Archive for October, 2018

Are Legal Child Guardians (Guardians ad Litem) Still Relevant?

Tuesday, October 16th, 2018

Once upon a time, Chancellors in Mississippi relied heavily on child legal guardians to make recommendations as to the best interests of minors subject to litigation in their respective districts. Although it has always been clear that Mississippi statute mandates the appointment of a guardian ad litem (guardian at law, latin derivation, or simply G.A.L.), in certain scenarios, such as those involving abuse, neglect, or adoption, and termination of parental rights, chancellors also often relied on these appointees to perform much of the fact finding in custody/visitation cases. After a recent appellate court decision, child guardian’s roles in custody matters has been significantly diminished and minimized in legal domestic proceedings.

In the current context, G.A.L’s have enjoyed, up until recently, broad discretion in making custody recommendations to the presiding judge in the cases to which they were assigned. However, after a recent Mississippi Court of Appeals Court ruling, much of their sway has been eliminated due to the evidentiary rule precluding hearsay testimony. I once heard a very experienced lawyer in 2008 argue against the appointment of a child guardian because, as he put it, they are simply a ”conduit for hearsay”. It seems he was ahead of the curve and that his opinion is now broadly reflected in Mississippi jurisprudence. When and if a chancery judge disagreed with a custody placement recommendation by a child guardian, they have to go through additional rigor and explanation in order to cement their reasoning for such disparity. It rarely occurs. Such is often grounds for appeal, and often well-placed.

At any rate, it is important to understand the basis for hearsay objection in order to recognize the basis for our recent shift in law and the effect it has had on the role of child guardians. Hearsay is defined as “A statement other than one made by the declarant while testifying at a trial or hearing offered into evidence to prove the truth of the matter asserted”, (Black’s Law Dictionary, 2008 as amended). McCormick on Evidence has a more complex definition, but for our purposes it is in essence a distraction from the broader concept. Sounds simple enough, but combined with over a dozen exceptions and exceptions to those exceptions, it can get tricky pretty fast. So, the short of hearsay exceptions as they pertain to child custody matters is that few practically apply, therefore what the child has TOLD his or her court appointed guardian is more likely than not inadmissible in a court proceeding.

So, child guardians are a thing of the past? Not exactly. Although they have reduced roles in custody matters, guardians have been largely privy to adjust their reporting to the court and issue appearance subpoenas for those with firsthand knowledge of the matters at hand. Essentially, costs just went up for the parties who request the intervention of a fact-finder and guardian due to increased complexity in commanding witnesses to court. Their statements, as well as those of the children, are certainly scrutinized by virtue of this seeming “crackdown” on out-of-court statements offered as evidence.

In the “good old days” as I call them, hearsay rules seemed to have limited, if any application to child guardians in custody proceedings. (As a side note, when I used to reference the “good old days”, a former clerk would quickly remind me, “Matt, give it a few years, you’ll be saying that these were the good old days”…..well put. Now, under enhanced scrutiny from both state appellate courts and constitutional principles, not to mention adherence to the strict rules of codified evidence, hearsay will likely be held out of custody proceedings unless a clear exception is applicable. Gone are the days of playing fast and loose with evidentiary truisms. Although it is not clear what the future holds in child custody litigation, it is obvious that we are on a path toward appreciable adherence to the simple rules as codified by the rules of civil procedure and of evidence. Back to square one it seems.

If you are involved in custody litigation and would like a fresh, second opinion as to your best path forward, feel free to contact us anytime.

Matthew Poole is a Jackson, Mississippi custody and divorce attorney who has taken several hundred domestic matters to trial. He is a 2001 Second Century Scholar and Finalist of the Steen, Reynolds, Dalehite Trial Competition at the University of Mississippi School of Law.

Free Custody Lawyers to be Legally Mandated Soon? Time Will Tell

Thursday, October 11th, 2018

Interestingly, government has been increasingly involved in not only health care, but in matters normally centered in private markets such as law and legal rights. After the nationalization of healthcare, is it possible that the federal government will step into the legal realm and pay for an attorney when fundamental rights (like the right to be a parent) are involved? What evidence is there that we are heading in that direction? I would suggest that we are already taking baby steps toward a higher level of government fiscal involvement in domestic law. Here is a synopsis of my thoughts on point.

