Posts Tagged ‘abuse’

Domestic Violence as a Bar to Custody/Visitation Rights – or Not?

Thursday, May 31st, 2018

According to the National Coalition Against Domestic Violence, there are approximately 10 million people physically abused by an intimate partner in the United States every year. Unfortunately, 1 in 15 children are exposed to this violence and 90% of these children personally witness the incidents. It is no secret that the effects of domestic violence extend far beyond physical injury to trigger mental illness, substance abuse, and even suicide. With this in mind, courts typically find that it is not in the best interest of a child to be placed in the physical custody of a parent who has a history of committing domestic violence.

A “history” of domestic violence includes not only a pattern of abusive behavior, but also any isolated incident that caused “serious bodily injury” to a partner or another family member. However, it is not impossible for people with this kind of past to get physical custody of their children. In fact, a court may find that parental custody would be in the best interest of the child even if both parents have a history of domestic violence. According to Mississippi Code § 93-5-24(9)(a)(iii), the court may consider the following factors when determining whether or not physical custody will be awarded to a parent with a history of domestic violence:

(1) Whether the perpetrator of family violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse or such other circumstances which affect the best interest of the child or children;

(2) Whether the perpetrator has successfully completed a batterer’s treatment program;

(3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;

(4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;

(5) If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and

(6) Whether the perpetrator of domestic violence has committed any further acts of domestic violence

If custody is not awarded to the parent with a history of domestic violence then visitation may be allowed instead. Generally, the court can mandate any condition that it deems necessary in order to ensure the safety of a child during visitations. Conditions may include, but are not limited to, supervision of the visitation, parent’s restraint from drug and alcohol use during and for twenty-four hours prior to the visitation, or prohibited overnight visitation with the parent.

Another rather interesting option the court has regarding visitations is to require payment of a bond for the return and safety of the child. In other words, the parent would pay a fee to take the child and then receive the money back once the child was returned without harm… Compared to the alternatives, this option often seems a bit out of place. For example, one may ask whether the safety and welfare of a child is really guaranteed by the leverage of a monetary payment. However controversial this option may seem, it is rarely used and is usually a last-resort measure. We must trust the chancellors of Mississippi to use the highest discretion to apply this option appropriately.

“Ne Exeat” (Latin for “do not leave”) security bonds are used to ensure the safe return of a child by preventing another party from leaving, or removing the child from, the jurisdiction of the court or state. Although Mississippi lacks a statutory provision for these bonds, they could still be required through the use of a chancellor’s broad equitable powers.

Ultimately, parents may still be granted physical custody or visitations with their children despite a history of domestic violence. If you or someone you know has a question about the custody or visitation rights of a parent with a history of domestic violence, please don’t hesitate to call us. The Law Office of Matthew S. Poole is highly experienced in these types of situations and we would be happy to help.

Written by Jessica Jasper, J.D. Candidate, Class of 2020, Mississippi College School of Law

Parental Alienation: Why You Should Act Fast

Thursday, May 3rd, 2018

Pretty regularly at our office, we unfortunately have child custody cases where one parent continually makes derogatory remarks about the other parent in front of their child. This is one of the worst things a parent can do when wanting to obtain custody, especially when the child is not old enough to legally have a preference with which parent he/she would rather live with. What many parents do not realize is that a parent has an inherent duty to foster and facilitate the relationship between their child and that child’s other parent. Disparaging the other parent can not only hurt their case in the eyes of a chancellor, but it can also adversely affect the child. From a chancellor’s perspective, belittling the other parent in an effort to negatively impact the child’s relationship with them is wholly improper and unacceptable.

When the “brainwashing” of a child by one parent gets so bad that it manipulates the child into disliking or not wanting a relationship with the other parent, there is more than likely a case of parental alienation. Parental alienation is a term used by child custody lawyers and child psychologists alike to describe what happens in situations where a parent has made conscious efforts, by negative words or actions, to upset their child’s relationship with the other parent. An example of this would be where a mother has spoken badly about a father, made derogatory remarks about him, or even lied about him to the child, all in order to alter that child’s feelings towards his dad, so that the child would not want to live with him.

