Posts Tagged ‘Albright factors’

Ever-Relevant…The World Wide Web

Sunday, May 26th, 2019

By: Michael Louvier

Does anyone even remember when we referred to the internet as the “World Wide Web”? That is where the “www” in the site addresses that we all visit daily originated. Back then we tried to be cool and called it “The Web”… That was back in 1990 something prior to Al Gore inventing the internet (rumored, yet to be proven).

Today the internet is as commonplace as travel by automobile. Google and Google Maps have completely replaced the phone book as the easiest and most used methods of finding a business. The computer that we all carry around in our pockets (commonly referred to as a smartphone) will deliver you the phone number, web address, ratings, directions to and almost any other information that you could possibly desire about a business. The Yellow Pages have gone the way of the buggy whip. If you don’t immediately what a buggy whip is (or was), that’s my point.

Immediate and almost unlimited access to information is what the internet delivers. Prior to the “immediate information age”, lawyers actually had to research the law in books. By using the correct search tools and key words, recent and relevant case law is literally at the lawyer’s fingertips after proper training. Today lawyers and law firms save untold amounts of money on books and paper, and they save even more time and money (client’s money, thankfully) by utilizing the internet for legal research and the online filing of pleadings, motions and other case related Court documents. A lawyer may now “e-file” a pleading in a case from his home or office laptop computer. Furthermore, he can accomplish this task at any time of the day or night, regardless of whether or not the Clerk of Court is open. Alas, the internet has made the modern law office much more streamlined and efficient.

Please do not interpret the phrase “streamlined and efficient” to mean that your divorce and/or custody case will now be “easier” or even “less complicated”. Quite the contrary, the internet has made the profession of law more complicated and more competitive than ever. The fact is, everyone has access to this information. Everyone has become more streamlined and efficient. Lawyers, litigants, Judges, and even the children caught up in a custody battle have more information at the ready than ever before. The onus is; therefore, on the lawyer to be well prepared to use this wealth of information or, if the facts gathered by the other side via the internet (Social media) are harmful, he/she must be somehow savvy enough to not allow it to burn his or her client.

As Matthew Poole has previously stated in his article “Facebook: The Great Divorce Equalizer” (posted April 14, 2019): “…a decent lawyer is only a subpoena away from obtaining every social media post and response thereto since the day you walked down that sacred aisle.” More to that point, a Subpoena Duces Tecum served on the wireless provider will provide data regarding texts and calls – that is: who texted or called whom, and when, and how long was the conversation, etc.

This information can, of course, be very damaging to the divorce litigant with that “special someone” waiting in the wings as they text love notes to each other at 2:00am. This data could certainly be used to show that a parent has no idea that the teenager at issue in the custody battle is also texting and calling and snapchatting at all hours of the night and day – during school hours and instead of studying. This could be used to demonstrate a lack of willingness to actually “parent” the child or, even worse, the lack of ability. The Albright Factors, by default, as discussed on this blog site many times, just got introduced to the digital age and the 21st century.

As the love interest in the movie “The Social Network” (2010) told Mark Zuckerberg, founder of Facebook: “it’s the internet…its written in ink”. So be aware of your digital footprint, as it is very easy to use against you in Court, or in your favor if your lawyer is inclined to do the dirty work against your ex for your benefit.

Michael Louvier was born in 1965 in Metairie, LA, graduated from Brother Martin High School in New Orleans in 1983, received a B.A. from University of New Orleans (1988) and a J.D. from Mississippi College School of Law (1994) and is a regular contributor to the blog tab on the world wide website of attorney Matthew S. Poole – www.mspoole.com. If you are reading this, then you obviously have access to the internet and are on the site. Odds are, you are no longer depending on a “dial-up” modem to support this visit. Please include this site into your favorites list and click onto this site often. And may the force be with you. (Sorry, I could not resist a 1970’s reference).

Michael Louvier is married 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20).

TAGS: Family Law, Subpoena, Custody, Divorce, Social media, Albright factors

THE ALBRIGHT FACTORS REVISITED

Thursday, March 21st, 2019

Each and every Chancery court case in the State of Mississippi that determines the primary care and custody of a minor child (or children) will cite the case of Albright v. Albright. Within Albright, the Mississippi Supreme Court provided a list of factors that the Chancellor must consider when making the determination about the best interests of the minor child as it relates to the parent who should be awarded primary physical custody.

