Posts Tagged ‘attorney’

Battered Woman Syndrome…All Too Common

Thursday, October 31st, 2019

Battered woman syndrome (BWS) is a psychological condition and describes a pattern of dysfunctional behavior that develops in victims of domestic violence as a result of serious, extended abuse. BWS is dangerous in part because it can lead to what some psychologists often state is a “learned helplessness” — or psychological paralysis — wherein the victim becomes so very depressed, defeated, and also so passive that she believes that she is not capable of leaving the relationship without her own destruction.  While there is no question that claims of abuse are often manufactured, many women are legitimately abused at the hands of a bigger and stronger male companion, husband or otherwise.  What a shame.  As Voltaire once said, “Power corrupts, and absolute power corrupts absolutely”.

What is a “syndrome”?  Is the term often used incorrectly?  How does it apply to an abused wife?  Let’s take a look at Merriam Webster’s definition and try to shed some light. 

Definition of syndrome

1: a group of signs and symptoms that occur together and characterize a particular abnormality or condition

2: a set of concurrent things (such as emotions or actions) that usually form an identifiable pattern

The more I have dealt with abused women, it reminds me of the similarities between BWS and Stockholm Syndrome.  The human psyche is immersing and deep.  If you have ever read about people who are kidnapped, held against their will, you may be familiar with Stockholm Syndrome.  It is essentially a psychological defense mechanism that allows an abused, subjected person to cope with their present challenge.  Although it does appear sickening to an outsider, this defense mechanism is often the best route for the subjected, unfortunately. 

Stockholm syndrome is a condition which causes hostages to develop a psychological alliance with their captors during captivity.  These alliances result from a bond formed between captor and captives during intimate time together, but they are generally considered irrational in light of the danger or risk endured by the victims. The FBI’s Hostage Barricade Database System and Law Enforcement Bulletin indicate that approximately 8% of kidnapped victims show evidence of Stockholm syndrome.  It is not much different from the signs shown by a battered wife.

This term was first used in the media in 1973 when four hostages were taken during a bank robbery in Stockholm, Sweden. These hostages defended their captors after being released and would not agree to testify in court against the suspects. Stockholm syndrome is quite paradoxical because the sympathetic feelings that captives feel towards their captors are the opposite of the disdain which an onlooker will feel towards the captors.  Again, the similarities with BWS are extraordinary.

One key point that always stands out to me about the psychological makeup of battered women is that the men they are with are always lacking core confidence.  Instead of loving and caring about their wives, they have no other medium than abuse, control, and bringing down the one they married or have an intimate relationship with.  There is simply no workable path in marriage that allows for abuse and control.  Confident men are a breed apart.  They will not resort to anything that harms the one that they married.

My advice to a battered woman is simple.  If in fact you are being abused, remember that victims act like they are abused.  Multiple occurrences of abuse that are swept under the proverbial rug are going to appear less than credible.  Even though the mindset of a true victim is difficult to fully comprehend to an onlooker, you must be aware that perception from the outside is very powerful.  The perception a chancery judge has regarding your credibility is even more so.  If you are being abused, find the strength to confide in those who care about you.  Find the will to get away, because there are always people who care…if you have the desire to look around you.

Battery of women is commonplace.  When you find the will to get far away from an abuser, know that you are better off without them, even if you stay single for the rest of your life.  Understand that a chancery judge will question the merits of your claims, and with some degree of skepticism.  For those who have never been true victims, it is difficult to understand why you stayed.

Mom Has the Advantage with the Young Ones

Monday, October 21st, 2019

Laws in Mississippi have certainly changed since the passage of Albright v. Albright (it is on our home page), but the reality is that mom almost always has a slight advantage when it comes to obtaining primary physical custody of a young child.  We have often looked at the doctrine that was front and center in custody cases prior to the Albright case, which was referred to as the “tender years” policy.  Although it has been deviated from, based upon the preference for Albright analysis, many of the same approaches are still employed when litigating a custody case.  After seeing this play out first hand–hundreds of times, mom usually does carry a slight advantage…unless she screws it up by cheating, drug use, alcohol abuse and, well you get the point.

