Archive for February, 2019

MODIFICATION OF CHILD CUSTODY

Wednesday, February 27th, 2019

As stated in my previous post, I will now delve into one of the more serious topics of that Family Lawyers deal with regularly: Modification of Child Custody.

In order to obtain a custody modification, the non-custodial party, i.e, the party who does not have custody of the child, is required to prove that there has been a substantial change in circumstances affecting the child, that the change adversely affects the child’s welfare, and that a change of custody is in the best interest of the child. There are several factors/considerations a court will weigh in determining what is in the best interest of the child. The following article is a brief examination of the principles set forth above.

Let me clarify a few things, first: there are two (2) separate and distinct aspects to the subject of child custody:

  1. Legal custody,
  2. Primary physical custody.

Legal custody of a child is most often shared between parents, or more accurately stated, “Joint legal custody” is the more common award of the Chancery Court. In short, this indicates that neither parent has more or less “standing” than the other to inquire with the child’s teachers, seek medical assistance for the, child, discipline the child, etc. Shared legal custody basically indicates that mom is still mom and dad is still day, regardless of the other legal factors affecting the life of the minor child and his parents.

At the law office of Matthew S. Poole, we often encourage our clients to agree to shared legal custody, as it is often the best outcome and in the best interests of the child. Of course, there is much more to that facet of the topic concerning legal custody; but for the most, that’s the easy part of this discussion.

Now to the more commonly referred to aspect of custody: Primary Physical custody. W hen people call us at the law office of Matthew S. Poole and complain that they are seeking a change of custody, we understand that they are more than likely referring to primary physical custody. They are unhappy with the current situation and want it changed. Some callers even declare that the current situation is so terrible that it’s an emergency. Much more often than not, no emergency exists.

After the Chancery Court has granted primary custody to one parent over the other, modifying this Court Orders

There are 3 elements to the onset of a Custody modification matter:

First: There must be a material change in the current circumstances of the child since the time of the Order. The change must be “material” or “substantial” in nature. And contrary to popular belief, the fact that the child turned 12 is NOT, taken independently, a material change. Moreover, the material change (or changes) that have occurred should not have been easily anticipated at the time of the initial award of primary custody. The change or changes can be one significant event (perhaps one that even created an emergency situation), or a series of acts, actions, or episodes that, when taken as a whole, create or culminate into this material change.

Second: Those material changes must be deemed as adverse to the child. That is; the change in circumstances must be detrimental to the best interests of the child. Once again, contrary to popular belief, the custodial parent re-marrying is not, in and of itself, automatically bad for the child. Although it is typical human nature to resist and prevent it, change itself is not always bad. N fact, sometimes a change is both bad and good. Left old school and friends is bad…new school has better facilities or is closer to home is good. So, before you call a change in circumstances adverse, take a closer look. A final thought about the adverse nature of the change: remember that this new situation

Third: The decision by the Court that a change of the primary physical custody is the proper remedy to the adverse changes. Therefore, as the non-custodial parent who seeks modification you clear the first two hurdles, and that simply triggers the Court to make a new determination of what custodial/visitation set-up will now best benefit the child.

The best interests of the children should have been determined prior to first award of custody, whether agree to by parties or adjudged by Chancellor. If the parents who are going through a divorce come to an agreement regarding the primary custody of their children, we should certainly hope and even expect that they did so by taking into account all of the specifics surrounding their lives and then coming up with the solution that was best for the children. To do otherwise is unthinkable. Likewise, the reasoning used by the Court in Mississippi, commonly referred to as an Albright analysis, is mandatory before a custodial decision can be made. It is this pre-requisite that makes it often very difficult to convince the Court to modify the primary physical custody of a child…as it should be.

The Albright factors will be examined and analyzed in more detail in my next installment, and I hope that you will log on and read it.

Michael Louvier is a graduate of Mississippi College School of Law (1994). He has been married for 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20).

Messy Divorces: A Few Tips and One BIG Key

Thursday, February 21st, 2019

Most people seeking divorce are surprised at the complexity and cost associated, particularly when assets and child custody issues are hotly contested. One thing I have learned in 15 years and 1,300-ish domestic cases later is that clients will either be an asset for fair resolution or they will get in their own way to the extent of holding up a fair and final resolution for them and their children. My goal here is to help you the former and avoid being the later……even if the advice isn’t exactly what you wanted to hear.

Let’s start by starting some fairly obvious things you may need to be reminded of. First, never forget that marriage is a partnership, and our state begins any divorce with the notion that what is yours is his and vice versa. It is not to far different than a business partnership for the purposes of our discussion.

