first 4 factors we discussed above. Surely, having high intelligence does help at the margins, but the variation in attorney intelligence is relatively small, even less than one standard deviation from the mean on a traditional bell-curve. That translates that over ninety percent of attorneys are within 10-12 i.q. points– not a large margin. Some of the worst lawyers I have faced did not lack intelligence, the effect of smarts is fairly minimal.

In sum, properly vetting an attorney is far more art than hard science. Child custody and divorce cases demand a well-rounded arbiter of your legal dispute. Look for an attorney who is easy to connect with, who understands the power of artful persuasion, and who cares about your case. Trust your instincts, they are God-given, and far too often ignored.

Matthew Poole is a Jackson, Mississippi domestic attorney and 2001 Second Century Merit Scholar focused on child custody dispute resolution. He lives in Northeast Jackson with his eight-year old son, Lucas.

Mom’s Advantage: Child Custody Myths Debunked

Monday, August 27th, 2018

Before I began my legal career in 2004 at Wilkins, Stephens, and Tipton, a large medical malpractice and pharmaceutical defense firm right here in Jackson, Mississippi, I was spared much of the knowledge and agony that regularly face domestic lawyers. Although the task of family attorneys can be very rewarding, it also presents the emotional rollercoaster that so many of us, lawyers included, seek to avoid on a daily basis. Practicing domestic law presents some certainties and a whole lot of grey area. A client’s ability to accept the human element and subjectivity that come along with family conflict are immeasurable to not only their own well-being, but that of their children.

There still exists a strong perception that mom has a significant advantage in a dispute with dad over the custody of children, particularly in the Southeast U.S.. We have time and again written on the Albright vs. Albright factors and their seminal importance in child custody litigation. They are extensively detailed in our prior blog posts. We began a series in January, 2018 that adequately outlines each of the factors that a court considers in child custody cases. The articles are written on an early college level so that readers are able to focus on substance over form and legalese.

I highly recommend to any litigant that they gain as much knowledge as possible to advance their cause. Knowledge IS power. Simply put, the Albright case outlines the criteria that a Chancery Court must consider in their deliberation as to the best interests of a minor child’s physical custody. Simple answers to child-custody cases do not exist, period. Years before I began practicing domestic law, Mississippi Chancery Courts were able to confer a modest legal advantage unto mom in child custody proceedings. Those times are essentially forgotten history.

The general rule of thumb prior to the Mississippi Supreme Court ruling in Albright was that a child was better served during their “tender years” by mom having physical custody. That is no longer the case. If I were advising a mother in a custody dispute, which I have hundreds of times, I would offer one simple tip: breastfeed as long as possible. Although breast-feeding alone is not an Albright factor, continuity of care is a factor, and Mississippi chancery court judges will always give great pause before even considering removing a child from the biological nurturing mom can provide. Score one for mom.

Do not believe the hype: Outside of the lone fact previously discussed, mom does not have any measurable advantage over dad in a custody proceeding. Partly due to the equal protection clause, a portion of the 14th amendment of the U.S. Constitution, and the changing dynamics in family structures, the law no longer favors a mother over dad in custody suits. It is crucial to any child-custody litigant to have recognition of the power vested in chancery judges. They not only interpret law, they find fact as in the role that a jury would in damages cases.

It is amazing that so many people with no legal training will continue to speak as if they are seasoned attorneys. They are not able to offer any appreciable wisdom to a custody litigant. It’s one more thing better left for the true experts such as myself. Ignore your friends attempts to be constitutional scholars, no matter how well-intended.

If you are going through a custody or visitation case, you already are aware of the stress and complexity they usually present. I am not only a single father, I have seen those battles from the front line likely as much as any single litigator around. I deeply understand the challenges that child custody cases present. We look forward to assisting you in your time of great need.

Matthew Poole is a seasoned Jackson, Mississippi domestic lawyer who has evaluated in excess of 6,000 domestic legal proceedings. His sole area of practice is family law.

The “Other Factor” That Can Sink Your Custody Claim: Alienating Child Affection

Monday, August 20th, 2018

I was recently in trial in the northern part of our great state and had a unique case wherein I had the good fortune of securing custody of a four-year-old little boy for my client, the father. The case was one of the most difficult I have ever handled in 14 years- both legally and emotionally. It was a roller-coaster of facts and subjectivity of the law, to say the least. The opposing attorney was highly competent; a seasoned prosecutor from Lee County- one of the best I have ever faced.

