Archive for December, 2018

HAPPY HOLIDAYS TO EVERYONE…ESPECIALLY GRANDPARENTS

Saturday, December 29th, 2018

As the year 2018 comes to an end, it is appropriate and perhaps customary to reflect on the events and happenings of the past twelve months and look forward to the New Year to come. This may be especially true of the members of families who have experienced the difficulties of a divorce and custody matter where children are divided between households.

In my previous article we explored some generic ways that we can make this time of year a bit more joyful for everyone with a specific focus on our children. If you haven’t read it yet, please do so soon, and if you have read it, we hope that you appreciate the common sense suggestion (and legal benefits that accompany these issues) of “Be Nice” that it promotes. For all our future blog entries, you may automatically infer and assume that “be nice” is a given. In this short work we will attempt to expound on “be nice”, but with a more specific focus on our parents: the grandparents of our beloved children. They are often the most valuable asset to young ones.

Pursuant to Section 96-16-3 of the Mississippi Code, a grandparent may be allowed visitation when the grandparent shows a viable relationship with his or her grandchild has been established, visitation with the grandchild has been unreasonably denied, AND visitation is in the grandchild’s best interest. (Emphasis provided). The AND in that sentence is not at all suggestive or subtle: it is a mandate that all 3 elements are proven. A grandparent must show to the Court that these three factors, cumulatively, exist in their case, else any legal action taken may be fatally flawed. As always, these elements are considered on case by case basis and the terms are subject to the interpretation, and significant weight given to each, is in the discretion of each individual Chancellor. That said, consider the following:

The Mississippi laws include provisions for grandparents to seek legal relief regarding child custody and/or visitation. In fact, calls and email inquiries involving Holiday visitation for grandparents are becoming more and more frequent. Of course the specifics are as diverse as the spread of individual dinner tables; of course, but the central and prevailing question is almost always the same: How can I get Grandparent’s rights so that I can see my grandchildren during the Holidays? It’s a fair question that usually would be easily solved if the adults in the children’s lives would all heed our prior advice repeated above. But not everyone can or will simply “be nice”. Those instances may require legal action, to-wit:

WHAT IS A VIABLE RELATIONSHIP?

A viable relationship is difficult to define, but it is something more than a Birthday card and a text every now and then to say “how is school?” and “I wish you would come see us sometime”. Those gestures are nice and I encourage this type of contact. If you have this relationship with your grandchild, keep it up and good for you! If not, then maybe you should seek to incubate and nurture a relationship. (Those words are chosen intentionally so that you will approach this with “baby steps”). You can’t be fake, it can’t be forced and it cannot be for reasons other than the love of the child. A viable relationship with a child, or anyone for that matter, is none of those things.

This generation of parents is unfortunately forced to rely on neighbors and friends and, thankfully, grandparents, in the day-to-day business of child rearing. Parents work, kids participate in school and after school activities. This is all healthy and normal, and time consuming. The grandparents that participate in this juggling act/struggle are more likely to fair well in their efforts to have meaningful time with the kids. And if they must press this matter to Court then their efforts will always be a factor and should be rewarded. That is not to say that a “score-card” is being kept, or that one should be kept. Do what you can when you can. Financial support and assistance for your grandchildren is also considered, but that alone will not convince the Chancellor that a viable relationship exists.

Some are more able to participate because of their job or transportation or schedule flexibility or what have you, and some simply cannot do it. They should not be punished, right? Yet some grandparents are able but maybe not so willing to help out when the parents are in a pinch. It’s not as easy to discern who can and who can’t. It’s much easier to figure out who will and who won’t. And so grandpa, ask yourself: when asked to pick up the kids from school or from soccer practice, are you the one in the carpool line? How flexible are you to host the kids for the weekend if asked? Do you offer to keep the scout fees current?