Secondly, Chancery Court judges do not value a litigant who comes across as angry, vindictive, or belligerent. To put it lightly, your testimony will be tainted as long as those attitudes persist. Coming across as the nice person you hopefully are will go further than you might think. A courtroom will never be a sparring match where overt aggression is effective, although there is a time and place for heavy-handed techniques. Trust your lawyer and avoid being the bad cop.

Third, do not assume that the court is familiar with every facet of your case. Specific evidence, be it documentation, witness testimony, an object, even your own diary need to be presented in a clean, thorough and articulate manner or expect that they are unknown to the judge. Keep in mind, hundreds of cases are on their docket at any given time.

Now the biggest and best for last. This tip is so important and also the most overlooked, largely because it is so very counter intuitive on its face. This tip is rooted deeply in basic human psychology, difficult to carry out, and may even require a degree of acting on your part.

So here it is after much adieu……..NEVER, EVER let your spouse know how badly you want out. They will expect you to give up more and take less. They will smell blood in the water and become a shark. Avoid this trap and you won’t have to “buy” your way out of an unhappy marriage. This is tough to execute, but trust me, it works.

Matthew Poole General Biography, 2019

Matthew has lived in the Jackson area since 1989 and is an honors graduate of Jackson Preparatory School, Millsaps College Political Science Department as the recipient of the Second Century Scholarship, and the University of Mississippi School of Law. At Ole Miss, he was named Finalist of the Steen, Reynolds, and Dalehite Trial Competition in 2003.

He began his legal career at the Mississippi Attorney General’s Office in 2004 after graduating from Ole Miss Law and served in the executive division as a policy advisor to Jim Hood and assisted in formulating Department of Human Services practices and procedure as well as administrative procedures in the areas of civil and insurance related litigation.

After leaving government service, he spent 2004 and 2005 serving as associate trial counsel at Wilkins, Stephen’s and Tipton and represented Medical Assurance Corporation, G.E. Medical Protective Corporation, Merck Pharmaceuticals, and GlaxoSmithKline Corporation.

Matthew opened his domestic litigation practice in 2005 and has taken over 300 domestic cases through final trial. He has been named a Top Ten Mississippi Domestic Attorney twice since 2014. He has been honored to serve as Justice at the Mississippi College School of Law’s annual Copeland Cook Taylor and Bush Moot Court Competition on several occasions.

Matthew has a nine year old son, Lucas, and is particularly focused on custody matters and modifications as well as contempt issues that are associated with them. He is passionate in advocacy for single parents and children who are the victims of abuse and neglect.

Beware of the Third Adult

Wednesday, February 13th, 2019

Divorce is never easy. This could be the “Captain Obvious” statement of the year. No one ever gets married thinking “the divorce from this person will be painless.” Of course not-people don’t get married with the thought going into it that divorce is inevitable. In fact, there are several clients at the Matthew S. Poole law firm that have declared Pre-Nuptial agreement was not contemplated prior to marriage because the dissolution of the marriage was unthinkable. “No way will we ever be divorced!” Sound familiar? Of course it does. You and I either are those people or we know people who come to mind immediately. And so I will repeat myself: Divorce is never easy.

No matter the reason for the divorce, there is always a recovery period for each party. Often times an ex-husband busies himself with his work, or an ex-wife occupies her time with the kids, perhaps one moves away to be closer to their family, or takes a new job. Personal feelings change and may also stay stagnant as life moves on ever so constantly. Everything is fine…until that fateful day that the ex meets that new someone else. I’ll call them the “third adult”.

As the title of this article suggests, I am not a proponent of the third adult in terms of the impact on children. I am also not a big fan of the forth adult. They are the people who make a family lawyer’s practice thrive. They are the new love, the new “voice of reason”, at least hopefully. The third and forth adults in this equation are the new people that one meets and begin a new and, hopefully, lasting relationship with. And they always have a different agenda than yours of just a few short years ago. That is, the new love interest comes into your life and, more importantly, the lives of your children, with a new and different set of priorities. BEWARE.

Beware does not mean steer-clear forever, but proceeding with caution. Beware from this writer’s point of view does not mean that meeting someone new and falling in love and starting fresh is inherently bad. Beware means please keep in mind the best interests of your children, as the new person in your life may not have adhere to these same priorities. All of a sudden there are yours, mine, ours, his, theirs, etc…. the already disjointed family dynamic takes on a whole new twist. Invariably what may have been an uncomfortable, awkward and time consuming holiday transfer of the children can become an all-out “battle royale” to determine at whose house Santa actually comes. Summer vacations become a contest instead of a relaxing time.