The factors, together with a brief explanation of each, are as follows:

  • The age, health, and sex (gender) of the child;

The commonly referred to “tender years doctrine”, which had suggested that very young children can only be cared for by the mother, has been on the decline. However, the gender and age as it relates to puberty and the corresponding biological issues can be considered in this factor. Also, any chronic and/or specific health issues that the child may be facing are to be considered. This factor would favor the parent that can better or more consistently attend to these needs.

  • The continuity of care of the child prior to the separation of the parents;

This relates to the stability of the relationship between parent and child and it can be difficult for a Chancellor to determine if this factor favors one parent over the other. (I suppose this is true of all of these factors). Testimony about the day-to-day care for the children is important. The consideration can become more clear if one parent moves out of the house and/or moves away and there is a lapse in time between those actions and the trial.

  • The parenting skills and willingness and capacity to provide primary care for the child;

Let’s face it, some people are not good with kids, even their own, and not all people have the desire to put in the time and effort to be the primary custodial parent. But where there is a court case about the custody of children, we can assume that they are willing to do so. Willingness notwithstanding, not all people have the mental, physical or perhaps financial capacity for primary custody.

  • The employment of the parent and the responsibilities of that employment;

Some parents are “penalized” for being the bread winner and can’t take off work whenever there is a crisis. On the other hand, self-employed or the business owner might have great responsibilities but also enjoy freedom of schedule.

  • The physical and mental health and age of each parent;

This factor seems fairly straight forward. Sick or mentally ill or alcoholic parents will be at a huge disadvantage, and perhaps they should.

  • The emotional ties of the parent and the child;

Unlike number 5, above, this factor is not so “cut and dried”. Witness testimony regarding how the child interacts with each parent is usually helpful. Therefore, your lawyer should know very early in the process about your potential witnesses. Some bonds are not mistakable and irreplaceable and we should all hope that the Chancellor, with the help of witness testimony, will be able to spot this kind of bond.

  • The moral fitness of each parent;

An “at-fault” party in a divorce proceeding may face the firing squad twice. An adulterous affair or proven addiction to drugs or alcohol would provide grounds for a divorce while simultaneously conceding this factor to the other party. Bad behavior of a parent, bad habits, poor morals, are often punished in Chancery Court.

  • The home, school and community record of the child;

For children advancing in age, active in sports, school and/or church activities wouldn’t want to uproot them. This factor can also be meshed in with factor #3, above. The parent who shows more involvement in schoolwork and other associations of the child will enjoy an advantage.

  • The preference of the child, when the child has achieved the age sufficient , by law, to express such a preference;

There is a common misconception that as soon as the child turns 12 (usually the recognized sufficient age) that this is the only factor… it is only one factor and in a Modification case, the other facets must be met first, as indicated in my prior blog article.

  • The stability of home and employment of each parent;

The Court would be reluctant to award primary custody to the parent who has a difficult time paying the rent, keeping a job, etc. Unlike factor #4, above, this one recognizes that a parent that holds down a steady job can be favored. So it would appear at first glance that these two factors (#4 and #10) are at odds with each other. Rest assured, they are not. Job stability, or the lack thereof, is the focus of this factor.

  • Any other factors relevant to the parent-child relationship;

This is the “catch all”. Chancellor that depends on this factor will most often define in clear terms what he is talking about and what piece of evidence or part of testimony during the trial that he has based this decision.

An Albright analysis is not supposed to be a score card system; that is, you don’t just add up each side to find the “winner.” Factors can favor one parent over the other, strongly favor, slightly favor, or they can be neutral. More or less emphasis can be placed on one factor over the other. An experienced family law attorney will be very knowledgeable about these factors and he should also be familiar with any specific “slants” or pre-conceived notions that the Chancellor assigned to your case might have.

Michael Louvier is a graduate of Mississippi College School of Law (1994). He has been married for 28 years (Tammy) and they have 2 children (Amy, 25 and Nick 20).