Mississippi Custody Considerations (Albright Factors): Physical and Mental Health of the Parents

February 20th, 2018

As many of our readers know, the foremost consideration in any custody decision is the best interest and welfare of the child. As a way for chancellors to navigate the interests and emotions involved in custody battles, courts created a list of factors to ensure that the chancellor considers all the relevant facts before making a decision, known as the Albright Factors. Many assume that no other factor is more contested than the consideration of each of the parents physical and mental health. However, this factor is most often found neutral, not favoring one parent over the other.

During child custody cases, parents’ physical and mental health information is made available via testimony of those parents. For example, a mother may testify as to her paranoia and suicidal feelings, in which the chancellor would take that into consideration when weighing that against a father with no record of mental or physical health problems. In cases like that, the chancellor could decide that the mother was the less mentally fit of the parents, thus awarding custody of the child to the father.

However, often the allegation of a physical or mental deficiency is made by one parent to the other. Clients who come into our office often suspect that something is making the other spouse act the way they are, which is usually decided to be a mental issue. Unless a chancellor finds factual support that one parent is suffering from mental health issues, a court will usually find that this factor favors neither parent. When a chancellor finds this factor neutral, the court will usually turn to other factors to decide the custody of the child.

The worry of physical disabilities impacting a custody decision is also something we encounter when speaking to clients. Health problems are no stranger in Mississippi, from diabetes to PTSD to cancer. These can surely be cause for concern when giving custody of a child to a parent, so it is important for parents with these conditions to either have it relatively under control so that they can devote more time to taking care of the child.

Often, concerns about this factor are based on a fear of “what the other parent will say.” However, absent a showing of a condition that causes the chancellor great concern, the mental and physical health of each parent is a neutral factor. Courts are aware of the adversarial nature of these cases, and therefore require proof of a condition that may impact the child negatively. If you or anyone you know has a question about this factor or any other Albright Factor, or any other law pertaining to custody, call the Law Office of Matthew S. Poole. Our office is pleased to assist you in this turbulent time. Please continue to keep following this series as we explore and discuss each of the Albright Factors.

Mississippi Custody Consideration (Albright Factors): Emotional Ties of Parent and Child

February 14th, 2018

One consideration that seems to be the more famous of the Albright factors that a court focuses on in a child custody case is the emotional ties between parent and child. Two of the most common misconceptions about this factor is that the court only considers the child’s preference and that this factor inherently favors the mother. While these certainly may occur in any given situation, a chancellor delves deeper into the underlying interactions between each parent and their child when making this decision.

Provided through testimony in a child custody case, a chancellor relies on statements and facts to find which parent to whom the child is more bonded and attached to. For example, the court would consider the fact that the child would ask for the father when he was sick. The chancellor could also look to the bedtime ritual of the child to see which parent he or she preferred to put them to bed. Even labels such as “momma’s boy” or “daddy’s girl” may be taken into consideration by the chancellor and weighed in favor of the father.

When weighing this factor, the court also looks to the parent’s bond with the child. If both parents are found by the chancellor to have a supportive and significant role in the child’s life, this factor would be weighed against neither party. However, if there was testimony that only one parent had a predominant role in the child’s life, the chancellor could weigh this factor in favor of that parent. Testimony or facts showing that one parent, for instance, attended school programs, knew the child’s clothing and shoe sizes, and would regularly read and play games with the child would show that that parent and child had a more emotional bond, thus tipping this factor in their favor.

This factor is one where a guardian ad litem becomes very important, as during the writing of their report that guardian is likely to visit the home of each parent while the child is there to watch them interact with the child. While the other factors in a child custody determination will certainly be present in those reports, the emotional bond and interaction between parent and child often takes center stage, as that bond will obviously have an impact on the raising of the child for years to come.

