ARE DADS STILL THE UNDERDOG IN A CUSTODY BATTLE?

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…..

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.

Doubling Down: Why Emergency Custody Matters Can Be Expensive

November 30th, 2018

Even in the most hotly contested asset-based divorces, when no children are born to a marriage, costs can be relatively predictable. Although true that alimony demands can often hang up the obtainment of a divorce, most of the time attorneys and litigants alike can come close to an agreement by doing a simple cost versus benefit analysis and a rudimentary calculation of the legal fees estimated to require a complete and final cessation of the marriage.

For obvious reasons, when children become involved, the level of complexity and thus expense of litigation becomes far more extended. So, what about emergency child custody matters? Why so expensive and unpredictable? The answer is simple: multiple hearings will be needed to finalize these often heart-wrenching cases.

In emergent child custody matters, the basic landscape (with some deviation depending on multiple factors) looks something like this;

  1. An initial hearing will be required in order to determine whether in fact the children are in harm’s way and an order is issued the corresponds with the evidence presented. These orders often only last for a short duration. The standards of proof in emergency hearings is often not precisely the same as in the other aspects of the case.
  1. The court then requires a second hearing to determine whether any relief granted should be temporary or extended until a trial date.
  1. The court often holds a third hearing to determine whether or not the emergency relief should be modified, clarified, or eliminated outright.
  1. Discovery (the process of obtaining evidence from the opposition in a lawsuit) issues often require another hearing on motions to clarify whether the parties have completely followed the rules of procedure and what outstanding obligations may exist. These are often simple but can range from basic to inordinately complex.
  1. A final hearing on the merits (trial) is held. Oftentimes there may be mandated a status conference prior to trial in order to shore-up any loose ends. These status hearings are usually not terribly time-consuming, but trial can last 4 hours or even an entire week, depending on how much evidence exists.

As you can see, emergency custody matters often require not just a couple of court appearances, but often approach or even exceed half-dozen mandated appearances and a large investment of time and attorney preparation. Although there is little question that these complex cases can be won based on the quality of preparation, no quick resolution should ever be expected by a custody litigant. Trust your lawyer’s advice assuming they are sufficiently experienced. Rookie lawyers often step on landmines along the way, further complicating matters that could have been relatively simple.

In sum, it is clear that emergency matters are far from the legal equivalent of ordering fast food. I would argue that they look far more like sitting for an extended five-course meal. My best advice is to not set unreasonable expectations. Be prepared for a drawn-out war, not a brief skirmish. There is always a path forward in order to do what is best for the young and innocent lives involved.

If you need help in estimating the requirements of your emergency custody case, feel free to give us a call.

Matthew Poole is a Jackson, Mississippi domestic attorney admitted to the state bar in 2004. He is a Millsaps Second Century Merit Scholar and has received national recognition in the area of family law.

2019 Child Custody and Divorce Prices and Discounts

November 25th, 2018

In 2018, we offered several different discounts for specified time periods, and the results were exceptional for both our clients and ourselves. Law enforcement, military (including veterans), first responders, and teachers deserve to be rewarded for the tough work that they do in such brave and selfless ways. Therefore, it seems logical that we made the discounts more long-term. Seems logical, right? So, we are making strides to extend discounted domestic legal services for longer periods. Until March 31, 2019, we are cutting domestic legal fees by 15% to all:

  1. Law Enforcement and support staff.
  2. Military and veterans, including their direct family (excludes cousins and extended family).
  3. First response personnel to include firefighters, paramedics, and their support teams.
  4. Teachers at public institutions (excludes private school employees).

First I would like to emphasize in the most adamant way possible that costs for divorce will be SIGNIFICANTLY lower for those that can agree to terms, particularly child custody, support, visitation and division of assets and debts, if there are in fact marital debts. For instance, the price for agreed divorce in the Hinds, Rankin, and Madison county area is as follows (plus $93 filing fee–out of area is slightly higher).

  1. No children or property: $675.
  2. Children and no property: $775.
  3. Property and no children; $725
  4. Children and property: $875.

Please note that some additional fees may apply if a Qualified Domestic Relations Order (Q.D.R.O.) or property deed is needed to finalize the marital dissolution. These costs are significantly lower after any discount is applied.

Also, it is important to note that these fees require total unequivocal 100% agreement between the spouses.

Contested (not agreed to) divorce and custody prices vary between $3,000 and $5,000 retainer at $250/hour. It is obvious the value of trying to forge some agreement between yourself and the opposing parent. Child custody and divorce cases are time-consuming, stressful, and expensive. Although it is quite clear that parents often struggle to agree, it is quite worthwhile to attempt avoiding litigation if at all possible. After all, I often repeat that “if everyone were totally reasonable, I would have no job”. Sage wisdom is hard to find when attorneys put their own profits above your well-being. It is all too common, but a better way does exist.

