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

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

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

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.

Time to Re-Examine Joint Custody Arrangements? National Parent’s Organization Says So

September 25th, 2018

Note: This post is not an endorsement or critique of the National Parent’s Organization, merely an observation and analysis of their position as to the impact of standard (limited) visitation on young lives.

The bulk of Mississippi Chancery Court judges are what practicing attorneys deem “standard visitation judges”. What, in fact, does this term refer to? To state it very bluntly, it signifies that one parent involved in a custody dispute is going to get the short end (very short) of the stick: time to spend with their own children. Although it is not common that separated parents live closely to one another to equally “split the baby”– sometimes this is the case, but one parent (dad, most frequently) is cut out of the bulk of involvement with their own kids. Does this make sense for everyone? Is this reliance on “standard visitation” truly in the best interests of the children who are impacted? The research on point seems to indicate that children suffer from such limitations in sharing near equivalent time with both mom and dad.

Although I confess that The National Parent’s Organization was, until running across the research in question, foreign to me, I will say that they make a valid point insofar that children actually do benefit from what more closely resembles joint custody. In Mississippi, joint custody is presumably in the best interests of children only when parents agree to it. Very seldom, if ever, have I seen a Chancery judge award close to “equal time” with both parents. Is this due to an antiquated thinking, steeped in the belief that children need consistency above all else? It is certainly subject to debate, if nothing more.

In a recent article that appeared on Foxnews.com, a professor Emeritus from Ohio State University, Donald Hubin, Ph.D, postulated that children are disrupted by standard visitation arrangements, which for all practical purposes are in fact, limited visitation schedules. Without expressing my humble opinion too frankly, some of the opinions Mr. Hubin presents are deserving of consideration.

Citing a recent study by the National Parents Organization, Hubin asserts that “The best research on the well-being of children when parents live apart shows that children typically do best when they enjoy substantially equal time in the care of each of their parents”. Further, he states that they do “much better” than children raised in sole-custody situations. Definitely food for thought.

In essence, the thrust of Mr. Hubin’s position is that children are better-suited to have involvement of both parents in their day-to-day activities; doing homework, getting ready for school, extracurricular functions, and the list goes on as such. His conclusion, based upon the “parenting plans” implemented in Ohio’s 88 counties, is that the courts are failing to adequately consider the value of co-parenting on a nearly equal basis. (The article title pretty well sums up his position, “Divorce is hard enough on children–why are our courts making it worse?). The last line of the article simply states, “Our children deserve better”. It is difficult to ignore the power in this simplicity.

In closing, it is clear that some of the thinking that drives child-custody judicial policy needs careful consideration and the ability to strip away preconceived notions that are rooted in tradition more so than logic and reason. While there are never simple answers to complex domestic issues involving children, it remains clear that putting self-interest to the side is often the key to a child’s ability to thrive. Hurt feelings are a given after a tough break-up. I would suggest that anyone going through a custody dispute fully consider shelving all animosity that they have toward the other parent. Even though they may deserve your scorn, your children do not. Consider co-parenting for the sake of your children. They will thank you for it later in life.

Matthew Poole is a Jackson, Mississippi Family Lawyer with 15 years of trial experience. He lives in Northeast Jackson with his 8 year old son, Lucas.

The Best Child Custody Lawyers Get This One Thing: Attitude is Everything

September 18th, 2018

Never forget that taking a child custody lawsuit to trial is no easy task. It is not outside of the realm of possibility that it could take a year or more, a large amount of money, not to mention many sleepless nights. Not only can close cases be lost with the slightest missteps, relatively strong cases on facts, witness testimony, and documentation can be thrown away as well.

Sometimes what may seem to be a relatively simple win can become stretched into a very prolonged battle. So what gives? Is there a secret to improving your outcome when lifelong implications hang in the balance? Probably not, but unequivocally clients must understand that they only have a brief few minutes for judge to form an initial impression of them, and more importantly, their parenting.

Preparing a client for trial is never an easy task, but without question it can be relatively straightforward when a client is ready to tamp down their level of emotion. It is normal to be upset when your own flesh and blood are torn between you and the “other” parent. I will state that most Chancery Court judges can read you more readily than you realize. They are experts in lie-detection, human intention, and a myriad of other factors that will dictate the outcome of your case. Being honest and forthcoming, including admitting your flaws within reason can be very effective. The judge already knows you aren’t perfect.