Many who come into our office have questions about how this factor may relate to their case. We receive many calls from people who are merely ill-informed about how the court takes into consideration the emotional ties of the parent and child. If you have a question about how things in your life can impact your case, call the Law Office of Matthew S. Poole. Our office has the knowledge and insight of these factors and their application to answer any and all questions you may have. We are pleased to help you in this unpleasant time, and please continue to follow our website’s series on the Mississippi child custody factors.

Mississippi Custody Factor 4: Employment of the Parent

February 8th, 2018

In tune with our last post, Mississippi Courts rightfully use many factors in determining the custody of a minor child. The employment of the parent is a crucial factor in the Albright analysis that a chancellor will weigh in determining which parent will be awarded custody, and will also play a part in the creation of a visitation schedule between the parent and child(ren). This factor may seem as though the court looks just to which parent has the higher-paying job or career. The court’s analysis, however, dives deeper into the responsibilities of each of the parents’ employment.

Standard visitation is every other weekend, 4 weeks in the summer, and 10 days at Christmas time, with other holiday visitation scattered throughout the year. Obviously, careers such as offshore workers, nurses, military, and others that demand large blocks of time will most likely not allow this schedule to be workable. Understandably, this is a concern we often hear in our office, as many Mississippians are employed in professions such as these. The client hears “since you don’t have time to exercise your visitation, you don’t get it at all.” This is absolutely not the case, as any chancellor in Mississippi would be gravely mistaken to not consider that work schedule regarding visitation.

Many people also think that the parent with the higher-paying career is perceived to be better suited to provide for the child, however this concern is ill-placed, as support is only one facet of this factor. Many times, the court looks to the parents’ work schedule and time at work to determine whether their work life is conducive to being involved with the child’s school and social life. Often, a parent whose employment schedule and responsibilities align with the child’s school and social schedule will weigh more favorably than just a job with a higher income. For example, a parent with a job that starts at 8:30 a.m. until 3:00 p.m., who has time to drop off and pick up their child at school, may be considered more beneficial to that child than a parent with earlier hours and higher pay.

Although the nature of a parents’ employment and the responsibilities of that employment is an important factor for a chancellor to consider, it is but one factor among many that the court must weigh in awarding custody. Though not dispositive, a parents’ work hours and schedule weighs in favor of that parent when that schedule best cooperates with the needs of the child.

This factor of a child custody decision is one that clients often have the most questions about, because their employment usually relates to support issues. However, the employment of a parent is also a huge factor in custody and visitation. A lot of professions have schedules that simply do not allow standard visitation to work, and parents will not be punished for having a schedule like that. If you have any questions about your employment in relation to a child custody case or know anyone who may have questions about a child custody case, please call the law offices of Matthew S. Poole. We are pleased to assist you in this turbulent time. Feel free to keep following this series on the Albright factors.

Mississippi Custody Factor 3: Parenting Skills

February 1st, 2018

Considered by some to be the “smoking gun” in child custody cases, the determination of which parent has the better parenting skills is pivotal in a chancellor’s decision in awarding custody. Before entering our office, many clients feel anxious about the weight of this particular factor because they feel as though they may be singled out as not being able to raise and nurture their child. However, while the determination of which parent has the better parenting skills seems like the most important element in a child custody case, it is only one factor that a chancellor weighs in making their decision, and a factor that could wind up favoring both parents equally.

When weighing this factor, courts look to which parent has the willingness and capacity to provide primary child care. This can include being a stay-at-home mother, being actively involved in the child’s schooling, and acting as the primary disciplinarian. Courts may also look to see which parent contributes more to the child’s social needs, such as driving them to and from sport’s practices. If one parent is unwilling or unable to provide this type of care for the child, then the court will not weigh this factor in their favor. This can obviously result from a number of aspects about a parent’s life, most notably employment demands.