In short, do yourself, your kids, and your spouse (or the opposing parent) a favor by seeking compromise so that you do not spend money on an attorney who simply wants to fuel the fire and line their own pockets with your hard-earned savings. It is always possible that you have no other option than to litigate, and if so we are fully up to the task. I have tried over 400 cases in 15 years and take great pride in winning the close ones. For your own sake, just be sure you have thoroughly explored other options before taking that path toward a prolonged legal battle. Unfortunately, not all lawyers will put ethics before profit. If you need help and advice in crafting an approach to a sane and reasonable custody or divorce matter, I will gladly help you, free of charge.

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.

Back to Square One: Revisiting “Maxims of Equity”

November 3rd, 2018

What in the world is a “maxim” and how does this term relate to Mississippi chancery court proceedings? To put it simply, a maxim, within the context of custody and divorce law, is a truism that cannot be avoided. Maxims represent well-established principles of law and are deeply rooted in what the English legal system regards as law “agreeable to natural reason”. In other words, maxims are the highly regarded principles upon which chancery court finds its very core roots. Maxims are well-accepted as natural law, as opposed to law created by legislative proclamation or executive fiat.

The following is not a comprehensive list of the well-established maxims of equity have been utilized in each and every chancery proceeding, rather a short and palatable version of the ones seasoned chancery lawyers most often argue. Most apply in every case to some extent or another. They are, in no particular order, as follows;

  1. Chancery courts aid those who are vigilant. Those who rest on their rights and fail to act quickly to protect them are often barred by the doctrine of “laches”, which essentially curtails certain rights if they are sought after unreasonable delay. This concept is distinguishable from statutes of limitation and no specific numeric time period applies. The standard is highly subject to interpretation of what constitutes reasonable delay. Each court can interpret this concept much differently.
  1. One must have “clean hands”, or be relatively faultless in order to seek the intervention of the court. Although perfection is not required, those who have violated court orders and acted with virtual impunity are often shown the door-quickly. The court will not aid those who violate basic principles of fairness.
  1. The opportunity to be heard is not unique to divorce and custody proceedings, however, those fundamental rights elaborated by the 5th and 14th Amendments to the U.S. Constitution are given significant preference in terms of being chancery due process of law. Opportunity to be heard is soundly fundamental.
  1. Substance takes precedence over form. Although to a certain extent this shift in procedural dynamics has also been seen in damages/non-equity courts, the transition away from fact pleading and toward notice pleading is even more visible in courts of equity (chancery). Intent is more valuable than form of pleadings.
  1. All wrongs have a remedy, even if no statute prohibits specific conduct. Generally, and going back to 8th grade civics class, the legislature makes laws that are then interpreted by the judiciary. In equity courts, strict adherence to legislative proclamation takes a back seat to redressing all wrongs. A particularly pointed example of this function is when a party has failed to specifically make a claim that is within the general subject matter of the litigation but the opposing party is well-aware of the potential for liability. Often after a pleading is filed but prior to trial, facts and circumstances change. The court is not often inclined to hold you to a rigorous standard when this simple oversight occurs.

In summation, Mississippi chancery courts exercise broad authority in determining all matters that come before them. Chancellors have broad discretion and will exercise them to the benefit of fairness. Strict rules of pleading are not par for the chancery course. Although most litigants are willing to deal with the stress of domestic law, often a simple path remains elusive to those who are charged with excessive emotion. If you have a chancery court matter and need some fair advice from a seasoned litigator, feel free to give us a call.

Matthew Poole is a Jackson, Mississippi domestic lawyer who specializes in domestic conflict management. He is a single father and extremely passionate about the best interests of children.

The Crucial Divorce Moment: Talking to Your Spouse

October 29th, 2018

Divorce is a tough topic of conversation, even with friends and family. It presents even more cumbersome challenges when faced with the prospect of speaking with your spouse about severing the bonds you made in matrimony. Is there any advice that can help someone who is faced with the prospect of divorce? Severing marital bonds is tough, especially when children are in the mix. Innocent lives will be forever changed both during and after a divorce. How can one rise to the challenge and protect those affected by the fallout? No easy answer exists but a path forward to peace and your childrens’ happiness does.

One piece of sage advice for those facing divorce is that patience is in fact very beneficial. It is ironic yet true that often life presents choices that are either difficult, or simple and ill-conceived. Divorce is no exception from that truism. It may be true that no one truly “wins” a divorce, but certainly someone will always get the shorter end of the stick. When considering the depth and breadth of college expenses, alimony, division of a marital estate, and all other support belonging to your children, the numbers and commas grow to the point of causing fear and severe anxiety in most divorce litigants. It simply comes with the territory.