The “tender age doctrine” has been undergoing a re-evaluation in the past decades, and rightfully so.  Times have changed in many ways, but so much remains the same.  Two states have essentially upended the notion that mom is better with having custody of a young child, and their courts have held that the maternal presumption favoring mothers in custody cases violates state as well as United States Constitutional guarantees of the Fourteenth Amendment. 

Some of the challenges to the tender years (or tender-aged) statutes have also been based in the equal protection clause of the U.S. Constitution.  See Watts v. Watts, 77 Misc.2d 178, 350 N.Y.S.2d 285 (1973). The tender years presumption has also at times been held unconstitutional as a gender-based classification which discriminates between fathers and mothers in child custody cases solely on basis of their sex. Devine v. Devine, 398 So.2d 686 ( Ala. 1981).  However, state statutes generally control unless appealed to a federal court.  Few can afford to do so.

So, where does Mississippi stand?  Is there truth that dad doesn’t have a chance?  Not necessarily, but he usually has a taller hill to climb to obtain custody of a young child than mom does, and that’s not written law, it is likely cultural more than anything else.  The Albright analysis does afford some advantage to mom, particularly because of the continuity of care when dad is at work. 

I fully appreciate that dad often gets punished in this sense for earning and supporting his family.  If mom is also at work and their child is being equally cared for by both parents, this advantage can easily disappear.  However, due to the commonality of mom staying home, receiving some maternity leave, continuity of care usually will favor her.  Some states do require employers to mandate paternity leave, but not Mississippi.  See our other articles wherein we discuss the power and importance of being the primary caregiver, because they are particularly front and center in this conversation.  It truly is the most likely predictor of who wins custody.

In sum, dad has a relatively equal shot at obtaining custody but for the fact that they are likely not an equal caregiver…especially if mom stays home.  If the father of a child truly wants to increase the possibility of obtaining child custody, he needs to find a way to, at the very least, be an equal participant in child-rearing.  Even though it is difficult to afford for many, hiring help is usually his best shot so that mom can return to work.  That way, at least he can argue that mom who does not stay at home is not advantaged by his daily absence.  Make no mistake, I understand full-well how unfair this may seem to all of the dads out there.

If you have a child custody issue and are seeking primary custody, give us a call and we can give you unfiltered advice in obtaining the best result for your kids.  As a single dad, I appreciate your devotion to your children, but more importantly, so do they.

Cyber Civics: Children and Online Ethics

Monday, September 30th, 2019

It is estimated that children are online more often than they are in school.  Some studies have found that the average teenager is on the internet for in excess of 10 hours per day.  The interactions that we all have online are a gigantic part of who we are.  Our interactions frame us and we will be judged by them not differently than we are judged by our appearance and profession. 

Safe and civil interaction online is fundamental for children.  They often have little idea about how to navigate the bullying and anonymity that goes with it.  Now, schools have begun experimenting with civics classes focused on childrens’ online interactions.  After looking at this issue, it seems at first glance to be the right course when we are increasingly becoming digital citizens.

The introductory phase in these “cyber civics” classes is generally focused on bullying.  Interestingly, it appears that most studies link cyber-bullying predominantly to making fun of one’s appearance.  While there is always online hatred based upon a child who does not fit into a prototypical gender group or traditional sexual orientation, appearance is by far the most common target for online bullies based upon randomized studies.  There are not simple answers, but the focus on bullying seems a logical place to start for the new curriculums being offered.

Cyber civics is also, in a typical curriculum, secondarily focus on being able to identify “fake news” versus true and factual journalism.  Years ago, it was often said that the first tenet of journalism was objectivity.  The only agenda being that no particular agenda was appropriate is the primary goal.  We have come a long way from that basic principle.  If you read either the conservative or liberal media it is all too clear.  No middle ground seems to exist anymore.  True journalism may not even exist anymore.  That’s a shame.