One misconception that many people read into this factor is that it will always clearly favor one parent over the other. Many times, courts find that this factor favors neither parent, because both express a desire and willingness to provide for their child. In this situation, a court would turn to other factors to decide the custody of the child. Another worry that clients seem to have about this factor is the strength of the words “ability” and “willingness.” Being deemed to not have the ability or willingness to raise child will surely have a profound effect on a parent, however all is not lost when this occurs.

Many incorrectly believe that this factor is the main decision regarding a chancellor’s judgment of who the better parent is to raise the child or children involved. It is not. Although an important factor, the determination of which (if either) parent has the best parenting skills is just one of several factors that the court weighs in a custody case. If you or any one you may know has a question, or is unsure about the law pertaining to custody, call the Law Office of Matthew S. Poole. Our office can answer any question that arises about these factors that you may have, and can help you through this unpleasant time. Please continue to follow this series as we explore and explain more of the Albright factors.

Albright Factors Part 2: Continuity of Care

January 24th, 2018

Our previous article discussed the first child custody determination factor from the Mississippi Supreme Court’s ruling in Albright v. Albright, which is the age, health and sex of the minor child. We now shift our focus to the next factor that may be overlooked at first, but then seems to make intuitive sense to most people: the parent who has had continuity of care of the child prior to the separation of the parties.

As with many factors in child custody cases, people often believe this factor presents an inherent bias toward the mother. However, this is not always the case. Either parent could have a very demanding job that simply takes time away from providing care to the child at home. For example, in Copeland v. Copeland, the Chancellor found that this factor favored the father, because he would spend time with the child after work, prepare the child’s meals, and get the child ready for bed until the mother arrived home from work. Copeland v. Copeland, 904 So.2d 1066, 1076 (Miss. 2004). The Court also noted that the continuity of care should be examined prior to and during the separation, so temporary custody cannot weigh too heavily in favor of one parent automatically.

The continuity of care of a minor child can also be examined by which parent seems to carry a bigger load of the responsibilities in caring for a minor child. In May v. May, the mother believed this factor favored her because she took her son to most of his doctor’s appointments, often cooked dinner for the family, and got her son ready to go to school in the morning. The Court noted that while this seemed true, the factor favored both parents evenly because there was evidence that the parents split duties regarding the child’s care, as the father had also taken the child to some appointments and cooked to the best of his abilities (soup and grilling). May v. May, 107 So.3d 1052, 1055 (Miss. Ct. App. 2013).

This factor is one of the Albright factors that begins almost at the birth of the child. Continuity of care will favor the parent who has taken on responsibility of the child’s care, but can often come out as favoring both parents evenly. Contributing to the care of a child can range from the obvious, such as changing and feeding, to the not-so-obvious, such as bedtime stories and trips to the doctor. Parents engaged in a custody battle obviously care about the children, so if you think one of your parenting duties is related to the continuity of care, speak up! Those assertions can only help you, and showing the ability to be responsible for child care will help greatly in the Court’s decision.

Albright Factors: Age, Health, and Gender

January 16th, 2018

Many of you are probably thinking that, according to our last post, that the age of the child is no longer considered a major factor in child custody decisions. This is not true, as even though the tender years doctrine is no longer treated as a hardline rule, the age of the child is still a factor that courts weigh in these cases, along with the health and gender of the child. The Mississippi Court of Appeals noted that sometimes all three factors are grouped into one larger factor, and sometimes age is separated from health and gender as its own factor. Flowers v. Flowers, 90 So.3d 672, 679 (Miss. Ct. App. 2012). While these factors may seem rather cut and dry, there are many ways that an attorney can construe these factors in the favor of their client to swing the balance of the court’s decision on child custody.

While most parents are concerned and interested in the health of their child, not all of those parents can give the child the attention their health deserves. Children afflicted by serious illnesses require a lot of personal care, and that means a lot of doctor’s appointments. Courts may look to see which of the parents is more able to accompany the child to these health-related appointments in making their decision on custody. That parent may also be better able to spend more time with the child making sure they feel safe, loved, and often simply to take their mind off their illness. While a parent with a demanding job can feel a huge amount of concern for their child’s health, they also cannot be in two places at once.