Other examples of behaviors that can cause parental alienation include one parent discussing details of the parent’s relationship, scheduling the child’s activities during the other parent’s visitation time, not informing the other parent the times of those activities in order for them not to attend, denying the other parent important school and medical records, and giving the child ultimatums encouraging them to pick one parent over the other. This type of behavior has major consequences, and if not addressed as soon as possible, can permanently destroy a child’s relationship with their parent. A child’s mind is very susceptible, especially to a person that they instinctively trust – as they would a parent. Prolonged exposure to this type of influence deteriorates little by little any chance of a relationship they might have had with one of their mother or father.

In years past, parental alienation issues could only be brought up when there was a non-disparagement clause in the custody order. This prevented parental alienation from being any more than a contempt issue. Now, however, chancellors in Mississippi consider disparagement through the parenting-skills factor under Albright. With disparagement now being a consideration in Albright, it constitutes a material change sufficient for modification of custody.

Isolating a parent from their child is serious, and in the end, it does more damage to the child than it does to the other parent. To put it plainly, parental alienation is a form of child abuse. Chancellors know this, that is why any hard evidence that a mother or father is molding their child’s emotions negatively toward the other is met with extreme prejudice. Absent neglect and endangerment, nothing can kill a parent’s chances of being awarded custody more than harmfully reshaping their child’s relationship with their mom or dad. If you believe that this is happening to you, or someone you may know, please give us a call. We have the expertise to handle parental alienation cases, and any of your child custody needs.

Matthew Poole is a Jackson, Mississippi domestic attorney who specializes in family litigation. He was admitted to practice in 2004.

Don’t Just Ask for a Restraining Order

Sunday, April 22nd, 2018

Have you been physically assaulted by your spouse or the father (or mother) of your child? Have you contacted the local police and other authorities regarding the abuse? Oftentimes children are the primary victim of their own parents’ hatred of one another. If your children have witnessed one or more incidents of physical abuse, they are likely viewed by Mississippi law as victims of abuse and neglect themselves and have multiple avenues of recourse. While courts with criminal jurisdiction such as Justice Court, County Court, and Municipal Courts are able to provide you with a peace bond or other means of restraining your spouse/opposing parent from the harassment and stalking that so often accompanies domestic abuse, they have severe limitations.

Unfortunately, the separation of powers between the various types of courts in Mississippi can present additional challenges to the actual victims of domestic abuse. Mississippi Chancery Courts are of limited jurisdiction of all matters set forth in §159 of the Mississippi Constitution of 1890. The State of Mississippi is comprised of twenty (20) Chancery Court Districts (see §9-5-3, Mississippi Constitution, 1890). There are six (6) specific subject-matter areas in which Chancery Court exercises exclusive, complete, and ongoing jurisdiction, including “All Matters in Equity” and “Minor’s Business”. “Equity” is an often confusing and misinterpreted term. According to Black’s Law Dictionary (Seventh Ed.), equity has a four part definition, the first two of which are particularly telling as to the depth and breadth of Mississippi Chancery Court subject-matter jurisdiction. First, Black’s asserts that equity is “Fairness, impartiality, evenhanded dealing”. Secondly, It is “The body of principles constituting what is fair and right; natural law”. Clearly equity isn’t a lucid concept, rather a notion that is reflective of available recourse as to principles of justice.

Victims of domestic violence are able to obtain relief from Chancery Court per the procedure set forth in Mississippi Code Annotated §93-21-3 as well as those governed by Mississippi Rule of Civil Procedure 65. As codified, the victim of domestic violence, married or unmarried, may go so far as to award the abused parent possession of the home or to require that the perpetrator provide adequate housing including utilities and other related expenses. Also, Chancellors are empowered by statute to encumber jointly held assets and make adequate provision for the care and support of minor children as well as the victim. Custody of the children, child support, and visitation are all within the realm of properly exercised equitable judicial discretion. Equity permits that Chancellors have broad authority in the spirit of protecting those who cannot protect themselves.

In short, Mississippi Chancery Courts are empowered by legislative proclamation to address a variety of issues that adversely affect children, as they too are considered victims of domestic abuse. Often it is assumed that a court other than Chancery Court is able to afford domestic violence victims some level of redress outside of the scope of a restraining order itself. However, as previously stated, the exclusive nature of Chancery Court jurisdiction as to “Minor’s Business” and “All Matters in Equity” precludes other arms of the judiciary from ordering such relief to victims.