Suffice it to say that a “viable relationship” with your grandchildren is not formed overnight – it’s formed and developed and molded over many nights, months and years. A viable relationship is developed through the sacrifice of time on the part of the grandparent who attends the ballet recital and the baseball games. Are you this grandparent? Or are you too busy to develop a viable relationship with your grandchildren? The good news is that it’s never too late to start.

HAVE I BEEN UNREASONABLY DENIED VISITATION?

A grandparent who lives across the street, across town, or even across the State has a better chance of proving this element than does the one who lives across the country. But again, there is no easy “one size fits all” answer to this query.

Most grandparents would say that ANY denial of a request for visitation with the grandkids is in and of itself unreasonable. But we must assent to factors of the day such as school duties (homework, tests, etc) clubs and activities, or maybe a friend’s birthday party or a planned trip to the water park. In other words, are the requests for visitation interfering with some other important event? If it is, then perhaps the denial is not unreasonable after all. Furthermore, if the request for visitation includes extensive travel, it may simply be unreasonable to drive hundreds of miles for a few hours spent in front of the television with grandma. Perhaps a better question might be “Have I been unreasonably denied a reasonable request for visitation”? Whatever the situation and however geography, employment duties and other logistics play their parts, reasonable requests for visitation made by grandparents who have already formed a viable relationship should not be denied.

WHAT IS IN THE CHILD’S BEST INTERESTS?

This is the most important question for the Chancellor to ask and attempt to answer. I could (and very well may) write dozens of articles on this subject alone. This question is the polestar consideration for each and every case, as it should be. Ironically, we will spill the least amount of ink, as it were, on this third prong of the test after declaring it to be the most important.

Absent some extraordinary issues, we could all agree that time spent with the grandparents is consistent with our overall meaning of the phrase “best interests of the children”. To that end, parents reading this article should always want the best for their children and grandparents visitation, even if they are the parents of your ex, should be part of your routine whenever possible.

May God bless you and your family during this Holiday Season!!!

Matthew Poole is a Jackson, Mississippi lawyer who specializes in family law and domestic relations conflict resolution. Matthew was admitted to the Mississippi Bar Association in 2004 and was named Top 10 Family Lawyer in the State by the National Association of Family Attorneys in 2018.

Merry Christmas To Everyone…Especially Our Children

Tuesday, December 18th, 2018

My name is Michael Louvier, Law Clerk to Matthew Poole, Esq. At this time of the year, it seems appropriate to reflect on the past year, look forward to the New Year to come, 2019, and to be thankful for what we have today. I thank God everyday for my family, with whom He blesses me every day of my life. I thank God for the unconditional love that my wife and two children and I have for each other. I’m thankful for my parents, who have been married for 62 years, and who set the bar very high for my three siblings and I as parents and grandparents. I thank God for my sister and two brothers, all older than me, and all wiser, as it should be. Especially during this time of the year, when we celebrate the birth of our Savior, Jesus Christ, I thank God for the blessing of the multitude of children that He has brought into mine and my wife’s lives. So many children in our 32 years together, 28 years married and 25 years as parents. Nephew, nieces, and hundreds of children have enriched us as a family. They have all made us laugh, cry, celebrate, rejoice and pray, and our lives are much more complete knowing each child. We love them all and say those exact words to them anytime we can. Many are “all-grown-up” adults now, off of dad’s payroll, as it were. And some of these children are having children of their own. We are so proud to be invited to the Baptisms, birthday parties… I could go on and on and on, suffice it to say that my wife and I love children, all of them. And from that love came this article, to-wit

At this time of year it is also appropriate to try to keep the wants, needs and wishes of others in mind, especially our children. Gifts under the tree and good food, desserts and cider are always a wonderful way to spend Christmas. Gift giving, mistletoe and the like aside, making the Holiday Season better for you and yours is always a complicated matter. And so, regardless of your marital situation: married, separated, divorced, re-married, single parent…it really doesn’t matter. If you want to make this Season better for your family and your children more enjoyable and less stressful, I urge you to consider the following:

Whenever you are enjoying time with your family, especially your children, you should always be mindful of your alcohol consumption. If you are an everyday drinker, slow it down. No need to show everyone how much you can drink, it’s not a contest that you want to win anyway. If you are a social drinker, then be more social than drinker. If you rarely drink alcohol and the egg-nog is exceptional, then make sure you don’t overdo it. In short: Be responsible for yourself and be nice. It’s the Holiday Season so Be Sober and Be Nice.

