Age 12: Not A Magic Number

October 11th, 2017

The law is full of misconceptions, and one of the most common ones that our office receives calls about is the role a child plays in a custody case. Many people seem to believe that when the child reaches age 12, they have the choice of which parent to live with. While age 12 does have some significance in custody cases, it does not give the child license to make that decision entirely on their own. It does, however, allow the child to express a preference, and the way the child chooses to do that may largely affect the outcome.

It is often a joke with lawyers that if we allowed children to make their custody decision, the child would pick whichever parent allows them to jump on the bed and have ice cream for breakfast. That is a slight exaggeration, but judges acknowledge that many 12-year-olds do not have the maturity to make the best decision for themselves. Several factors go into the judge’s decision on how much weight to give the child’s preference, such as the child’s age, their reasons for their preference, and the judge’s personal sense of the child’s maturity level.

If the child has good reasons for picking the parent they want to live with, a judge will most certainly consider the child’s preference. Good reasons include the school situation, the home environment, and, to some extent, the child’s community record. Reasons that will most likely not persuade a judge include picking the more lenient parent, being closer to a girlfriend or boyfriend, or, like the old joke goes, the parent who lets the child eat pizza for every meal. Ultimately, the case largely leans on the child’s ability to make a thoughtful, reasonable argument to the judge about what living arrangement is in the child’s best interest. Below are some examples of good and bad arguments by a child for their preference.

What may work: “Your honor, I want to live with this parent because I believe this environment is best for my personal growth and educational opportunities.”

What will probably not work: “Your honor, this parent is stricter than the other, and therefore I do not wish to live with them.”

A child’s living arrangements is an extremely important decision, and courts prefer to have the child involved as much as possible. Allowing a child of 12 years or older to be able to show a preference and giving them the opportunity to speak on their behalf achieves that while still giving the court enough control over the situation to make the decision that is in the child’s best interest. We often hear the misconception that the child has control over their custody arrangement, and while they do play a role, it is not as great as many people believe. If you or someone you know has a custody problem, call the Law Office of Matthew S. Poole. Our office has the experience and knowledge to properly address your case and achieve a fair result. With any questions, call our office at 601-573-7429.

Child Custody Modification: What Does It Take?

October 2nd, 2017

Child custody arrangements are almost never easy to deal with, legally or emotionally. They become increasingly complex when one parent decides they deserve more time with the child. Modifications of child custody are long, stressful and expensive. You can probably imagine why, as the living arrangements of a child have a large impact on their development, and therefore courts prefer to leave no stone unturned in deciding on the best situation. Unfortunately, many times a parent is not granted custody because the court has some reservation about that parent’s ability to raise a child. The flip side of that coin is that people can change, sometimes for the better. When a parent who has lost custody improves their situation in some way, it may be natural to believe they are entitled to a modification of child custody. While this is certainly a factor, there are others at play in the court’s decision.

Proving a positive change in the non-custodial parent’s life can often be the easy part of a modification case. In order for child custody to be modified, the non-custodial parent must prove there has been a substantial change in the circumstances affecting the child, the change has adversely affected the child’s welfare, and that a change in custody is in the best interests of the child. Johnson v. Gray, 859 So.2d 1006, 1013 (Miss. 2003). Improvement in the condition of the non-custodial parent does not justify making a change. Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss. 1996).

This is where child custody modifications become the complicated cases they can be. The non-custodial parent could have very well improved an area of their life that the court felt was a concern, but if there has been no adverse change in the custodial parent, a modification of custody will probably not be successful. Therefore, the burden of proof for a non-custodial parent in a child modification case is twofold. The non-custodial parent must show that something has changed with the other parent that has negatively affected the child while also proving that a change in custody over to them serves the best interests of the child. This is quite a high burden to meet, which adds into the stress and expense of these kinds of cases.