The core values of our society are generally agreed upon.  We must be kind, respectful, and honest.  Although cultures may vary somewhat as to the way they apply these ideals, it is clear that very few would disagree with this basic premise.  Children are essentially being placed into a broader culture when they have access to the internet.  The odds of a child seeing something inappropriate online are extremely high.  Parents are the only filter for their kids.  The internet, as helpful as it can be used as a teaching tool, is also a double-edged sword.

Although cyber civics as an academic study is a relatively new concept, its focus is not altogether different from social science concepts that are well-established tradition.  Whether we call it cyber civics, social media consciousness, or plain old common decency, the concept remains essentially the same.  Unfortunately, the average person should already be familiar with the importance of decency and honesty but may have eluded that long ago.  When online, some take advantage of avoiding this should-be common ground. 

Anonymity plays a huge role in online interactions, and children are particularly vulnerable.  As such, a new era of digital coach is becoming common.  They now exist in public junior high schools in New Hampshire and Vermont.  Many courses are also offered online as a non-mandatory supplemental option.  Go to Google and search for “cyber civics course” and there are a ton of results.  Whether they are useful is still up for debate.  It seems that much offered is simply a reiteration of common decency.

In sum, it seems that the goal of online decency is a noble one, although somewhat arbitrary when distinguished from simple human interaction and courtesy.  Children are at a great risk of depression and suicide from being harassed, intimidated, and otherwise abused online.  The root cause is that we, as a society, seem to have sheltered and protected online interactions that would run afoul of the laws we have already created regarding defamation and harassment.  Until politicians recognize that anonymous bullies are a significant driver of teen and adolescent suicide and depression, nothing is likely to change. 

It’s time that we identify the real problem…poor public policy.  The legislature could solve much of the problem.  We have to let them, as our elected representatives, know that anonymous online harassment needs to end, once and for all.

Matthew Poole is a Jackson, Mississippi domestic attorney.  He was admitted to the state bar and the federal district courts in 2004.

Do Chancery Judges Have a Sixth Sense?

Thursday, September 19th, 2019

Before getting into the nitty-gritty details of my experiences with Mississippi Chancellors, I must say that we have a unique system to determine divorce and custody matters in our state.  Only 5 states in the U.S. have chancery court systems. They are based on English common-law and principles of equity (fairness). Without a doubt, the big difference between chancery and other courts is that a chancellor is not only the final interpreter of law on point, but also the ultimate fact-finder.  This requires playing somewhat of a “dual role” in making determinations that affect not only a divorcing couple, but their children and extended families. So, after 1,300+ domestic cases, do I believe that chancellors have a heightened ability to sense what is not directly in front of them? Yes, and it is largely because they have significant experience in detecting the motivations of those who appear in their courtrooms.  

When in court, attorneys are commonly making points based upon evidence that can be seen and heard.  Most of the proof that we present on a daily basis consists of not only the testimony of witnesses, but video, photographs, documents, and audio recording.  While these are what I would call “empirical” evidence, they are not the only consideration for a fact finder. For instance, let us take a brief look at criminal jury trials.  They are a contrast to chancery proceedings in many ways. The judge has a singular role: interpreter of law. The jury has one role as well: find the facts. That fact-finding is not exactly an exact science.  It is highly nuanced…subjective as all get-out. Reasonable minds can disagree and often do. After hearing testimony and seeing all of the evidence, we can and will come to different, often ant-opposite of conclusions.  That is simple human nature.