Although this is no new topic to those who regularly read my blog, it is sufficiently crucial that those in failing marriages recognize the bare truth: having communication with your spouse is just as important as it was when you were dating. It is too easy to forget that a simple civil discussion can save not only thousands of dollars in attorney fees but the stress that accompanies prolonged litigation. Extensive litigation can be avoided in most cases if one is willing to swallow their pride and put animosity to the side. It is fully possible to be your own best advocate and to advance your cause without the involvement of attorneys.

The average cost of raising a child is now approximately a quarter of a million dollars according to Time Magazine. This figure excludes post high school education and related expenses and also does not include gifts and vehicle/transportation expenses. It always shocks me that non-custodial parents feel strongly adverse to forfeiting 14% of their take home pay for a single child’s support, 20% for two children, and 22% for three. It seems to be a drop in the bucket when considering the larger financial picture. I struggle to believe that custodial parents have it any easier.

Where does one begin the tough topic of divorce with their spouse? My best advice is to keep it simple and to avoid the emotional topics, at least initially. Make a solid attempt at agreeing to child support, health and life insurance, and visitation. If you are unable to get past those three crucial pillars of divorce, you may have no option but to fight for what is fair and just. However, be aware that Mississippi Chancellors are primarily concerned with the best interests of children. Seldom does a judge blatantly view only one side of the complex equation which is divorce.

If you are neck-deep in the divorce process and would like to attempt a no-fault resolution, let us know and we will gladly attempt to point you in the right direction. If you have already explored your options to the fullest and seek the intervention of the court, we are fully able to accomplish reasonable goals on behalf of our clients. It is up to you to take the first step.

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.

A Path to Simplify Custody/Divorce Disputes – 5 Tips

October 21st, 2018

The vast majority of parents simply cannot afford to fight a custody battle all the way through trial. More than one-half of custody battles cost each litigant in excess of one-hundred hours of attorney time, and when adding expenses such as investigative fees and court costs, it is rare that a custody battle will not lead to fees similar to that of a major surgery. As I say, there are no simple solutions to complex problems. However it is quite clear that having a clear basis for discussion with your child/children’s other parent can assist in formulating a workable path forward.

When a prospective client calls my office, the first thing we often hear is that no conversation regarding custody, visitation, support, insurance, etc. has occurred regarding the children. This presents what I would call a “non-starter”. If the caller has vast financial resources, perhaps it may make sense to shirk what seems to be the obvious starting point of talking about a resolution with little conflict; conversation.

More often than not, parents can prevent a whole lot of cost and lost sleep by having a conversation with the other parent that maintains a linear path to resolution. Funds are better spent on college or other educational opportunities that children often lack. How can this be accomplished? Here is a simple blueprint that will hopefully advance your cause and save you money and stress that accompanies child custody litigation. Hopefully my clients have done everything under the sun to avoid costly litigation, however some legal “scholars” may have convinced them the fight and not be their own best diplomat.

The blueprint to successful low-cost resolution is as follows:

Offer visitation that is respectful of the other parent’s work schedule. Often, the hang-up in custody/visitation matters is that one parent had an irregular and unpredictable work schedule. There are many ways to accommodate these issues and a little bit of creativity often goes a long way.

Unless your ex is violent or a danger to your child, consider agreeing to joint legal custody. It is only a token victory for the opposition and will help to avoid future conflict. Legal custody rarely has significant impact and is a valuable tool in negotiation. It feels like a moral victory to those who tout their parenting abilities and want involvement with their little ones.

Consider initially seeking alimony only if your marriage has been over 8 years and there is significant disparity between your income and that of your spouse. Also, keep in mind that earning capacity is considered as much as actual earning history. If you are highly educated and do not have stay at home kids, the odds of receiving alimony are slender anyway.

Don’t worry about keeping the house, an equity payout is just as valuable. If you are unable to afford the mortgage payment, you are likely fighting a losing battle anyway.

Don’t seek attorney fees unless there is a true need. The old saying “don’t put good money before bad money” applies here. You will often spend more battling for fees than it is worth. Also, it is rare to see awards of more than 3-4 thousand dollars unless the payer makes more than six figures annually.

In short, people waste an awful lot of money to “win” a divorce or custody case because they are determined to be right. I respectfully suggest that more often than not, the price of moral vindication is too high to make sense. If a legal decision saves dollars, it also makes cents (get it?….my attempt at humor usually is not that funny). If you need help navigating a divorce or custody matter I will gladly put you on the best path to peaceful, inexpensive resolution.

Matthew Poole is a Jackson, MS domestic attorney who specializes in family law conflict resolution. He was selected Top 10 Family Lawyer in the state in 2018 by the National Association of Family Attorneys. He is a 2001 Millsaps Second Century Merit Scholar and Finalist of the Steen, Reynolds, and Dalehite Trial Competition. He was admitted to the Bar in 2004.

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.