The victim of domestic violence not only is afforded relief in various forms both equitable and by statute, but retains significant advantages in the determination of both temporary and physical custody. Mississippi Code Annotated §93-5-24 provides in pertinent part that;

“there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest (i.e. in regards to the commonly cited Albright v. Albright factors) of the child to be placed in the sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered. This presumption may only be rebutted by a preponderance of the evidence.”

It is clear that victims, parents and children alike, are afforded significant protections from those who would harm them. Although the presumption that violence perpetrators are not proper custodians or decision-makers for a child may be overcome it presents a sufficiently robust obstacle to those persons who have been restrained, enjoined, or otherwise found civilly liable for home-trauma. To be clear, the ball is not in the abuser’s court. Our office is fully able to address all of the challenges that domestic violence creates.

If you or someone you care about is a domestic violence victim and is in need of an attorney with experience as to the best path forward, my staff and I are ready to provide you with the resources to obtain justice. Our office exclusively handles domestic litigation and is unlike so many other firms who lack the client base to remain focused on these matters. We have 14 years of experience in this sub-category of Mississippi law and the will, desire, and knowledge to ensure that equity will be done.

Matthew Poole is a Jackson, Mississippi domestic attorney who specializes in family litigation. He was admitted to practice in 2004.

One Without the Other? – Domestic Violence Divorce and Child Custody

Tuesday, May 9th, 2017

As has been discussed in this blog and often in recent Mississippi news, the state now allows divorces to be granted for the grounds of domestic violence. While this is certainly a victory for abused spouses of Mississippi, the question now arises of how this will affect child custody decisions made by courts in the wake of a divorce granted on these new grounds. While we believe we know the answer, it is important for Mississippians to know the possible avenues that a court may take.

The amendment to the grounds for divorce as approved by Governor Phil Bryant add the following language to the ground for habitual cruel and inhuman treatment:

Seventh. Habitual Cruel and inhuman treatment, including spousal domestic abuse. Spousal domestic abuse may be established through the reliable testimony of a single credible witness, who may be the injured party, and includes, but is not limited to: That the injured party’s spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party, or that the injured party’s spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or That the injured party’s spouse engaged in a pattern of behavior against the injured party of threats or intimidation, emotional or verbal abuse, forced isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking as defined in Section 97-3-107, if the pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.”

When courts make decisions regarding child custody, they use the factors from Albright v. Albright, which laid out thirteen factors for custody decisions, the most important of which being what is in the best interest of the child. Those factors are available for your viewing elsewhere on our website. The question that the law faces with the passing of this domestic violence amendment is whether the offender in a divorce granted for domestic violence is presumed unfit to have custody of children, or if that behavior is simply another Albright factor.

One major question that could impact a court’s decision is the level of domestic violence that is required for this presumption to be created. Habitual cruel and inhuman treatment, long a ground for divorce in Mississippi, allows for a divorce to be granted for that treatment after only one instance. Kumar v. Kumar, 976 So.2d 957, 961 (Miss. Ct. App. 2008). While this may be enough to award a spouse a divorce, is it enough to rather automatically award that spouse custody as well? This may be an instance where a court would use the evidence of that treatment that granted the divorce as an additional factor in a custody matter as opposed to a mechanical application of the law.

A more recent development in this question is the language to the domestic violence amendment that allows a divorce for the use of nonphysical behavior towards a spouse such as threats, intimidation, emotional or verbal abuse, and even stalking. While these behaviors certainly affect the relationship between spouses, does that behavior go far enough to create a rebuttable presumption that the offender is unfit to care for their own children? Mississippi courts will soon have to decide.

Another question still is the proper standard of review that courts should use when making these determinations. In child custody cases, a chancellor’s findings will not be reversed unless manifestly wrong or the improper legal standard was applied. Mabus v. Mabus, 847 So.2d 815, 818. The Mississippi Code provides some guidance as to custody and domestic violence, stating that in a child custody proceeding, “there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody of a parent who has a history of perpetrating family violence.” Miss. Code Ann. § 93-5-24(9)(a)(i). You will notice the statute includes the word “history” when speaking of domestic violence. Courts will have to decide whether that “history” can be established by one instance, such as in divorces for cruel and inhuman treatment.