Chancellors are the equivalent of both the judge and jury.  Not only do they interpret law, they are the sole fact-finder in divorce and custody actions.  They have to rely on their God-given instincts in close cases. Having seen the inner-workings of the chancery system in Mississippi, I can without question say that chancery judges tend to have a heightened intuition.  It is necessary when determining who is truthful and who is not. That gut instinct decides the outcome of so many close cases. Most of them are close, or they tend to settle prior to trial. Think of all the times you likely disagreed with a jury.  Without pointing to any specific cases, you can surely name a few of your own.

Most divorces and child custody matters are close calls.  Many lack any concrete proof at all. There are almost never any smoking guns or red hands to be caught.  The proof is almost always what I would call luke-warm…even circumstantial. The best approach in any chancery court is to build credibility by telling the truth.  Consistency goes a long way, as it should. Chancellors are pretty good human lie detectors.  

My advice to anyone going through a difficult custody case, divorce, or visitation issue is to be cool-headed and calm.  Be consistent and voice your concern for your children. Do not worry about shaming your spouse, your ex. It will not build credibility with the judge.  Your testimony will be weaker than it could have been when the focus is taken off of your kids. It is always better not to voice the raw emotion that a breakup causes.  The children are what matters now, and the judge could care less how much you may dislike your ex. They hear all too much of it on a daily basis. It gets tiresome, and quickly.

If you end up in court over a disagreement about your kids, your finances, do yourself a favor and relax.  Chancery judges love nothing more than a reasonable, calm litigant who is able to have a laser focus on what matters and ignore what does not.  Kids need structure and stability to thrive. They need a routine that is predictable and not jolted by emotion. If you are able to tap into this thinking, you just increased your odds of obtaining a positive outcome in a tough life moment.

Matthew Poole is a Single Father and Jackson Mississippi Family Lawyer, Recipient of the National Family Lawyer Association Top 10 Award in 2015 and 2018 and Finalist of the Steen Reynolds and Dalehite Trial Competition.  He was admitted to the Mississippi Bar in 2004.

Modification Mayhem; How to Steer Clear

Thursday, September 5th, 2019

Child custody modification cases are always challenging for a variety of reasons.  First, it is important to recognize that Chancellors are inclined not to “rock the boat” by making drastic decisions about child placement without very good reasons.  They, as they should, need a parent seeking modification to present overwhelming reasons for a sudden change that affects every aspect of a child’s life.  Haphazard, swift decisions regarding children are frowned upon and avoided at all costs. 

I want to focus on a common scenario which occurs and attempt to illustrate the divergent paths it presents.  Quite often, a child turns 12 and is able to voice a preference to the court about where they want to live.  Although they do not get to “choose” (a common misconception), their voice plays a critical role in triggering and potentially effectuating a child-custody claim.  Although the maturity level of the child is not a technical factor in the weight of their preference, it will always play a critical role in the outcome of the modification claim.

I want to share with you a custody horror story, at least from the perspective of a former client.  Often the best lessons are had by failure, not success.  Many years ago, I was hired to prosecute a child custody claim in Rankin County, Mississippi on behalf of a mom whose son had recently turned 12.  We all met at my office and the child was quite clear about the strength of his desire to live with his mom.  I did not question his sincerity for a moment. 

Fast forward several months and we finally have our day in court at a final hearing (trial).  I called the young man to the stand and he performed as I expected.  When my opposing counsel had his shot at making his case, the child fell apart.  It went something like this:  “Young man, why is it that you want to live with your mom all of the sudden?”.  A fair question, right?  The boy then said, more or less, “My dad makes me go to bed at 10 o’clock and eat grilled chicken and vegetables.  I hate vegetables.  When I am with my mom she lets me do pretty much whatever I want.  I can have as much pizza as I want and I can play video games while she’s busy doing other stuff.  My dad is just too strict.”  Whew.  I heard the sound of my case deflate right in front of me.  The odds of winning were nil.  My client was upset and so was I, but he was just a kid after all.