Choosing which parent gets more time watching a child grow up is not a fun process, and it can be a difficult thing for parents to hear. Our office believes that child custody should never be dealt with lightly, and that Mississippians deserve to know their options going into a modification case. If you believe you are entitled to a modification of your custody arrangement, call the Law Office of Matthew S. Poole. We have the knowledge of the law regarding child custody modifications to make you feel confident in our legal services, and we also have a great passion for helping children and parents be together as much as possible. Call the Law Office of Matthew S. Poole at 601-573-7429.

In Loco Parentis: A Mile In Their Shoes

September 27th, 2017

Many of us have figures in our lives that mirror the role our parents play. Someone you trust, respect, and love. In some adult-child relationships, those people can step into the role of a biological parent. The doctrine of in loco parentis, which roughly translates to “in the place of a parent” addresses these relationships, and attempts to protect the best interests of both the child and the adult. Because of the delicate nature of these situations, Mississippians should know their rights when they believe that a child belongs with them instead of the natural parents.

When a person stands in loco parentis, they have assumed the status and obligations of a parent. Farve v. Medders, 241 Miss. 75, 81, 128 So.2d 877, 879 (Miss. 1961). This means that person provides parental supervision, support and education as if the child were their own. W.R. Fairchild Constr. Co. v. Owens, 224 So.2d 571, 575 (Miss. 1969). In loco parentis status carries the same rights and liabilities that belong to a natural parent, including a right to custody of the child against third parties. Farve, 128 So.2d at 879.

Although in loco parentis grants these rights, the rights of the natural parents are still superior. Mississippi law recognizes the natural parent presumption, which presumes that the biological parents of a child are the best guardians for that child. A third party’s in loco parentis status, standing alone, cannot by itself rebut that natural parent presumption. Smith v. Smith, 97 So.3d 43 (Miss. 2012). For a third party to rebut the natural parent presumption, it must be shown by clear and convincing evidence that 1) the parent has abandoned the child; 2) the parent has deserted the child; 3) the parent’s conduct is so immoral as to be detrimental to the child; or 4) the parent is unfit, mentally or otherwise, to have custody. Smith, 97 So.3d at 46. This is obviously a high burden, especially given that clear and convincing is the highest standard of proof used in civil courts. Once the presumption is rebutted, courts may then decide the custody of a child using the Albright factors.  http://www.mspoole.com/case-results/albright/.

Children deserve to have the best parental figures available to them. Unfortunately, sometimes the best parent is not the biological one. When someone stands in loco parentis to a child, that child depends on them to be there for them, and the law can help that person keep their rights to do so. If you or someone you know has a question about in loco parentis rights, call the Law Office of Matthew S. Poole. Our office has the knowledge, experience, and passion needed to best address your legal situation, and to help you keep your rights to foster a relationship with a child who needs you. To schedule an appointment, call our office at 601-573-7429.

Constructive Desertion: When You Just Know

September 11th, 2017

This is the way the world ends. Not with a bang but a whimper.” T.S. Eliot’s words from his poem “The Hollow Men” can unfortunately describe the end to many marriages. Mississippi law states that desertion of a marriage may act as grounds for a divorce, but the statutory desertion period is one year. When that time period has not been met but there are signs the marriage is ending, courts look to constructive desertion to entitle a party to a divorce. Constructive desertion has been defined by Mississippi courts as conduct that renders the continuance of the marriage unendurable or dangerous to life, health or safety. Benson v. Benson, 608 So.2d 709 (Miss. 1992).

In Benson, the trial court did not grant the parties a divorce on the grounds of cruel and inhuman treatment. The husband alleged that the wife had committed cruel and inhuman treatment by habitual ill-founded accusations, threats and malicious sarcasm, insults and verbal abuse. The trial court found that the martial problems were mostly based on the incompatibility of the parties, which is not a ground for divorce in Mississippi. The Court of Appeals found that the trial court had correctly denied a divorce on cruel and inhuman treatment, but remanded the case for the ground of constructive desertion.

As you can tell by that standard used by the courts, constructive desertion can take many forms. What makes a marriage “unendurable” is different for different people. Mississippi courts have held that inexcusable, long-continued refusal of sexual relations warrants a divorce on the ground of constructive desertion. Tedford v. Tedford, 856 So.2d 753 (2003). As silly as that may sound to some people, this could signal that two spouses have basically become roommates, and the marriage has therefore been deserted.