My client was guilty of some degree of minor violence; domestic abuse which was relatively easy to prove, and yet he obtained custody of his son. How can this happen, you may ask, and rightfully so. It seems the long odds stacked against my client were impossible to overcome. This case lasted 23 months in total. The victory was by a razor-thin margin. I was on hanging on every word from the court and counsel opposite until the very end.

Any custody attorney will harp on the factors a court will consider in determining the best interests in a child’s physical placement. Mom no longer has a clear and plain advantage, due in large part to the equal protection clause of the U.S. Constitution. The “tender years” doctrine has been significantly eroded, to the point that only breastfeeding an infant child confers some advantage to mom. Dad now starts on equal footing in a custody battle for all practical purposes. As a single father with sole legal and physical custody of my son, I have reaped the benefit of the recent change in law.

Beginning January 10, 2018 our office began a series of articles outlining all of the Albright factors- the defined matters for a court to consider in a custody dispute. We did not write only one article on the only non-specific Albright factor which is the most subjective; the one that is most easily described as a “catch-all”. Up for grabs and potentially up-ending any custody case are “other relevant factors”. What could these possibly be?

In all of the custody experience I have, never did I imagine that I could win a custody case based on these mysterious and elusive “other factors” when my client lost more than half of the specified Albright issues. Not in a million years did I believe that some undefined, highly subjective issue would win the day. And then, exactly that occured. I am still somewhat surprised by the result– pleasantly surprised, that is. The ugly head of parental alienation was the “other factor” that swayed the balance to my client’s victory.

Parental alienation of a child has always been regarded as paramount to a Mississippi court- even more so lately. That said, I have increasingly witnessed first-hand that if the alienating parent’s behavior is severe, courts will likely deem it to be tantamount to child abuse, negating what would be an award of physical custody to the opposing parent. To be frank, a decade ago this “other factor” would have been considered as just another Albright issue. Today, it can upend an entire case. That is music to my ears. Times have certainly changed.

Alienation comes in many shapes and forms. Most often it is in the nature of passive-aggressive parental alienation; making it difficult to get a hold of a child by phone, making subtle comments about the other parent’s morals and character, or even stoking a child’s concern about whether their other parent cares about them. Other times parental alienation takes on an overtly aggressive form.

The case that prompted me to write this article involved mom, who had a bi-racial son, instructing him to call his father and his family a “bunch of n___ers”. And it was all caught on tape. It didn’t happen only once, this four-year-old little guy, half African American, had made the infamous N-word a part of his vocabulary, all thanks to mom. It was horrible to hear on tape, heartbreaking at the very least.

The focus of this article is not necessarily parental alienation, it is a forewarning to parents who engage in extreme behaviors to the psychological and emotional detriment of their child. Be it excessive shaming of a child, prolonged absence, or just plain verbal cruelty, beware of the “other factors”–they can flat sink what would have otherwise been a custody victory. Chancery courts have broad discretion in child custody matters, and anything you say-to your child or anyone involved-can and will be held against you.

My last piece of advice is relatively simple. Mother Theresa once said, “Not all of us can do great things. But we can do small things with great heart”. I couldn’t have said it better. When navigating the treacherous waters of child-custody litigation, do not forget that children need love, happiness, and innocence of adult issues as much as they need food and water. It is easy to lose sight of this fact when angry at an ex-lover. Keep sight of what matters most: protecting your child from turmoil and shielding them from despair.

If you are involved in a child custody case that requires a robust knowledge base and formidable experience, I will gladly attempt to point you in the right direction. Be forewarned- simple answers to complex issues, particularly those involving child custody, are elusive and require a high level of competency. If you need just that, contact us anytime.

Matthew Poole is a single parent of an eight year-old boy, Lucas. He is well-acclimated to the various challenges that face single parents, both professionally and personally. His practice has been focused on child custody matters for 14 years as a parental advocate.