As mentioned in our previous post, the age of the child was given large consideration in child custody decisions, and although it is not the only factor, courts still use it in their analysis. The age of the child often relates to breastfeeding, as the standard was that during the child’s “tender years” that the presumption lied with the mother being the best guardian until either parent could equally care for the child. Before the prevalence of formula, this factor would have all but certainly favored the mother, leaving fathers with an uphill battle for custody of their child.

Related to the application of the tender years doctrine is the factor of the gender of the child. This factor can play a part as the child grows older and enters adolescence. Mississippi courts have noted that growing and maturing boys could need guidance from their fathers, as well as maturing girls from their mothers, and that this needed help and direction should be considered when making a custody decision. Parker v. South, 913 So.2d 339 (Miss. Ct. App. 2005).

The health, age and sex of the child factors in child custody cases may seem like afterthoughts compared to some others that will follow in this series, however these can still play a pivotal role in a chancellor’s decision in awarding custody. If a parent is able to spend more time with a child affected by illnesses, a chancellor will consider that. If the child is entering a confusing and frustrating time in their lives and one parent is better suited to help them through it, a chancellor will consider that as well. Many people will probably skim over this factor because it is often not a “smoking gun,” but it is still worthy of consideration, because it can play a large role in the outcome.

Introduction to Albright: The Tender Years Doctrine

January 10th, 2018

One of the more common misconceptions we hear from clients in our office is that there is an inherent bias toward the mother in child custody actions. While it is often true that the mother has been the child’s primary caregiver, there are still 11 other factors that courts weigh to make the decision that is in the child’s best interest. However, before these factors were spelled out in Albright v. Albright, Mississippi courts often made this decision with emphasis on the tender years doctrine.

The tender years doctrine basically stands for the idea that during a child’s “tender years” (birth to around 3 years old), that the child’s best interests were served by remaining with the mother. Under the common law, fathers had an absolute proprietary right to the custody of his legitimate minor children. Later, the law shifted and began to favor the mother. The case of Johns v. Johns established this presumption in Mississippi law, stating that “In all cases where any child is of such tender age as to require the mother’s care for its physical welfare it should be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared for by other persons.” Johns v. Johns, 57 Miss. 530 (1879). Of course, this seems closely related to breastfeeding. For many years, courts in many states followed this as a rule instead of a factor in custody.

Later, the tender years presumption came under scrutiny from courts around the United States. Some of the concern from courts came from the supposed discrimination against fathers in child custody cases based solely on their sex. The Mississippi Supreme Court recognized the decline in other state courts’ consideration of the tender years doctrine, noting that although the doctrine should not be disregarded, that other factors should be considered as well. These factors were outlined in the case of Albright v. Albright. In that case, the Court noted that while the age of the child was an important factor in the decision of the child’s custody, that it wasn’t rational to base that decision solely on age. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). Later in the opinion, the Court laid out the factors that should be considered in a child custody case, and those are the factors used to this day.

Our office often receives calls from people who are simply ill-informed about the decision-making of courts in child custody actions. Due to this, our office feels that people deserve to know what courts actually use to make that huge decision. Following this blog post, we will be publishing a new post about each of the factors considered when hearing the case from each party that will change that child’s life for good. If you or someone you know has a question about the Albright factors, or you’ve simply always heard that the child goes with the mother, call the Law Office of Matthew Poole. Our office has the knowledge of these factors and their application to answer any question you may have. Thank you, and please continue to read the rest of our Albright factor series that will be published over the coming weeks.

Minimums and Maximums in a Child Custody Case

January 4th, 2018

First of all, our office would like to wish you and your loved ones a happy New Year, and we hope your holiday season was a time of relaxation and fellowship with those you care about. The beginning of the year is naturally a busy time for our office, as we receive many calls from both existing and prospective clients reenergized from vacation to pursue their domestic case. When going through a child custody case, there is obviously a minimal and a maximum effort you can put forth. Our office feels that clients should know what these two efforts look like in order to know that their case is being handled with the correct level of diligence.