For the split and co-mingled families that live apart and geography and logistics become a variable in this issue – one word of advice: COMMUNICATE. Without communication with your ex (or his mom or the new husband or his 19-year-old daughter, etc., this will be a problem. The more children involved the more difficult the logistics become and; therefore, the more vital COMMUNICATION becomes. Whomever you must coordinate with to make this a less than impossible task, make all plan for exchanges and travel and meeting places early. Attempt to agree on a “half-way point” that is well lit, has a bathroom and some refreshments and maybe even good food. Schedule an agreed to best time and place and stick to it. If you haven’t yet done this part and you are reading this, then you should be searching for the contact in your phone right now. And when you get them on the line, tell them to pull up this site and read this blog. (Do this now!) Travel for this purpose is stressful, potentially dangerous according to weather and other conditions, and potentially expensive. Remember to have the car gassed up and ready to go. Minimize the stress by being the clear voice of reason in the communication. Drive carefully always. If it’s an extended drive, make the ride more comfortable with pillows and blankets and a cooler of water and maybe some snacks and sandwiches. Don’t be in too much of a hurry, as accidents will never get you there sooner. Don’t allow your emotions and the overall vitriol for the “other family” to dictate the plan. Most of all remember that it’s all about the kids, not you. Let me repeat that: this whole plan is about your children, and not about you. Be Flexible, Be the adult….Be Nice.

School is out for everyone, and that is sometimes good news for the kids and the teachers (I thank God for our educators, too!), but not good news for working parents. During your extended Holiday visitation period, your child might have a friend that has some free time. Within your limits when factoring the job restraints, the financial realities and the geographical issues, you may want to ask your child if he would care to include a friend or two in some of your plans. And don’t simply pick them up and go back to your place for some riveting television watching. Go somewhere! Do things! Go to the mall, the movie, museum, Chinese buffet, burger joint, ice-cream shoppe. You get it? Good, now do it! No matter where you live, there is always something to do in your area that is fun and exciting and sometimes even free. If all else fails, order a pizza and rent a good movie. Just don’t be a dud, Dad.

There is a growing debate about limiting access to social media during visits. There is no easy answer except to suggest that your child should feel comfortable to be online, but that she, too, should be aware of your time and your plans, etc. Just because I suggest that it’s all about them is not to be misinterpreted as it’s ALL about them. Kids used to have to drive away in a car to be miles away from you, now they can be sitting next to you on the couch, iphone in hand, and be on a completely different planet than you. By the same token, they can be hundreds of miles away from you and you can be talking to each other as if you were in the same room. Use this Holiday time as an opportunity to enhance your relationship and let social media assist you instead of letting it be a point of contention.

Our previous blog entry “Are you smarter than a 5th grader” could suggest that the higher the grade your child is in, the least likely you are to have any clue about the math and foreign language and almost all other subjects that they take. Get involved in your child’s everyday academic life before they understand how much of it that you don’t understand. Ask your student to share their required reading with you (now you have something to read, mom!) and this will immediately become a topic of conversation between the two of you.

My point in this article is clear: Be good to your children, especially in this Holiday Season. This is the time of year that we celebrate the birth of our Savior, the Son of God, Jesus Christ.

My prayer: Thank You, Lord, for blessing us with these many children in our lives. Let all those parents and others that read this article to gain some guidance from You, humbly, through me. Amen.


Michael Louvier, B.A. (University of New Orleans), J.D. (Mississippi College School of Law) is the primary clerk to Attorney Matthew Poole. He has two decades of legal experience and is the father of three.