I have seen first-hand how children will attempt to please both parents.  I have had clients hire me on modifications of custody only to realize later that their child was telling their ex that they wanted to stay with them.  Kids have a natural defense mechanism to make both parents happy.  They will tell both that they want to be with them.  It borders on dishonesty, but for the love of God, they are only kids and do not understand adult problems.  This is the way that they cope.  It is frustrating and can cost a client several wasted dollars, but nonetheless I understand the plight of the children torn between two parents that they dearly love.  We must, as the adults in the room, understand how to avoid this mayhem in the first place.  Our children deserve it. 

My advice is simple.  The mature children are going to be far more likely to stay with the parent they prefer.  I doubt many of them are 12.  Once a child has consistently voiced a mature, rational desire to stay with you, consider speaking to a lawyer about a change of custody.  Chancellors are privy to the fact that children are not always able to decide what is best for them.  You can avoid wasting thousands on a failed modification claim by allowing your child to come to their own conclusion. Be patient and kind.  Remember that they are feeling pressure from every direction.  And in the end, respect them and their innocence.  One day they will face adult problems.  It is your job, as a parent, to make it later than sooner.

Matthew Poole is a single father and Jackson, Mississippi Custody and Divorce Attorney with 16 years of experience.  He has managed over 1,300 domestic cases.

DIVORCE RATES DIVING?

Saturday, August 31st, 2019

I know what you are thinking, and I can already say that this trend occurs likely not for the reasons you may imagine. Unless you are a sociologist or simply very in-tune with social trends, it may surprise you that the real reasons, or at least the primary drivers of this trend, are not so obvious until we look at ourselves, our friends, and our families.

So many of the younger generation suffered through their parents’ divorces. They witnessed first-hand the turmoil and confusion that impacts everyone involved. They were often more victimized by their parents’ tit-for-tat than the parents themselves. Divorce is significantly stressful for kids. They become front and center in the turmoil. It should come as no surprise that they are more apt to wait before tying the knot. We certainly cannot blame them.

There is also a second driver of divorce rates diving. Millenials are not as financially well-off as their parents were at the same age. Although incomes may be similar (adjusted for inflation), costs of living are much higher. They are purchasing homes much later, have less money in the bank, and upward trending daily expenses. When you hear about inflation in our country hovering between 2 and 3 percent, ask yourself if things you buy on a daily basis (consumer goods) do not seem to have skyrocketed in price in the past decade. It sure feels that way to me.

Another factor lesser discussed has driven the divorce rate down. Here it is: People simply aren’t getting married at the rate they did in the past. I ran a simple Google search of “marriage and divorce rates U.S.”, and the results were surprisingly dramatic. If you click on “images” at the top results bar, you can visualize the strong trend in several telling graphs and charts. It seems to me that after World War II, young men returning home in droves altered our societal landscape. They were eager to start lives and have families. Their children were generally born in the mid 1950’s until the early 1970’s. Those former children are now in their fifties and even late sixties. Time sure does fly. Many (most) of you reading this are their kids. Theirs was a great generation in a very different time.

I also see the impact of social media, a term unknown to our dad, mom, aunts and uncles. They did not know that it would ever dominate our society the way it does today. Facebook, Instagram, Twitter, and so many others consume our daily lives. I believe they are great tools when used for the right reasons, but our communication with others we hardly know can also interfere with our most personal relationships.

We, as a country, have pushed the limits of change in so many ways. Time spent with family is too easily frittered away. Bank accounts are stretched to their limits. Daily pressures are at an all time high, and memories of being a child trapped in the eye of a stormy divorce still linger.

In the end, the best ways to avoid a divorce are more obvious than you realize. Sometimes we simply need to be reminded of what we already know.

Matthew Poole is a single father and Jackson, Mississippi Family Attorney. He was admitted to practice in 2004.

Avoiding Disaster: Divorce and Mortgages

Saturday, August 24th, 2019

Are you preparing for a divorce and have a mortgage on a home or other property?  Valuing these assets is fundamental in order to ensure that you receive a fair shake in severing your marriage.  What common issues need to be clear moving forward on a path to becoming single again? There are several, but the mortgage holder is almost always the key to knowing who should stay in the home and who goes.  Unless you want to be roommates with your ex for the foreseeable future, follow this advice.  

