Posts Tagged ‘Advice’

To Move or Not to Move; The Million-Dollar Question

Wednesday, July 4th, 2018

Our office frequently receives questions from both clients and curious would-be custody litigants as to whether moving from Mississippi will adversely impact their custody case and the corresponding rights they have to custody of their children. As expected, there is no simple answer to complex problems that life often presents parents and child custodians. However, a brief review of the applicable law does shed much-needed light into the darkness that accompanies ignorance of Mississippi custody law.

One can refer to the phenomenon as “home court advantage” or “home state preference”, but at the end of the day, the label is not what defines impact on parents’ and childrens’ lives. When a parent moves outside of Mississippi, the million-dollar question is always whether that move will trigger a potential modification of custody of the child/children. Our analysis and estimation of legal ramifications of moving must begin with the few things we can know with certainty. I will begin by stating with zero equivocation that I have recently seen a dramatic increase in litigation wherein the custodial parent moves far away from Mississippi.

The well-settled standard for modification of physical custody of a minor child (or multiple children) is relatively straightforward on its face: when custody has been awarded to one parent (by a court of competent jurisdiction) modification will be allowed ONLY upon a showing of:

1. A material change of circumstance—to be distinguished from a mere change which is not evocative of the well being of the children involved.

2. The material change in circumstance must demonstratively adversely affect the welfare of the child/children.

3. That a change in custody must be in the best interests of the child/children. {Polk v. Polk, 589 So.2d 123 (Miss. 1991), Pace v. Owens, 511 So. 2d 489 (Miss 1987)}. In Pace, the Supreme Court mandated that Chancellors make specific findings of fact in support of any decision to modify physical custody of children. All three prongs above must be addressed with specificity in the official court record.

It is notable that the standard for modification of custodial rights is applied in a different manner wherein the parents have joint physical custody and one parent makes a unilateral decision to leave Mississippi’s jurisdiction. The burden of the remaining parent is thereby reduced and there is no longer a requirement that proof demonstrate an adverse affect on the children, thereby prong #2 above would be null and void under these circumstances. McKree v. McKree, 486 So. 2d (Miss Ct. App. 1998).

So the answer to our query is well settled? Not so fast. It appears to myself and my clerk, the Honorable Kenneth Davis, Esq., that Chancellors across our great state have significant leeway and remarkable discretion in making determinations as to whether the “trigger” of modification of custody has been met, thus allowing a parent remaining in our state to initiate a well-founded claim for custody modification. Can the move of a custodial parent meet the threshold burden bestowed upon a non-custodial parent to achieve modification child custody? The best answer is probably, but not certainly. Most important is to recall that the POLESTAR (most important) consideration for any Chancellor is what is best for a child {Albight v. Albright, 437 So. 2d 1003. (Miss. 1983)}. See also Miss Code Ann. §93-5-24 (1972, as amended). The totality of circumstances will dictate the outcome in the vast majority of domestic litigation. It is reasonable and understandable that litigants want clarity and desire certainty. Finality is incredibly valuable. However, would-be litigants that are able to appreciate the big picture and viewpoint of Chancellors (who are the “super-guardian” of all children in their respective jurisdictions) and the subjective elements are most often successful in navigating treacherous child-custody matters.

I have 14 years of experience in domestic litigation and can say without shame that clear answers are often elusive. There is a best path forward in any family issue that you are facing, and my staff and I are dedicated to fight to vindicate your custodial rights. While there may be no simple answer, the path forward is always based in love for your children and a deep desire to impact their well-being in a meaningful and permanent way. It can be done. Where there is a will, THERE IS A WAY.

Matthew Poole is a Jackson, Mississippi domestic relations attorney with 14 years of determined focus in family law and domestic litigation with an emphasis on case evaluation and analysis.

Best Quick Tips in a Contested Divorce

Wednesday, June 27th, 2018

If you are going through a fault-based divorce, you already realize that it can be a cumbersome and frustrating process. In 14 years of practice, it never has ceased to amaze me that potential divorcees so often greatly underestimate the burden, stress level, and emotional turmoil that divorce causes, particularly when child custody is a hotly contested item. Gone are the days of simplicity in domestic separation. In our modern world, husbands are by far more likely to seek custody of children and raise fault grounds against their wives. Also, it is fundamental to understand the importance of shifting family dynamics. Now it is not uncommon to have a stay-at-home husband and a professional wife who has supplanted the traditional husband’s role. I have compiled a short list of simple advice that can save you time, legal fees, and stress that accompanies each and every contested divorce (particularly those that impact the innocent lives involved–your children).