We have discussed this general topic from various angles umpteen times through the years, and the repetition is intentional. Let me say clearly: no matter how strong your evidence may be, your demeanor while testifying is just as important in the eyes of the court. It is far too easy to hurt a would-be winner with a bad attitude, pettiness, greed, and anger. Stay cool, calm, even unshakable in the face of the opposing attorneys cross-examination– and trust me, it may seem brutal. Calm goes a long way.

Lastly, but not least, remember that Chancery Court judges are not concerned as much about your difficulties as they are of a child within their jurisdiction. They are the innocent victims. Be sure to keep testimony focused on the children. It is easy to get distracted, but can be avoided with proper preparation. I have had clients and opposing parties indicate extreme panic on the stand. Those scenarios present what I would call horrible optics for the court. Thankfully those cases are relatively few and far between.

If you need guidance in a child custody suit, we are prepared to extract the best results under your unique circumstances. And remember, attitude is everything.

Matthew Poole is a Jackson, Mississippi divorce and child custody attorney and proud father to his 8 year old son, Lucas.

Getting Child Custody Right the First Time: The Tough Road to Modification

September 11th, 2018

The stress of divorce or separation when children are a product of a tumultuous relationship can be nefarious to good decision making on so many levels. It is perfectly understandable that people tend to self-preserve when they are under the tremendous pressure of suddenly paying for separate households, attorney fees, and formerly shared expenses. As one retiring Chancellor in Rankin County used to say, wisely I may add, that “two can live cheaper than one”. I surmise that emotional stress is the most likely culprit for the large number of regrettable custody decisions that drive attempts to modify child custody. There are a vast sea of people attempting to modify child custody– a treacherous sea at that.

Cooler heads often and more likely receive the better outcome in domestic relations cases. If I had a dollar for every call we have received in 14 years resembling “I made a terrible decision to have few rights to my children because I just wanted the situation to end”, I would retire today quite comfortably. That dynamic has truly reached epidemic proportions-and there is no end in sight. There may be no simple solution to the complexity of this common problem, but there is always value to clear thinking.

The foremost lesson that may be learned from the mistakes of others is that doing anything right the first time around is always easier than having to clean up a mess, then having to start from scratch. Cleaning the mess of a poor child custody agreement is a greater task than beginning with a blank slate.

Never forget (I am speaking to the non-custodial parents) that you have a tremendous burden of demonstrating that something REALLY BAD is suddenly occurring with your child’s custodian………it has absolutely nothing/nada/zip/zero to do with how your situation has improved or that you have now suddenly seen the light. Your bad decision is not simple to shake off unless your child’s primary caregiver has really messed up. Let that sink in for a moment.

You may be wondering if there is any advice I may give to those (possibly yourself) who have made regrettable decisions with their child custody matter. I do. It is almost never too late to have some remedy, even if not perfect. I suggest that anyone looking to have additional rights to spend time with their child seek to change the angle of approach: argue instead that visitation is not workable.

The standard to modify unworkable or even difficult-to-manage visitation does not require the high burden of proving that the custodial parent is badly messing-up. There is no need to show a “material change in circumstance adverse to a child’s best interests”, only that the visitation has become cumbersome (a better word may be “challenging”), but I digress. Often it is not what you say, but how you say it that is most crucial to outcomes. If the proof is only luke-warm that a negative change is harming your child, there is a different, easier path that often will produce positive results.

In sum, let your desire to love and spend time with your child not be diminished by the fear that accompanies parenthood. There are many routes toward accomplishing a better relationship with your children. The law is, and should always be, sensitive and accommodating to those who love their children. While it is never easy to “split the baby”, your good intentions will always set a path toward a more positive future. Your children will one day thank you for it.

If you are dealing with a challenging custody decision, let us help you get it right the first time around. If you have made a bad decision or received the “short end of the stick” in a custody matter and have a deep desire to strengthen the bond you have with your children, we will approach the matter with vast experience and consideration for your constitutionally protected rights. My associate and I have 27 years of experience dealing with the most difficult custody matters and look forward to using it to your advantage.

Matthew Poole, Esq. is a single parent and has a focused practice of providing remedies to those who seek to strengthen bonds with their children and grandchildren. Lindsey Turk, Esq., his associate, is also a single parent with vast experience in family litigation.

Tips Hiring a Family Lawyer; a Psychological Approach

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

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

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

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.