A retired Chancellor from Rankin County, Honorable John Grant, used to say repeatedly that “Two can live cheaper than one”. The reason that credit bureaus will ding your score for a divorce is quite clear:  unless your income increases substantially, a divorce will always negatively impact your overall financial health. When two people own a home in a community property state such as Mississippi, they have essentially formed a joint business venture.  When the home is mortgaged in both parties’ names, both incomes are considered by the bank in determining whether or not to grant the loan application and provide credit. They are not particularly keen on allowing an otherwise responsible obligor (or “customer” in bankspeak) off of the hook.  Why should they be? They have a responsibility to their shareholders to ensure investment in mortgage assets are repaid at as high a rate as possible.

Very many divorced people ask me after the fact why it is that they cannot repurchase another home.  Unfortunately they have almost always suffered from poor lawyering and improper preplanning for severing marital ties.  The gist of their now major disaster is that their attorney did not make adequate provision in the dissolution agreement for the marital home.  They simply stated that one party, we will just say the wife for example, keeps use and possession of the home. Frequently a wife with children will stay in the home if she can afford it.  So the story usually goes as follows…Husband is on the mortgage. Husband assumes that he is off the hook for liability with the bank. Husband applies for a loan, only to be rejected due to a poor-debt to income ratio.  This all could have been very easily avoided.

A simple provision that stated, for instance, “Wife agrees to obtain separate financing for the marital home within 60 days or to list the home for sale at or below current appraisal value” would have done the trick.  Sale price and who decides upon that price can also, and should be laid out clearly prior to divorce. It still amazes me that some lesser experienced lawyers get their clients stuck in a hellish quagmire such as this.  It can and should be avoided with some degree of foresight. Fixing this issue can cost far more than doing it correctly the first time around. I have seen people that have unfortunately spent fifty of more hours in attorney time to clean up this type of mess.  

In the end, be sure that your attorney has discussed with you the best path to rectify any outstanding financial obligations, especially your mortgage.  Ensure that no assumptions are made moving forward. Ask your lawyer every question related to protecting your future and that of your kids. And after the emotional haze of divorce clears, never forget that two really can live cheaper than one.


Matthew Poole is a Jackson, Ms custody and divorce lawyer and a 2015 and 2018 N.F.L.A. top ten domestic lawyer, 2019 Birdeye top family attorney, and 2003 finalist of the Steen Reynolds trial competition at the University of Mississippi School of Law.  He was a Second-Century Scholar at Millsaps College in 2001.

Do This, Not That…Common Custody Mistakes

Thursday, July 18th, 2019

“Small minds discuss people. Average minds discuss events. Great minds discuss ideas”.

Eleanor Roosevelt

We receive about 4,500 phone calls a year, plus or minus. In 16 years of practice, my assistants and I have received prospective client intakes from more people than the population of a medium-sized city. Almost all of the calls have a common denominator; an inability to communicate with the “other” parent. It can be easily avoided…here is a basic blueprint. I hope it is helpful.

Every life struggle needs a hero. Why should it not be you? As a single parent, I have seen these challenges first hand. As a domestic lawyer, I have fought these battles for my clients just the same. So here are my thoughts and impressions about how to proceed when child custody is front and center in your life…and your kids’ lives even more importantly. So here is the entree’; what to do and what to avoid. If you follow this advice, parenting still won’t be easy, but life will be better for your children.

DO- Keep open communication with the other parent about childrens’ activities and progress.

DO NOT- Cut off your kids ability to talk to dad/mom or keep them in the dark. Children build self-esteem through belief that they have great parents…two of them.

DO- Remember that children are innocent.

DO NOT- Believe they understand adult problems, emotions, or opinions.