Your new significant other may not appreciate your child support obligation as a legal mandate. They may want to spend that “wasted money” on a new car. Your budget may not allow for all things that everyone wants and needs, and it’s always easier to appease the voice that is closest to your ear. Don’t fall into this trap! Not only is it the beginning of the next round of Contempt filings in Court, but it is not fair to your kids. Be cognizant of your children, their needs, and your legal and moral obligations to them. Also, your ex is the parent of you children and, in most cases, is not your enemy. Your divorce notwithstanding, you have a common goal: to raise your children to be happy (as happy as they can be)…to become well adjusted adults who thrive in their own lives, despite your own shortcomings. Don’t allow the new person in your life to negatively impact your role.

Let me now take a bit of the sting off of the harsh realities presented here. So far, all that I have stated is that the new person in your life is no good, all bad, not welcomed. Please understand that I am not at all suggesting that people who are divorced should not seek to find love and happiness in their lives. Nothing could be further from the truth. Happiness is (or should be) the ultimate goal for all of us. In fact, my children would both readily tell you that my only wish for them in their lives is for them to be happy. (Full disclosure: I am thrilled that my daughter is happy living in Denver, Colorado, despite the fact that it makes me quite unhappy that she lives so far away and I only get to see her twice a year…the fact is that her happiness is not contingent on my happiness.) I am, therefore, urging you parents of broken families to simply consider your children, and their happiness, before you put your own wants and needs, and especially the wants and needs of your new love intetests, at the forefront.

This article is meant to warn you against placing new priorities, because of new people in your life, where they are not proper. The theme of this article is consistent with my other offerings: keep the welfare, best interests and overall protection of your children as your top priorities, no matter in what new situation you find yourself. To do otherwise is, by definition, contrary to the best interests of your children. The law always values and encourages parental involvement and the bonds that come from interpersonal ties, as it should.

I will make clear to include more subtle points of law in my next addition and I hope you will read as I expound on this subject: Child Custody Modification.

Michael Louvier: B.S. University of New Orleans (1988), J.D. Mississippi College School of Law (1994)

My Ex and my children have moved to another State! What can I do?

Monday, February 4th, 2019

At the law office of Matthew Poole we have been fielding more and more “out of State” calls. These are contacts to us either by phone or by email about a multi State custody issue. The contact is more and more often initiated by a non-custodial parent who is now struggling to enforce his/her visitation after some serious geography has become involved. Either the Ex has moved to Mississippi, or away from Mississippi – with the children. No matter the reason for the move, or even which party moved, the schedule of “every other weekend, etc…” is now impossible. This new situation begs the obvious question: What can I do about this??

When divorced parents continue to live in the same area, the logistics of the exchange of children, the scheduling of ball games and dance recitals and everything else that goes with the day-to-day joys and “difficulties” of your kids is easily worked out. Although these parents might feel awkward and uncomfortable, it is just easier to get things done for the kids. After all – the “best interests of the children” is always the target, right? Mix a few hundred miles of highway between the houses and this delicate balance goes from a bit unpleasant and compromising to unworkable and unfair. Unfair to whom, you ask? This is unfair to everyone, especially the children. Keep in mind that the travel to and from house to house is endured by the kids, too. And the farther away from the non-custodial parent they move, the more difficult and tedious this issue becomes. A disruption of their plans and favorite activities is never a pleasant subject to broach, also. So keep these delicate subjects in mind when you are attempting to come up with a viable solution.

All of these different problems and headaches and obstacles to a simple issue: I just want to see my kids! Is there a solution? The short answer is YES – Always. When a schedule of visitation is no longer workable, and the parents cannot come to an agreement or a meeting of the minds, the Courts are available for a modification. Remember that your rights as a parent are NOT diminished by the distance between you and your children. In fact, the Constitution of the United States guarantees a parent’s rights, and the protection of those rights. These rights are defined as fundamental rights; that is, the most protected of all rights. See Santosky v. Kramer, 455 U.S. 745 (1982). What this really means to you, the non-custodial parent, is that any decrease in your visitation should be viewed as more than simply “not good for me and my kids”…it is viewed as Unconstitutional!

The Mississippi Chancery Courts are referred to as the “super-guardians” of the children involved in cases that they handle. That is: the Chancellor must put the protection and best interests of the children as a paramount standard. And it is without debate courts hold that maximum involvement of both parents is consistent with the “best interests of the children” policy. With these tenets in mind, it stands to reason that a reduction in visitation because of the re-location of either parent would be inherently contrary to the best interest of the children. Protect your rights – cherish and protect your relationship with your children – and doing may very well mean that you have to go back to Court. Extended holiday periods, travel expenses, or even a true modification of custody are all issues that are on the table after a move of parent/children.

My next article will open yet another can of worms common to the subject of child custody/visitation: the introduction of the “Third adult”. I hope that you will log in to read that one, too.

Michael Louvier is a graduate of Mississippi College School of Law (1994). He has been married for 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20).