ARE DADS STILL THE UNDERDOG IN A CUSTODY BATTLE?

Monday, December 10th, 2018

Let’s face it: Fathers who are “fighting” for custody of their children start out with the figurative “one hand tied behind their back”. But in the past decade or more, great progress has been made to allow for a more level playing field. Let’s briefly explore this subject and, hopefully, shed some positive light on this complicated issue.

I am not hesitant to use the phrase “custody battle”, but many times that is the best description of what this type of court case is, or becomes. Many cases might begin with the parents declaring to each other, their lawyers, their families, and most importantly their children, that they only want what’s best for the children. Some parents even try to adhere to this promise. But all too often the proceedings drag on and frustrations set in and what began as a “cordial” case turns into just what we didn’t want or expect: a Battle.

Fighting it out with your ex often becomes the only way to assert your rights regarding everything, including the custody and visitation of your children; unfortunately, the fight itself almost always makes the dad out to be the bad guy. That is, those dads who refuse to accept the “standard visitation” schedule of every other weekend and an extra day or two sprinkled throughout the month are classified as “combative” or hard-to-deal with. The old-fashioned mindset was: How selfish! Those guys are only thinking of themselves and aren’t putting the kids first, some might say. *A personal note: If someone suggested that I was only allowed to see my kids every other weekend as they grew up, there would be more than a battle to ensue – there may have been a pair of handcuffs involved in that conversation. Thankfully, the mindset in this area is more open to the ideas of “Joint Custody” and “Shared Custody” and other forms of co-parenting scheduling plans that include and facilitate the involvement of BOTH PARENTS, not simply more time with mom and less with dad. Of course, when mindsets change, the laws and court decisions follow suit, and that is encouraging.

There are several factors that each parent must consider when they are “battling” for custodial periods of time with your child. For example: always keep in mind the time constraints of your employment when you fight for the extra week-day. If you agree to, or are awarded by the Court, every Wednesday, but you must work until 6:00pm and you are unable to pick up your child from school, then what have you really gained? Geography and logistics must be considered, as well. Same scenario: Dad is awarded Wednesday and he must return the child to school on Thursday morning; however, he lives more than an hour away! The return trip to school must begin at 5:00 a.m. or earlier. Is this a victory for Dad? Is it a good situation for the child? Finances play a part (of course) as does the support system in place for each separated parent. Can Dad afford to take time off work for the extra time? And after this somewhat lengthy discussion, we have yet to mention the child’s wishes and needs. I believe it is safe to say that no loving parent – regardless of any other factor – would choose a custodial period with the child that interfered with an activity that is important to the child. Dads forced with this decision almost always defer to the wishes of the child. This becomes a sword that cuts both ways: now Mom and her legal team can suggest to the Court that Dad doesn’t want extra time.

The Conclusion, if there is to be one in this brief overview of an extremely complex issue, is that Father’s involved in a Divorce proceeding should take great care in avoiding the pitfalls of a “custody battle”. Consider the cost of “winning”. Who benefits? Who loses? Is there any common ground that should be explored? Has reasonableness been abandoned? And finally, but most importantly, what schedule and situation is best for the child?

Maximum involvement of both parents in the upbringing of the child(ren) should be the desired outcome in any case. In more and more jurisdictions, this is the presumption of what is in the best interests of the child. Father’s more and more are being considered “equal” parents. I see this trend as a good one – for Dads and for their children.

Matthew Poole is a Jackson, Mississippi family attorney specializing in domestic conflict resolution. He was selected as a 2018 top 10 family lawyer by the National Association of Family Attorneys.

ARE YOU SMARTER THAN…..

Wednesday, December 5th, 2018

Do you remember the popular television game show “Are you smarter than a 5th grader? The host, comedian Jeff Foxworthy, would ask an adult contestant general 5th grade appropriate questions. The more correct answers given, the more “cash and prizes” the adult would win. It was a fun show to watch, especially when the contestant would get an “easy one” wrong; fun for everyone except of course, the contestant.