This conduct may also stem from monetary support issues. If a husband has the means and ability to support his wife, and negligently or willfully does not, then the wife will be justified in severing the marital relationship and leaving the home. If the husband still refuses to support her, then he will be guilty of constructive desertion even though the wife left the house. Deen v. Deen, 856 So.2d 736 (Miss. Ct. App. 2003).

As dramatic as divorces often are, sometimes their end comes with a whimper and not a bang. Sometimes, you just know a marriage has no chance of lasting. Constructive desertion is a ground that many spouses in Mississippi can use to leave a marriage that has not yet reached the statutory time requirement. If you or someone you know is in a marriage that meets the criteria of being unendurable for a reasonable person, or if the person’s life, health or safety is in danger, call the Law Office of Matthew S. Poole. Our office is experienced in courts throughout Mississippi with our full time and energy dedicated to domestic matters. This allows our office to know the nuances of the law, and to provide you with your best representation. Call the Law Office of Matthew S. Poole today at 601-573-7429.

How do Mississippi Courts View Joint Physical Custody Arrangements?

September 1st, 2017

Very commonly our office receives inquiry from parents seeking to obtain joint physical custody of a minor child or children. It is first important to recognize the distinction between legal and physical custody, which topic has been discussed in several of our previous posts, but I digress. The basic logic that is employed by the majority of Chancery Court judges in Mississippi is that it is preferable for a minor to have a primary physical residence, i.e., a soft place to land on a consistent basis without excessive “switching” of residences. Also, consider that most public school districts require proof of primary residence (as in one primary “home”) in order to meet admission criteria.

It is notable that statute in Mississippi mandates, with rare exception, that courts must approve of joint physical custody agreements. Therein is the rub: rarely are former lovers able to form an agreement that both can live with due to the highly emotional nature of child custody litigation whether in a divorce or otherwise.

There is no question that most commonly chancery judges prefer to award primary physical custody to the person deemed to be the better parent (based upon the best interests of the child) and to grant only standard visitation to the other. Standard visitation will be discussed at length in an upcoming entry, but basically consists of every other weekend, 10 days during the Christmas Holidays, alternating major holidays/birthdays, and two 2-week periods of summer visitation.

There are several judges we deal with on a regular visitation that local domestic attorneys refer to as “standard visitation” judges. They are not often inclined to deviate much, if at all, from standard visitation. That being said, there are others who will more creatively craft a schedule which is in excess of that contemplated by the statutes that clarify the meaning of standard visitation.

Many factors are at play, but for the purpose of this article we will exclude the chancellors who are not inclined to deviate from the basic fundamentals of standard visitation. This is not to say that many chancery judges cannot be convinced to award joint physical custody in spite of an inclination otherwise. Again, it is absolutely crucial that we are discussing this basic principle within the context of matters where a custody agreement cannot be reached by the parents.

In short, it should always be the first order of business to attempt to forge a joint custody agreement with your child’s other parent. If you are reading this, you have likely already recognized that it is much easier said than done. Only after you have turned over every stone to work together without success should you consider filing a contested custody matter.

When litigating child custody matters, always remember that joint physical custody of your minor children becomes more difficult the further away you live from the other parent. If you do in fact live relatively closely to your child’s other parent and you have a relatively healthy relationship with them and are able to communicate without significant friction, particularly regarding your child’s well-being, your odds of the court awarding joint physical custody increase a great deal.

It is always a partial victory, even when denied equal custody, to be awarded additional time with your children beyond standard visitation. Chancellors have broad discretion in these matters and may craft a visitation schedule in any number of ways, so make sure your attorney has considered making the vast array of arguments that suit your unique set of facts. Do not forget that tax consequences of a minor’s residence are most commonly based upon their primary residence unless agreed to otherwise.