Make sure you keep up with your witness’s phone numbers and addresses. Also, if you are aware of any social media accounts (Twitter, Instagram, Facebook, Google Plus, etc.) or website information pertaining to your spouse, obtain as much information as possible. If you expect your lawyer to locate these for you, be prepared to see additional legal fees.

DO NOT throw away any bank, credit card, tax, investment, or retirement account information. It is easy to hide and can vastly increase the cost and burden of divorce.

If you are in a violent relationship, seek to record any conversations/events that will prove this to the court. Also, make sure you back them up in at least one other device.

Consider hiring a private investigator. Their hourly rates are often cheaper by far than even the least expensive attorney. If you need to access a good one, call me.

Don’t let your emotions get the better of you. Fear, anger, disappointment, and grief are usually present to one extent or another in any divorce.

Don’t assume that you are not entitled to some form of alimony, be it lump-sum, reimbursement, periodic, or rehabilitative. Speak to an experienced attorney as to whether you have a valid claim.

Don’t discuss in any negative way your frustrations with your children; it will most likely bite you. Kids are innocent and have no place involved, no matter how tempting it may be.

Please contact us if you would like to discuss any custody, asset distribution, or alimony-related matter and rest assured we will turn over every stone, leaving none unturned, to your advantage. I have 14 years of experience of focused practice in domestic relations law and can help you determine the best path forward and through these stressful situations.

Matthew Poole is a Jackson, Mississippi domestic relations attorney with 14 years of focused experience in family law with an emphasis on litigation and case assessment.

 

Prenuptial Agreements are Always Enforceable, Correct?

Wednesday, December 28th, 2016

In Mississippi, as well as every other state, many couples seek the protections and predictability that can often be offered by entering into a contract prior to marriage, commonly referred to as a prenuptial agreement. While prenuptial agreements are generally valid and enforceable, there are exceptions that a client needs to be aware of as to the terms of that agreement prior to entering into such an contract.

The Mississippi Supreme Court has ruled that any prenuptial agreement is enforceable just as any other contract. However, the execution of the agreement must be deemed to be fair. The general consensus is that fairness indicates that the agreement has to be entered into voluntarily and with full disclosure of both the husband and wife’s financial assets. It’s clear that fairness can encompass many different ideals; however, the providing of entire disclosure as to the parties’ finances and/or the knowledge of each other’s financial state is a paramount concern when entering into a prenuptial agreement. Fairness can also be affected by whether or not the parties are represented by counsel, or whether the parties had time to review the agreement prior to its execution. In other words, if either party is under duress in signing the prenuptial agreement, it is possible that the court may invalidate certain terms or conditions contained in the prenuptial agreement. The education of the parties is also a factor in whether or not the agreement was sufficiently explained or so complicated that an explanation as to the terms was necessary. It is important to note that execution of the agreement could be considered fair by a chancery court even in the case that either side is not represented by counsel.

Our general advice to any client who is seeking the protections of a prenuptial agreement is to contact an experienced Mississippi attorney who is able to guide you through the potential landmines that can occur in the prenuptial contracting process. It is also important that clients recognize that prenuptial agreements have to be consistent with public policy and cannot fly directly in the face of clear statute in state of Mississippi. Some examples of a prenuptial agreement being deemed invalid by chancery court would include not only cases where the contract between the husband and wife are directly inconsistent with Mississippi statute, but also when the parties have contracted to a matter which is deemed at odds with public policy. Although public policy exceptions are less likely to occur, it is important to note that a court always has the ultimate say in determining whether or not the terms of the contract are fair and just. A court could also deem certain terms under a prenuptial agreement be deemed unconscionable. All of the laws and regulations related to any contract also apply to prenuptial agreements. Therefore, prenuptial agreements are not given specific immunity from being deemed invalid by a court simply because the parties agreed to the terms.