Communication and Consideration: No-Fault Divorce Revisited

Wednesday, August 15th, 2018

Everyone wants a cheap and stress-free divorce when they are ready to move on. Who can blame them when their marital circumstances are beyond repair? No one wants the agony and cost of fighting in a court of law over assets, child custody, or the myriad other factors associated with divorce litigation. Unfortunately, no-fault divorce isn’t easily achieved without some degree of tension in most cases. Again, there aren’t easy answers to complex issues, but the more that can be disputed likely will be, and costs often soar as a result. So what is the best solution?

As in marriage, divorce presents many challenges that lack a simple solution, particularly when children are involved. I cannot speak directly to the exact price other local lawyers charge for irreconcilable differences divorces (or “I.D.” as they are often referred to), but I can say that they will always be far less expensive than fault-based divorce, which often requires multiple open-court hearings and dozens of hours of attorney fees. The stress and turmoil of a legal battle are also not easy to avoid on some level, at least.

Even at a relatively modest rate of, let’s say $225 per hour and an optimistic time for resolution of, for instance 35 hours, the math gets scary quickly (225 x 35 = $7,875). When adding in court costs and other fees such as service of process and investigative fees, it is easy to see why the national average cost of divorce in 2017 was $15,500. We presented the relevant statistics in detail in our April 28, 2018 blog article and reference to a Nolo Legal study evaluating divorce costs. I highly recommend reading that in combination with this posting.

When recognizing that no-fault/irreconcilable difference divorce is usually less than $1,200, it is hard not to see the appeal. However, the appeal and low-cost of I.D. divorce has one danger that is often ignored by clients: If you don’t have 1. Communication, and 2. Consideration for fairness to both parties involved, you are most likely wasting your time and hard-earned money. It’s absolutely paramount that clients understand that Mississippi is not a “true no-fault state” at this time. In other words, you either both must agree to all terms of divorce, such as child custody and visitation, insurance issues, asset division, even alimony in some cases–or you must litigate. And therein lies the rub.

Our neighbor to the west, Louisiana, permits that a no-fault divorce be granted after 365 days of separation whether there is an agreement to divorce or not. While this seems an easy solution to a complex problem, it isn’t quite as appealing when we realize that issues such as child custody and financial matters still will require contested hearings unless the parties agree. Often this means that the cost won’t be any less than in Mississippi.

In 14 years of practicing domestic law, I can say that, despite making very clear to my clients that they may waste their money on attempting I.D. divorce, approximately one-third of them did exactly that because of overly-optimistic enthusiasm. I don’t blame any one of them one iota for trying the cheap route to divorce, but it is not without its downfalls. There are myriad factors that can derail what should be a simple divorce. It’s very easy to throw your money away because of optimism. As a former associate of mine used to say, “Haste makes waste”.

So, what is my advice? First of all, cooler heads usually prevail. The level of emotion and the amount one spends on domestic legal fees are strongly correlated. Therefore, 1. Make a checklist of all issues that require attention before contacting an attorney. 2. Have a calm, frank discussion with your spouse, and 3. Give your spouse appropriate consideration on all of the issues that need to be addressed–remember, you both start with equal marital rights. If you can do these three simple things, you will likely have saved yourself and your children a lot of emotional turmoil and cold, hard cash.

If we can give you assistance in determining the best path toward the dissolution of your marriage, please feel free to give us a call. I have 14 years of focused domestic law experience– we do not practice in any other area– and take great pride in helping find my clients the easiest and least expensive way out of tough spots. Even if a no-fault divorce is not an option, where there is a will, there is always a way.

Matthew Poole is a Jackson, Mississippi family law attorney who specializes in domestic case evaluation and marital conflict resolution.

If It Isn’t Paradoxical, It’s Not True: Custody Myths Debunked

Thursday, August 9th, 2018

Let me start by stating what is too often overlooked: there are not extremely obvious answers or simple solutions in child custody battles. In my experience having taken several hundred custody and visitation disputes to trial, I have learned a few things that could potentially help a litigant in these stressful cases.

My intention is simple today: to bring basic common sense into the murky water of domestic custody disputes. The myth is this: the worse I make the other parent/ex/spouse appear, the better I appear to the court. Not so fast, as we shall see.