If you have been unable to reach an agreement with your child’s father or mother regarding joint custody or to obtain something in excess of standard visitation, we will utilize all existing case law, statute, as well as subjective factual argument to your advantage.

Matthew Poole, Esq.,

Jackson, Mississippi

601-573-7429

Attorney Matthew Poole Announces Fundraising Drive for Southern Christian Services for Children and Youth

August 12th, 2017

So often, I, like too many others, have sat idly by as we see the suffering of others.

Sadly, so many children are the innocent victims of abuse of a parent or step-parent. Our great state is riddled with thousands of children in foster care who have been neglected our even outright abandoned by their caregivers. This is the hand they were unfairly dealt in life through no fault of their own. They were brought into a sometimes cruel and often uncaring world. It has come time to give those children a fighting chance to become productive members of society. As a community, it is our duty and calling to provide all children with a fighting chance in this world. The Law Office of Matthew Poole is committed to doing our share in the fight for the children who are not able to fight for themselves.

Southern Christian Services for Children and Youth, Inc. is a faith-based, non-profit organization that was incorporated in 1988. Their motto is “Rebuilding Broken Lives”, which emphasizes a providing healing and assistance for children and youth who have experienced abuse, neglect and abandonment as well as adequately equipping them for a more positive and productive future. Their assistance to children is often the only viable lifeline for these vulnerable youth.

Since its inception, Southern Christian Services for Children and Youth has attempted to create services that fill a need rather than duplicate services already provided by other organizations. They operate the only statewide program of post adoption services that are designed to support adoptive and foster families. They provide Therapeutic Foster Care and Adoption program that serves children with special needs. They also run an Independent Living Preparation Program, which is the only Mississippi state-wide program reaching out to all teens in the Mississippi Foster Care System.

Beginning August 10, 2017, The Law Office of Matthew Poole is offering an incentive to those who wish to join the fight in helping these children. Any of our current or future clients who pledge $100 (one-hundred dollars) will receive a discount in the amount of $200. Any of our clients who pledge $150 will receive a discount in the amount of $300 (three-hundred dollars). Please give to this invaluable cause and receive a credit toward any of the various domestic legal services that we proudly provide. As Mother Theresa once urged, “Even when you cannot do great things, you can do small things with a great heart”. Please visit Southern Christian Services for Children and Youth online at scscy.org.

Not often does an opportunity come along where giving not only costs nothing, but is mutually beneficial for the one who gives. We thank you deeply for your caring. Your small contribution truly makes a difference in the life of a child.

Thank you and God Bless,

Matthew Poole, Esq.

Matthew Poole (601) 573-7429

Grandparents Do Have Visitation Rights!

July 26th, 2017

Are you a grandparent of a child of divorce shut out of your grandchild’s life? In Mississippi, grandparents have a statutory right to visitation with their grandchildren, in limited circumstances. The polestar consideration in matters of child custody and visitation is “what is in the best of interest of the child?” In Mississippi, specific statutes confer upon grandparents certain visitation rights under specific circumstances. Below is the logical flow chart of the specific statutes that apply.

The statutory circumstances that apply to visitation rights are as follows:

Parent of the noncustodial parent;

Parent of the parent with terminated parental rights;

Parent of a deceased parent of the child; OR

Grandparents who do not fit any of the above three categories may still petition the court for visitation rights

Grandparent must prove an established “viable relationship” (defined below) with the child; OR

Grandparent must show the court that the custodial parent unreasonably denied the grandparent visitation rights; AND

Grandparent must convince the court that granting visitation rights to the grandparent are in the best interest of child.

“Viable relationship” as it relates to visitation rights of grandparents means “a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child, the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year, or the child has been cared for by the grandparents or either of them over a significant period of time during the time the parent has been in jail or on military duty that necessitates the absence of the parent from the home.”

Your rights to grandparent visitation are worth pursuing if such would be in the best interest of your grandchildren. The above summary of the statutory rights conferred upon grandparents by the legislature is not an exhaustive list of factors the courts consider when making a determination of visitation with a child. Furthermore, the particular facts of your case are determinative of the proper court in which to file your petition for visitation rights. Establishing visitation rights of grandparents can be complicated and should be done with advice and representation by a qualified attorney.