If you need assistance in drafting a prenuptial agreement, we are equipped to assist you in that process. We are able to help you consider the factors that may not have been considered to this point, and will be able to draft the contract in such a way that it will be deemed most likely valid if it were challenged in the event of a divorce or separation. If you need assistance with any of these matters, call the Law Offices of Matthew Poole, 601-573-7429.
Law Office of Matthew Poole

Three Common Mistakes When Dealing with the Guardian Ad Litem Assigned to Your Mississippi Child Custody Case

Friday, November 18th, 2016

First of all, it’s important to understand the basic role of a guardian ad litem in a child custody matter (a.k.a. child custody lawsuit).  If a guardian ad litem has been appointed by a Mississippi Chancellor (often referred to as a Chancery Court Judge) to investigate facts that are relevant to your custody case and make a recommendation to the court as to what they believe is in the best interests of a child, there are three common mistakes that people can and will make that can adversely impact the result and report of the guardian ad litem.   It is important to know that guardian ad litem is a latin term for “guardian at law”.  These guardians are generally appointed by the court in order to perform a fact finding expedition and make a recommendation as to the placement of physical and legal custody of a minor child or children.  It is also crucial to note that the court does not have to follow the findings of the guardian ad litem, although deviations from the general recommendations of the guardian are rare and have to be supported by substantial evidence as presented to the court.

The most common mistakes we see in dealing with our client’s involvement with guardians ad litem are as follows; not sufficiently communicating with the guardian ad litem as to the issues that need to be investigated.  For instance, we have clients that have three or four (or sometimes half-a-dozen) issues that they wish to be investigated by the guardian ad litem, but they only communicate those to us—they expect all communication to go through their lawyer (which is not unreasonable, but impractical at best).  It is important that the client take an active role in speaking with the guardian in order to facilitate the investigation and keep costs down, and it is also important that the client be able to shine a light on all of the issues that they believe are relevant to the best interests of the minor child.  It is important to stay abreast of the guardian ad litem’s progress in their investigation and the various things (i.e. factual issues relevant to custody) that they are considering in making in a recommendation to the court.

It is also important, when possible, to communicate with the guardian ad litem in writing so that there will be a substantial, provable record as to the issues that you wish to be investigated.  It is crucial to know that the more issues and the more complex issues that exist, the guardian’s investigation will have to be more extensive and often this will require that you incur additional cost due to that additional work required in performing the investigation.  

Another very common mistake we see clients make is disparaging their spouse or ex to the guardian ad litem.  This is not well-founded, and we always advise against this ill-advised conduct.  Put simply, it does not cast the disparaging parent in a positive light.  If you have criticisms of your ex’s conduct as it relates to what is best for your child or children, then those issues need to be dealt with in a mature, rational way.

It is important though that the thrust of your argument doesn’t consist of disparaging or demeaning or name calling of your ex-spouse or your ex-girlfriend or ex-boyfriend.  The child’s parent deserves respect regardless of the behaviors that you complain of.  But be objective, and make sure your focus is on what is best for your child or children, not winning the moral high ground.   Courts and domestic attorneys are very familiar in dealing with situations where the motive is not the protection of the child or children, but moral vindication—feeling that you “won”.  The long and short of dealing with your custody matter is essentially taking the objective approach; don’t be angry, don’t  be upset, don’t be overly emotional, just lay the bare groundwork  for the issues that you believe are important that the guardian ad litem consider in making in making their custody recommendation to Chancery Court.  Trust their expertise.  

The next common mistake that we see is failing to have a clear educational plan or path for your minor child or children.  You have to be engaged with your minor child in order to demonstrate to the guardian ad litem that you are the parent that is more involved in facilitating that child’s education and will continue to do so in the future.  It is not necessarily important that you have a college plan for a five year old, however it is important to actively monitor your child’s progress and address issues and short- comings where you are able to make a positive impact and help the child improve in their educational  performance.  It is also crucial to consider having a plan in place for children above seventh grade for their ultimate placement in college and potential course of study.  It is not say that you must have their entire future planned out, but addressing your child’s strengths and weaknesses in the classroom bit-by- bit is important, and will show the guardian ad litem demonstrably that you are the parent with the best ability to effectuate your child’s best interest and goals.  Most importantly, it shows that you care.

If you have a question about this article or would like to share your thoughts, please feel free to contact us at The Law Office of Matthew Poole (601) 573-7429 or matthewspoole@gmail.com.  We are best equipped to assess your situation and give you some practical advice on steps you can take to increase your odds on gaining custody of your child or children.