Once upon a time I had a client who was probably, but not certainly, the better parent when compared to her husband, but she made a relatively simple custody victory elusive by getting in her own way….it often happens. When testifying about the parenting skills of her husband (who sought full physical and legal custody of a 6 year old little boy), she would instantly and consistently revert to name-calling and bashing the man she married years ago. Most of her testimony focused on his numerous affairs, not his skill in parenting. He was far more collected and even-tempered than she. He did in fact have several admitted extramarital affairs, and she clearly was not past any one of them. Her wounds were simply too fresh to focus on her child. To him, her insults were like water off of a duck’s back….and therein lies the rub.

Even though we did eventually secure a favorable result, our understandably angry client would likely have spent a fraction of her final invoice if she had bitten her tongue, if even every so often. She was clearly so upset with her husband that she lost all sight of the one thing the court cared about: what was best for her little boy. A case that could have been resolved in a couple of months instead required a couple of dozen hearings and far more too much wasted time.

Even though it is quite tempting to use a Chancery Court proceeding to tell the whole story about the downfall of a marriage/relationship, some things are much better left unsaid. Please realize that the court already knows you don’t have warm, fuzzy feelings about your ex/spouse, or you wouldn’t be there in the first place. It is already well-understood. Slinging mud at your ex often simply irritates the Chancellor hearing your case. Often the best thing to say in court is nothing at all, especially if it causes distraction.

The paradox lies in a simple misconception; that having more negative to say about your child’s other parent will score points, therefore you win. Not so fast; goodwill and maturity go a long way–Mississippi Chancellors appreciate calm reasoning and the desire to get along, particularly for the childrens’ benefit, if nothing less. Don’t ever think you are worse-off than the next custody litigant. Cooler heads most often, and likely should, prevail. Often the litigant who is emotionally-charged teters on the brink of appearing to alienate a child’s innocent affection of both mom and dad.

The attitude a child custody litigant brings with them to trial is overtly paramount to the success of their claim and the efficiency in obtaining a positive outcome. It is very easy to lose sight of what matters most to the court: the best interests of children. Emotionally-charged litigants often forget that their testimony will not only be judged on its believability, but on its responsibility and focus.

My best advice to anyone going through a custody fight (whether or not in a divorce or a custody/modification proceeding) is to remain calm and stay focused on your kids. Forget about the indiscretions, the lying, the cheating, or whatever else your ex did to bring you to disappointment UNLESS it has a direct bearing on your children. It’s usually water under the bridge. Don’t forget that Chancery Court judges are human too, and they hear bickering on a daily basis. It gets tiresome at the least. The myth is that mudslinging is effective; the truth is that it is not very productive.

If you are seeking an attorney who has a clear view of the big picture in a custody dispute, I will gladly lend my advice. Shaping your testimony and being in the right frame of mind are fundamental to winning child custody disputes. If you are prepared to consider viewing this type of litigation from a fresh, objective, and realistic perspective, give us a call.

Matthew Poole is a Jackson, Mississippi Family and Domestic Attorney with 14 years of focused experience in child custody litigation and divorce.

Child Custody Devils-Always in the Detail

Sunday, August 5th, 2018

First, I would like to pay a short tribute to my Associate Attorney, Honorable Kenneth Davis, Esq., whom I have had the pleasure of mentoring for the past 3 years. He is moving on to a new venture today, and his steady hand and careful deliberation at the helm in the treacherous waters of domestic litigation will be deeply missed. We wish him great success and happiness and will always hold him in high regard. God bless, Attorney Davis.

Now, forward we move into a new era of life and law as a family attorney with a new addition to my staff, Ms. Linda Wilson, a 42 year veteran stenographer (court reporter) and former assistant to a retired Chancery Judge in Madison and Yazoo County, Mississippi. She is very knowledgeable and we look forward to her addition to my office.

But I digress, and feel compelled to relay a brief story about the vast importance of detail in custody related legal proceedings. And this particular tale is rooted in a basic mistake made by opposing counsel in a custody modification case. Buckle up, this story proves that truth really is stranger than fiction.