As you can probably guess, the minimum effort required in a child custody case is filing a petition for custody and a motion for temporary relief. Filing the complaint starts the process, and a temporary hearing is where the judge awards or denies relief and sets forth an order for the parties to abide by until that temporary order is replaced by a more permanent one after the case has been fully heard. Sometimes, this is all effort required, as the parties may find it easy to obey that court order and see no reason to go back to court. However, this is the exception and not the rule. Putting forth full effort in a child custody case requires diving into the discovery process with both feet forward. This starts with the issuance of interrogatories, requests for production of documents, and the noticing of depositions.

Interrogatories are questions about the subject matter of the case that the other side has 30 days to answer in writing. These questions often relate to witnesses, employment of the responder, and explanation of claims found in pleadings. Interrogatories lay the groundwork for a child custody case, and so issuing them is a step in the right direction of pursuing a custody case. Listing witnesses is especially important, because if you do not list a potential witness, that person cannot testify at trial.

Discovery also includes requests for production of documents. The documents sought in this phase of discovery will provide the bulk of the evidence used at trial. These requests often asked for are financial documents such as bank and credit card statements, utility bills to show expenses, and tax returns. Many clients often express reluctance in producing these documents, however an important part of a child custody case is showing that you are able to financially provide for that child. Like witnesses, requesting and disclosing proper documents is very important, because you will waive your right to use them at trial if you do not.

Another helpful discovery option available to you is the well-known tool of a deposition, which is a scheduled interview with the other side in the presence of a court reporter. The advantage of conducting a deposition is twofold. First, it helps your attorney gauge the other side’s reaction to a question in real time, as the other side has no time to prepare an answer as in written discovery. Second, it helps to nail the other side down to a narrative of their case. That story must either be adhered to or later contradicted, which can call into question that person’s credibility.

As with many things in life, in a child custody case you can either put forth the minimum effort required or go beyond that. It may be that filing a petition and a temporary order works out for you and gets you the relief you seek. However, life is messy, and cases as volatile as child custody will most likely require more effort. Engaging in discovery and applying pressure to the other side to match your effort is the best way to come out ahead in a child custody case. If you have questions about what should be done in your child custody case, call the Law Office of Matthew Poole. Our office has the knowledge and experience to give you a complete and honest answer to any domestic law question you may have.

Winning and Losing a Custody Case

December 29th, 2017

The smallest events can have a large significance on the outcome of a situation. A custody lawsuit is no different, as the testimony of one witness or the smallest behavior by a party can be the deciding factor in who gets custody of a child. Our office has had many cases hinge on a seemingly insignificant occurrence or detail. Our office wants our current and future clients to know the impact that things can have on their custody hearing, and what they can do to influence the outcome.

Custody cases are a naturally volatile process, and when you introduce the emotions and concerns that these cases raise, they become even more so. One part that may be hard on the parties is a temporary visitation and custody order that the court puts in place until a trial on the case is heard. Having contact with the other person for exchange of a minor child for visitation can be a tough thing for people to go through, as many former romantic partners harbor some sort of ill will toward each other. Mississippi Courts have held that interference in a parent’s visitation schedule may amount to a material change in circumstances in extreme cases. Ash v. Ash, 622 So.2d 1264, (Miss. 1993). Though it may be difficult, the best thing is to adhere to the court’s order as closely as possible. Court orders are not suggestions, and keeping in line with that order will only help your case.

Another common thing we see in our office is disparagement of one parent by the other. Mississippi courts have held held that, if extreme enough, parental alienation or disparagement can amount to a material change in circumstances that can be enough to award custody to the non-offending parent. Potter v. Greene, 973 So.2d 291, 293 (Miss. Ct. App. 2008). It is natural to want to make your case to both the Court and your child, however that energy is better spent showing the child why they should live with you, and not just why they shouldn’t live with their other parent. These remarks can be very damaging to the relationship between the child and the other parent, as well as to the child themselves.