With that language, it would seem that the rebuttable presumption would arise the same way during a custody proceeding following a divorce on domestic violence grounds. Our feeling is if a chancellor awarded custody of a child to a parent that has been implicated in a domestic violence incident, that most courts would see that decision as “manifestly wrong,” and therefore would overturn that chancellor’s decision. In addition to lowering judicial economy stemming from appeals of those errors, this would not be fair to any minor involved.

While this domestic violence amendment obviously makes huge strides in the realm of the grounds for divorce in Mississippi, it remains to be seen what effect it has on child custody decisions. In our opinion, that rebuttable presumption will still arise, and courts will take domestic violence as grounds to not award custody to the offending party in such a matter. This practice seems to be more in line with the polestar consideration of child custody matters, which is the best interest of the child. Our office will be glad to consult with you regarding matters such as these, and with any other domestic matter you may face. Please feel free to contact our office at 601-573-7429.

Kenneth B. Davis, Mississippi College School of Law J.D. Candidate 2017, Law Clerk to Attorney Matthew S. Poole.

Twelve and a Half Reasons Why

Monday, April 17th, 2017

A spokesperson for Mississippi Governor Phil Bryant has stated that Bryant will sign into law the proposed amendment to the state’s divorce statute that will allow more divorces in cases of domestic violence. The passing of this bill follows the death of a similar amendment, and the media firestorm that erupted across the state, largely aimed at Representative Andy Gipson (R-Braxton).

As mentioned in our previous article, this amendment adds the language of “including spousal domestic abuse” to the seventh ground for divorce in Mississippi – habitual cruel and inhuman treatment. Another change to current Mississippi divorce law is the ability for the abused spouse to serve as a witness of domestic violence. The burden of proof is high, but when corroborated by scientific or medical evidence, the burden lessens.

The standard of proof passed in this amendment shows the importance of quick action in situations of domestic violence. If you or someone you know experiences domestic violence, seek medical help right away if there are injuries that can be used as evidence. Do not wait for those signs of abuse to fade before seeking help. A bruise or a cut may be the difference between being believed about spousal abuse or being waved off as crying wolf.

This seems like a good measure taken by the Mississippi Legislature. It allows spouses who need to leave a marriage to do so easier than before, while still providing enough evidentiary standards to prevent fraudulent or spiteful divorces. This gives spouses a better way to leave a dysfunctional marriage, while protecting people’s names and reputations from false attacks and gossip.

Just as important as knowing what this bill changes is what it has no effect on. The behavior behind a habitual cruel and inhuman treatment claim must still rise above mere unkindness, rudeness, or want of affection. Two spouses simply not getting along is still not grounds for a divorce in Mississippi unless brought through the completely agreed upon route of irreconcilable differences. While this amendment does make divorces easier to obtain through habitual cruel and inhuman treatment, the other grounds are not affected, and divorces can still be difficult to obtain in Mississippi.

We tell our clients this because our firm believes in giving clients realistic expectations about the reality of their case. Mississippians, and legal clients in every state, deserve to be told the truth, and deserve the hardest work that can be provided to them. Our office understands that divorce can be a scary thing. We are here to serve you through that dark hour. If you or someone you know experiences domestic violence or any other recognized ground for divorce in Mississippi, we encourage you to seek legal help, and our office will be happy to serve you in any way possible.

And Now We Wait – Domestic Amendment Passes Mississippi House

Sunday, March 19th, 2017

Last week, the Mississippi House passed a bill addressing domestic violence as a ground for divorce in the state, just one month removed from killing such a bill. The bill that would modify the grounds for divorce to include domestic violence passed in the Senate, but was not even voted on in the House. Representative Andy Gipson took the brunt of the criticism, largely because of his remarks that if domestic violence is occurring, the perpetrator needs “to have a change of heart” rather than be divorced from.