About 8 years ago, I had a very interesting case where I represented the mother of the 4 year old girl and was seeking relief from the courts on an emergent basis because the father of the child was caught shoplifting donuts from a Walmart in South Mississippi. One of the most bizarre things about this case is that the father had a relatively high paying job but appeared to have a proclivity for stealing for the sheer thrill of it. Sad, but true. The little girl was not only present with dad during the heist, but also during the 110 mile per hour police chase that ensued. Yes, these things really do happen

When I took the deposition of the father I asked him a question regarding whether or not he was under the influence of an illicit drug or alcohol during this scandalous escapade. When I asked the question, he said simply, “Well, I was–”, and his lawyer stopped him to interpose an objection of some sort….and this is where the details ended up sinking my opponents case in one fell swoop. (Not to break my arm patting myself on the back, but I appropriately moved along to another subject at that point altogether instead of arguing the merits of the lawyer’s objection).

Now, this is where it turned into a particularly lovely case for my client. When we got into Rankin County Chancery Court, I did what lawyers do-exploited any weakness of my opponent to the advantage of my client. Even though it is true that the case would have likely been won even without the interesting deposition testimony, I jumped on what appeared to be a terribly destructive admission by the donut-theiving daddy, and the judge ate it up.

If my opposing counsel had done is job correctly, he would have had the opportunity to correct that damaging apparent admission with follow-up questions however he neglected to do so. And so, as the saying goes, sometimes it’s the little things that kill. As you already guessed, my client got a very favorable result.

Citing my second favorite basketball player of all time (behind Michael Jordan, of course), Kareem Abdul-Jabar, it’s usually the smallest of things that make the difference between winning and losing. And win, we did.

If I can help you do the little things right in your divorce or custody case well and to pay attention to the detail, please give us a call.

Matthew Poole is a Jackson, Mississippi domestic relations attorney with 14 years of experience in family law. He was admitted to practice in 2004 and lives in North Jackson with his son, Lucas.

Corporal Punishment vs. Child Abuse: A Thin Line

Wednesday, August 1st, 2018

Can your child be taken away because of a simple spanking? When I was elementary school at a public institution in Rankin County, Mississippi, I had the misfortune of enduring the school principal’s penchant for enforcing rules by use of a very large paddle, equipped with golf-ball sized holes in order to increase the velocity of each collision. In the early 1990’s, it was standard fare to expect a good old-fashioned whipping from school administration for playground roughhousing or any other number of youthful misdeeds. Boy, how times have changed.

In today’s world of political correctness and fear of legal liability, it seems that those days are long gone, and will likely never return. Parents have often asked our office whether or not a Youth Court or Chancery Court has the authority to take their children from their physical custody wherein there has been significant corporal punishment. Gone are the days of schools bruising the rear-end of a miscreant child (usually boys, alas).

Desoto County, Mississippi recently dealt with an appeal revolving around the question of distinguishing between reasonable discipline versus child abuse, and the line is very thin and broadly within the discretion of the trial court in civil matters. In this particular instance, the appellate court had to consider the sufficiency of evidence utilized by the trial court in removing four children from their father’s custody. At hand was a simple query, at least at first glance.

The appellate court first, and a matter of proper judicial due course, considered the bare language of the applicable Mississippi statute, section 43-21-105(m). In pertinent part, said statute provides that an abused child is one “whose parent….has caused or allowed to be caused, upon the child… emotional abuse, mental injury, non-accidental physical injury or other maltreatment”. Wow, talk about a broad definition, allowing wide discretion for the judge. However, the statute on point also states that “physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section”. Thanks for the semi-clarification, right?

It seems to me that the question of whether or not corporal punish ment of a child is violative of Mississippi law comes down to good old-fashioned common sense. While the criminal statutes regarding abuse of minors are relatively easy to interpret, the civil law remains open to broad interpretation. It is my hunch that any physical punishment that is accompanied by bruising or other visible signature will likely run afoul of the statute on point, but the margin for interpretation is razor-thin. Foremost, always remember that the court will have wide leeway in drawing the line between abuse and reasonable corporal punishment. No two judges are the same and may see the same thing differently. Reasonable minds may, and will often, disagree.

If you are dealing with allegations of abuse or neglect and need guidance and effective legal counsel, we will gladly be of assistance. Always trust your better judgment and recognize that any child punishment of a child must not be done out of anger. In the words of the American author and Unitarian minister Robert Fulgham, “All I Really Need to Know I Learned in Kindergarten”. Well said.

Matthew Poole is a Jackson, Mississippi family lawyer focused on case evaluation and domestic conflict management. He was admitted to the Mississippi Bar in July, 2004.