DO- Remember that your child is one-half of you, one-half of another.

DO NOT- Think that your child isn’t hurting because their other parent is not around…even if it is by their own bad choice.

DO- Realize that kids need love, even if the person loving them has serious flaws.

DO NOT- Require perfection from your ex…we all have flaws, but loving of our children is what matters most, your relationship may have been a simple moment in time, after all.

DO- Make sure to tell your kids that you love them, so does dad…or mom…and grandma.

DO NOT- Tell them that they were abandoned, that you are the hero, that you saved them from misery and suffering.

DO- Ask your children what they need from your ex, be it a new toy, a way to communicate, or a simple showing of affection.

DO NOT- Tell your children how you feel about the person who may have broken your heart, damaged your soul.

DO- Make sure your children enjoy being a child…it is a precious thing we all remember dearly.

DO NOT- Let them feel the real life burdens all adults feel every day.

Last thought…if all else fails, always take pride that you did your best and never gave up on the children brought into an imperfect, but beautiful world. Any judge will see you for your strengths first. That is the way it should be. In a custody battle, nice guys and gals finish first.

Matthew Poole is a Jackson, MS family lawyer specializing in custody and custody modification matters. He was admitted to the Mississippi Bar in 2004.

Grandparent Visitation…How to Get MORE

Friday, July 5th, 2019

Last summer, we wrote an article about how deployment in a military capacity is quite specifically addressed by our state laws. I am going to republish it in part (it has some minor redactions) below because it is very telling as to the affect of a parent being unavailable to exercise visitation under certain circumstances upon grandparent rights. After the bulk of this somewhat technical article, I will briefly discuss other parent unavailability issues, primarily incarceration of a parent. So, here we go……(this is long, but bear with me, it will be worth it!)

According to the Defense Manpower Data Center (under the Office of the Secretary of Defense), the United States currently has approximately 200,000 active-duty troops deployed across 170 countries.

The Uniform Deployed Parents Custody and Visitation Act (UDPCVA) was designed to resolve child custody and visitation issues that military families may face during a soldier’s deployment, temporary duty, or mobilization.

The UDPCVA is divided into five articles, with the first of these defining the foundational terms for the rest. Most importantly, Article 1 states that a parent’s “residence” is not changed during deployment and that deployment cannot be considered in deciding what is in “the best interest of the child.”

Article 2 discourages litigation on child custody and visitation issues by outlining procedural protections for simple agreements between parties.

This act also assists the UCCJEA* in preventing the issuance of competing orders via Article 3, which covers court procedures and includes the use of electronic testimony and the expedition of hearings.

In addition, this article allows for the designation of visitation rights to a nonparent where the court finds that doing so would be in the best interest of the child and Article 4 explains the termination process for these rights following deployment. Finally, Article 5 summarizes the information within each article.

Mississippi Code § 93-5-34 states that “Custody and visitation procedure upon parental temporary duty, deployment, or mobilization” follows the guideline provisions of the UDPCVA on these issues and answers my earlier hypothetical question regarding who would take care of the children similarly to Article 3. It states that “(4) If the parent with visitation rights receives military temporary duty, deployment or mobilization orders that involve moving a substantial distance from the parent’s residence or otherwise have a material effect on the parent’s ability to exercise rights, the court otherwise may delegate the parent’s visitation rights, or a portion thereof, to a family member with a close and substantial relationship to the service member’s minor child for the duration of the parent’s absence, if delegating visitation rights is in the child’s best interest.”