Law 101 makes clear that indigent criminal defendants have the right to free counsel if they are faced with penalty of a minimum of one year of incarceration. Indigency is defined by local rules but is largely derived from the precept of ability to pay an attorney, even if income is substantial. In what I would call a “quasi-criminal” area or domestic law, the government of the State of Mississippi provides a no-cost lawyer for those charged with abuse and/or neglect of a minor in their care during youth court proceedings. Interestingly, this dynamic is not entirely askew from a criminal scenario wherein the government both prosecutes and defends an indigent criminal defendant.

This recent development of providing a parent advocate to an indigent charged with abuse/neglect in youth court seems to signify a shift toward government-provided representation in matters that involve what would be deemed fundamental rights, such as the right to be a parent. Other fundamental rights would include those contained in the first 10 amendments to the U.S. Constitution (also known as the bill of rights), as well as rights which flow from the due process provisions included in the 14th Amendment to the U.S. Constitution.

The youth court parent advocacy program and the provision for free representation in these matters begs another question altogether; why do we not provide a free attorney for a person who is alleged to have abused/neglected in a chancery court proceeding? Why the distinction just because of the forum? I must admit, there is no logical answer that I can fathom.

Shifting gears somewhat, I have also asked myself and my colleagues why we do not provide an indigent contempt defendant (usually someone far behind on support or alimony, or both) with free counsel. These defendants are nearly always thrown into jail until the entire delinquency is erased. Is this scenario not tantamount to the provisions in the criminal context allowing for the appointment of a no-cost public defender? It seems to me that this presents a distinction without any real difference. The lines are certainly blurry at best.

Without being too lucid about my underlying thoughts, it is very clear that we have set up some arbitrary, even capricious standards as to who gets a free attorney when, why, and how. We have taken some steps away from requiring litigants to follow the “American Rule” (yes it really is called that) wherein people must pay for their own attorneys, as opposed to the “English Rule” wherein the loser pays all legal costs. It may not happen during my career, but I expect that in the near future, the government will provide no-cost lawyers in matters that involve fundamental rights and even those such as contempt where incarceration is a real possibility.

Matthew Poole is a Jackson, Mississippi family lawyer with 15 years of litigation experience. He has managed over 1,200 domestic matters since 2004.

Are Demands for Joint Child Custody Legitimate? Less Often Than You May Think

Saturday, October 6th, 2018

First, I would like to suggest that anyone reading this go back to the prior post that relates quite directly to this topic. In short, that post essentially is an exploration as to the risks and rewards of children sharing near-equal time with both parents. There has been significant debate on the question of whether our court mandated restrictions on joint physical child custody is helpful or hurtful to innocent lives.

It is more than remotely possible that we will soon see legislation which attempts to level the playing field for non-custodial parents. As such, there is an entirely different lens by which to consider requests for joint custody; ask yourself, is it often being used as a tool to avoid child support obligations? My answer is an unequivocal YES.

At my office, a common topic of conversation revolves around what it means to be an ideal client. We receive possibly in excess of 10 calls per month that start the same way. “Mr. Poole, I want joint custody of my child”. I always make sure to attempt quickly ascertaining whether the caller, by and large the father, truly can and does have the motivation to seek joint physical custody. More often than not, these callers are delinquent in child support and will do just about anything to lessen their loads. These are not ideal clients for a single father like myself….not even close.

We love nothing more than fighting for the ideal parent, whose sole motivation is derived from love for their kids. Often, fathers are properly motivated and well-intentioned, but unfortunately this is not always the case. An ideal client is first an ideal parent. Seems simple enough, right? Never forget that, as noted in our previous article a parent will almost never be granted true equal custody. Standard visitation is the law of the land with a few notable exceptions, most often being agreement or preclusion based on employment obligations.

What can we learn here? A few couple of things stand out to me. First, non-custodial parents are often not motivated by the right things. Secondly, there would not be such a huge amount of domestic litigation if everyone were reasonable. Kids are expensive, and mom and dad need to partner for the sake of their little ones. Avoiding payment of support is the oldest trick in the book, but a fair result is always possible. Unfortunately for a parent who is ill-motivated, they can and will be easily exposed.

Matthew Poole is a Jackson, MS family lawyer focused on results in challenging custody and divorce matters. He is a 2001 Millsaps Second Century Scholar and Finalist of Steen Reynolds, and Dalehite Trial Competition.