There is simply no way around it: custody lawsuits are tough. They combine they already stressful process of a lawsuit with decisions that will impact a family’s life for the foreseeable future. Although both parties to these cases care about the welfare of the child, too often their disdain for each other shines brighter than that concern. Our advice is to be careful of your conduct during a custody lawsuit. This is simple advice that when combined with the highly emotional nature of these cases can become difficult to keep in perspective. The other side is just as invested as you are, and if they believe reporting your behavior to the court will help their case, then they will. If you have questions about what to do outside of the courtroom in your custody case, call the Law Office of Matthew S. Poole, and we will help you in any way we can.

Questions for Your Attorney? Ask Them!

December 21st, 2017

A lawsuit can be a confusing process for someone who has never been involved in one. They involve a language totally different than the everyday vocabulary of most people. Attorneys usually expect questions from clients because of the large amounts of questions they themselves had at the outset of their career. Divorce lawsuits are especially stressful, as they delve deep into some of the most well-guarded areas of a person’s life. Knowing what questions to ask your attorney can help very much in cutting that stress down, and to help you make sure your case is in good hands. Here are some examples of questions you should be discussing with your attorney.

Question #1: Have you issued discovery, and what did that discovery request?

Discovery is the part of the lawsuit where attorneys send requests for information to the opposing side to be answered. This often involves interrogatories, which are questions about the case to be answered, and requests for production of documents that may be used as evidence at trial. Discovery is an extremely important part of a lawsuit, as it gives a party the time to possibly object to some requests and to carefully build their case. Asking about the issuance and substance of discovery is a way for you to make sure that the attorney you hired is taking the right steps to build your case.

Question #2: What was included in the pleading?

Pleadings are how you ask the court for the relief you want, and therefore should be done with care and should include every remedy possible. For example, there are twelve grounds for divorce in Mississippi. Asking questions about those grounds can help your attorney know what grounds you may have, which will therefore help in crafting the best pleading possible for your case. It’s your story, so help your attorney tell it.

Question #3: What witnesses should I call to help my case?

The answer to this question from an attorney will most likely be “it depends.” Witnesses may testify to things they have personally seen or heard as well as things told to them. You know better than anyone the people in your life who may be able to help present your case, and your attorney’s past experience may help in discovering other potential witnesses as well. One witness’s testimony can be a huge difference-maker in a domestic case.

Question #4: What documentary evidence should I produce?

One question our office receives from clients almost without exception is “What do you need from me?” This often depends on what the other side asks you to produce. In domestic litigation, common documents requested involve finances and contact between a party and their spouse or child. Your attorney should know what document requests you can object to and which ones you will most likely need to produce to the opposing side. These documents will be the foundation of your case, and you should ask your attorney their plan for building that foundation.

Question #5: What things specific to my case can we ask the court to order?

Every situation in domestic litigation is different, as the experiences, wants and needs of different families intersect in each case. You should be asking your attorney what you could possibly ask the court to order that helps you in your situation. The attorney’s role in this is twofold: the attorney should have a basic idea of what the court will or won’t order while also offering a less emotional presence making the request. When a decision affects your family, you want to make sure it is the right one.

Your attorney’s role in your lawsuit is to help you navigate the rules and procedures of a lawsuit, and asking questions can help you give your attorney all the help they need in building your case, as well as making sure your attorney is properly representing you. Lawyers expect those questions, so ask them! Many lawyers will either know the answer, or admit that they don’t and will find you the answer. In lawsuits, the right questions can be the difference between a good result or a bad one. If you have questions about your domestic case, call the Law Office of Matthew S. Poole. We will be glad to help you in any way possible.