To answer the second question regarding the end of deployment, the same section of Mississippi Code contains a provision like Article 4 of the UDPCVA, stating that “(3) When a parent who has custody, or has joint custody with primary physical custody, receives temporary duty, deployment or mobilization orders from the military that involve moving a substantial distance from the parent’s residence having a material effect on the parent’s ability to exercise custody responsibilities:

(a) Any temporary custody order for the child during the parent’s absence shall end no later than ten (10) days after the parent returns, but shall not impair the discretion of the court to conduct a hearing for emergency custody upon return of the parent and within ten (10) days of the filing of a verified motion for emergency custody alleging an immediate danger of irreparable harm to the child; and

(b) The temporary duty, mobilization or deployment of the service member and the temporary disruption to the child’s schedule shall not be factors in a determination of change of circumstances if a motion is filed to transfer custody from the service member.

(c) Any order entered under this section shall require that:

(i) The non-deployed parent shall make the child or children reasonably available to the deployed parent when the latter parent has leave;

(ii) The non-deployed parent shall facilitate opportunities for telephonic, “webcam,” and electronic mail contact between the deployed parent and the child or children during deployment; and

(iii) The deployed parent shall provide timely information regarding the parent’s leave schedule.

Ok, so what effect would incarceration have on grandparent visitation in our state? What about if a parent or both are in a mental institution? What if they are, in a coma, God forbid? There is little case law wherein other unavailability issues have been hashed out by our appellate courts, although based on my experience courts are willing to bolster grandma and grandpa’s time for any of the above reasons even though no statute exists as it does for military deployments. My advice is to raise this issue with your attorney, it is a solid argument almost every time.

Matthew Poole is a Jackson, Mississippi Domestic Attorney with 16 years of trial experience. He will be speaking at the National Business Institute on July 18, 2019.

*For more information about this statute, go to our search bar on the home page of our site.

Child Custody Challenges Equal Danger + Opportunity

Tuesday, January 8th, 2019

Happy 2019 to everyone reading this post. I am truly amazed that thousands of people read them every month, in large part thanks to Google and its reach. That is truly humbling to know and I thank you all for spending the time– it truly makes writing rewarding. Now, on to one of our very favorite topics…..legal realities.

Anyone who is familiar with our blog knows that we enjoy debunking myths. I am certain that most people that contact us in a disputed divorce that is also coupled with disagreement about child custody, be it joint or primary custody, visitation with their kids, and so forth, are looking for easy answers. Some even think that we sneaky lawyers have a form you can fill out and submit it to the court to obtain custody. Some feel we are holding back for profit. I assure you, that is far from legal reality.

H.L. Mencken (for those of you not familiar with the now deceased journalist, look him up on Wiki…he was controversial and improper at times, but often right) once noted that “For every complex problem, there is a solution that is simple, neat, and wrong”. Americans, especially litigants, love simple solutions and immediate gratification. We are all made that way to some extent or another, myself included.

If I had to guess, over 90 percent of people seeking child custody advice are looking for a quick, cheap solution. Dealing with the rights and protection of children and what is best for them is never that simple. Children obviously bring a new dynamic to parent lives and therein lies the rub. All hope is not lost though; you may, and likely do have opportunity to better your children through the rough sea of custody litigation.

Although there has been significant debate about the interpretation of the Chinese word for “crisis”, often interpreted as “danger and opportunity”, the concept holds basically true in the narrower context of child custody litigation. So, you are probably asking yourself “what is the best advice for the parent fighting for custody, Matthew?”

My tip is a simple one: spend your energy not looking for a simple solution, look for the best solution for you and your kids. And remember, it is a whole lot easier, cheaper, and less stressful to get professional legal advice and do it the right way the first time. Going back and trying to undo what has been done is always the tougher path.

Think of it like this: It is far easier to build a home on a piece of cleared land than to go demolish an old house, clean all the debris and then start from scratch. Trust your instincts about the legal advice you get. And if you sense a lawyer is simply trying to get paid and push you into a prolonged battle, do not walk away, run. The opportunity to get it right may only happen once.

Matthew Poole is a 2018 Top 10 rated Mississippi domestic attorney by the National Association of Family Lawyers, 2004 Finalist of the Copeland Cook Taylor and Bush Trial Competition, and 2001 Millsaps Second Century Scholar.