The specific language of the bill that was killed by the House added the words “including spousal domestic abuse” to the current Mississippi divorce ground of habitual cruel and inhuman treatment. Gipson cited the “floodgates” of divorce that would be opened with the bill’s passage as his reason for opposing the amendment. Strangely, the language of the new amendment that Gipson approved seems to extend beyond that of the bill he opposed.

The new amendment allows for a divorce to be granted when both abusive physical and non-physical conduct is taking place in a marriage. The “abusive physical conduct” section provides for a divorce for the cause of habitual cruel and inhuman treatment to be granted to the injured party when that party’s spouse has attempted to cause or has purposely, knowingly or recklessly caused bodily injury to that party. That proposed section also includes putting the injured party in fear of imminent serious bodily harm.

The “abusive non-physical conduct” section is where the new proposed amendment goes further than previous legislation. This section allows a divorce for habitual cruel and inhuman treatment to be granted where a pattern of abusive non-physical conduct such as threats, emotional or verbal abuse, forced isolation, sexual extortion, stalking, and economic financial abuse.

Several parts of this new amendment really stick out and will most likely be the catalysts for this amendment to affect change in Mississippi divorce law. For abusive physical conduct to be grounds for a divorce, the conduct must be established through the reliable testimony of one or more credible witnesses, and any of those witnesses may be the injured party. This is a huge sentence of this amendment, as the majority of domestic violence happens behind closed doors with only the two spouses present. This gives the abused spouse more ammunition than previously available to pursue a divorce.

The standards of proof also play a large part in the new changes. When reliable testimony comes from only one credible witness (who can be the injured party), the standard is clear and convincing evidence, which is the highest burden of proof used in civil courts. When that single credible witness’s testimony is corroborated by other credible physical or forensic evidence, the burden of proof lowers to preponderance of the evidence, or “more likely than not.”

Our previous article talks about some of the behavior that divorces have been granted under habitual cruel and inhuman treatment. Mississippi courts have held that this may include only one instance, and that emotional abuse can be considered enough to grant a divorce on this ground. The Mississippi case of Harmon v. Harmon involves a divorce granted for grounds similar to those described in the “abusive non-physical conduct” section of the proposed amendment. In that case, the husband exhibited stalking behavior, often appearing at the wife’s workplace and following her on lunchbreak. He also often used disparaging language toward her. The wife was granted a divorce, showing that Mississippi courts are willing to grant divorces for habitual cruel and inhuman treatment for non-physical abuse.

While the substance of the amendment will not alone provide a large change in the operation of Mississippi law when dealing with divorce, there are two huge parts that we believe will have the highest impact. The first is the provision that allows evidence of domestic violence to be offered by a single credible witness which may be the injured spouse. As mentioned before, much of domestic violence happens without witnesses other than the spouses, and allowing this evidence to come from the injured party helps abused spouses immensely.

The second and not-so-obvious benefit from this amendment is the ability it gives normal, everyday Mississippians for exploring their options. Many instances of domestic violence go unreported for any number of reasons. Often, abused spouses may not even consider speaking with an attorney out of fear that their spouse may find out, possibly leading to physical or economic abuse. Someone being abused may have had a bad experience with the legal system or just attorneys in general. There are numerous reasons people will not speak with lawyers. Not every Mississippian has access to the legal resources that attorneys do, or even the ability to read and fully understand the state’s divorce statute. If an abused spouse believes that speaking with an attorney too risky for whatever reason, explicitly including provisions regarding physical and non-physical abuse allows that person to read the statute themselves and have a better understanding of their rights.

The proposed amendment has passed in the Mississippi House, including the vote of Representative Gipson. Whether his agreement to this amendment is the result of his recent public crucifixion or a genuine belief that this amendment is more satisfactory than the one he killed is of no consequence. If this proposed amendment is voted for by the Mississippi Senate, it will become part of the divorce grounds in the state. This amendment is good for the people of Mississippi, as it provides more understanding into what our divorce law provides as well as more options to those experiencing domestic abuse.

As mentioned in our past articles, if you or anyone you know is experiencing abuse in a marriage, we encourage you to immediately seek help. Our office will be happy to help in any way we can. For help in combating abuse or any other family law problem, please call the Law Office of Matthew S. Poole at (601) 573-7429.

By Kenneth Davis, J.D. Candidate 2017.  Law Clerk to Matthew Poole.