If you are a loved one has questions about grandparent visitation issues, schedule a consultation with the Attorney Matthew S. Poole. Matthew has over a decade of experience representing parties in all matters of visitation, including many grandparents.

What does “custody” really mean?

July 19th, 2017

You’ve probably heard it before: “I have full custody of my kids” or “I have legal custody” or “He has physical custody of the children” or “We have joint custody of our child.” All those mixing of terms can make child custody confusing, but it shouldn’t be. Child custody in Mississippi is awarded in two ways – “legally” and “physically” – and can be combined in a number of ways to fit the best interest of the child.

Legal custody” pertains to the rights bestowed upon a parent to make decisions of health, education and welfare of the child. “Physical custody” describes the time a child resides with a parent. When parents use “joint custody” to describe their custody arrangements then the court has granted both parents shared rights of custody either physically or legally or both. Generally, parents with “joint physical custody” equally share physical custody of their child and it is exercised every other week. “Joint legal custody” means the parents share in the significant (i.e., not whether the child needs a band-aid) health, education and welfare decision making of the child, regardless of which parent has physical custody of the child at the time decisions are made. The right to share all of the child’s official records is presumed and paramount. Parents might share joint legal custody while one parent has physical custody or parents could share joint physical custody while one parent has legal custody. It should be noted that good communication between parents is paramount to the court’s consideration of whether joint legal custody is in the best interest of the child. Even if the court determines that both parents are equally capable of making legal decisions in the best interest of the child, poor communication between the parents typically results in the Chancellor arbitrarily designating one parent as the sole legal guardian of the child.

Each child custody case is different as evidenced by the many combinations of legal and physical custody, however all custody cases are decided using the same polestar determinant: What is in the best of interest of the Child?

If you or someone you love has questions about their child custody issues then schedule a consultation with the Attorney Matthew S. Poole. Matthew has over a decade of experience representing parents in divorces where child custody is the central issue and in child custody modifications.

Myth: Courts Give Mothers Preferential Treatment for Child Custody When Child is Young

July 11th, 2017

Early American courts favored mothers over fathers for custody of young children. The legal tradition of preferential treatment of mothers eventually led to the adoption of the “tender years” doctrine. However, Mississippi courts no longer give preferential treatment to mothers of young children in child custody cases, with limited exceptions.

The “tender years” doctrine is a 19th century principle rooted in common law and stood for the premise that a mother of children of tender years (generally 4 years or younger) was presumed to be the best parent to care for young children. This was the legal rationale courts used to award mothers custody. Mississippi, as have most states, has trended towards a more balanced examination of both parents in determining which one is the best custodial parent of a child. Rather than completely abolish the “tender years” doctrine, it has been included as an Albright Factor (discussed extensively in other blog entries). Thus preferential treatment, as it relates to the “tender years” doctrine, is still a factor, but weighed against all the other factors courts consider.

There are, however, rare exceptions to the general rule against preferential treatment of mothers. When chancellors (family law judges) apply the Albright Factors to their analysis of the parents in a child custody case they do so with the best interest of the child as the overriding determinant. Courts in Mississippi consider it the best interest of a breastfeeding child of tender years to remain with the mother, thus giving these breastfeeding mothers preferential treatment in cases of child custody. Of course a father may present facts to the court, such as drug use of the breastfeeding mother, which override the interest of a young breastfeeding child remaining with the mother.

Suffice to say that the preference given to mothers in child custody determinations has diminished in weight to an appropriate position as one of a dozen or more Albright Factors. Ultimately, courts are going to consider many factors when making a child custody determination of a child of tender years. If you are a father or mother of children of tender years there are many issues to consider with an attorney. Matthew S. Poole has the experience and expertise to assist you in all your child custody needs. If you or anyone you know has a question about child custody matters, please contact the Law Office of Matthew S. Poole at 601-573-7429.