Your family court dispute is certainly more important than a television game show, and so I will refrain from any “Family Feud” references. But the premise of the game show and your court case is very similar: correct answers are the key to you to winning, while wrong answers can always cause you to lose. With that in mind, let’s discuss the strategy of your case so that you will be able to answer the questions correctly and win the “cash and prizes” that are at stake in your case.

Preparation is the always the key. Gathering your relevant information, anticipating the strengths and weaknesses of your case (as well as your opponent’s), and familiarizing yourself with the process are the steps that the wise litigants take. Listed here are some of the more common steps to this process that you may prepare for, and doing so may make you a better “contestant”, and may save you some money along the way.

Initial questions from your attorney, both before and after you retain his services:

This is an often undervalued or overlooked part of the process; however, wrong answers at this early stage of your case can torpedo the entire effort. Moreover, the questions that are left unasked, either by the client to his attorney or visa versa may leave some of the more important information uncovered. You know your case better than anyone, and so it certainly makes sense for you to prepare for this meeting. Most lawyers have standard intake questionnaires” that are used for the basic information.

Written questions called interrogatories:

This can be very expensive, especially if you are not willing or able to assist your legal team. Its best to have the financials, tax returns and bank records ready when you first meet with your attorney, as this information is almost always going to be needed. Bottom line: the more you can help your attorney with this process, the more familiar you will be with the legal “game”. Be thorough and prompt when you are asked to provide these answers and information.

Demands for your information:

This includes your tax information, banking information, employment information, medical information, social media information, cellular activity, and , any and all other information that is exclusive to you. (YES, they are going to ask these questions, and they are entitled to the answers and information!).

These “questions” are most often asked by Subpoena Duces Tecum issued by the Court and served on either you, or your CPA, your employer, your cellular provider, your medical provider…you get the point. Properly issued subpoenas are honored by the recipient and your private information is certainly in play in this very high stakes game. Beware: social media posts are also fair game. You should always consider that whatever you post might be read by your mom, your priest, or worse: your opponent’s attorney!

Oral questions asked at a deposition:

Deposition subpoenas can be issued for you, or for anyone else who may have information useful to the case (witnesses). Not every case will employ this measure, but there are some things that you should be aware of if you are deposed. Consider a deposition as a practice run for trial. This process, much like the interrogatories, can be very costly simply due its the time-consuming nature. The wise participant prepares himself with his attorney. One helpful tip: Listen to the questions asked and answer it. Added information or expounded upon answers can help the other lawyer.

Oral questions asked at Trial or Hearings in your case:

All of the situations described, above, take place outside of the precence of the ultimate decision maker of your case. Any time the trier-of-fact (most commonly referred to as “the Judge”) is involved with the process, your answers must be correct. The trial portion is usually the end of the case and so these answers are the “Final Jeopardy” of the case. Inconsistent information in any facet of this process will make all of the answers wrong. That’s right: even correct answers at the end of the process, if preceded by a different (not necessarily wrong) response to the same question at an earlier stage in the case, can often prove very costly to the respondent. If the Judge believes you to be untrustworthy, dishonest, without credibility, or even just insincere or cavalier with your answers at trial, you have probably ruined your chances to have your case end successfully.

The best and often most successful contestants, both on the game show and in a legal proceeding are the ones who are best prepared. Any litigant, no matter the issue or type of legal dispute he is involved in, is more likely to satisfied with the results of the action if he is more prepared than his opponent. Therefore, the well prepared litigant in a family law case IS smarter than a 5th grader and the “cash and prizes” are more likely to be awarded to him in the end.

Matthew Poole is an award winning top 10 family lawyer and practices in Jackson, Mississippi. He has managed domestic cases in over 90% of the court districts in Mississippi over a 15 year period.