Posts Tagged ‘attorney’

Jailing the Cheating Spouse AND Their Lover?

Monday, March 9th, 2020

Is it possible to have your cheating spouse and their paramour thrown in jail for fornicating with someone other than you?  It seems like an antiquated concept, right?  This relatively recent state law has some strong similarity to the punishments enacted on cheating women in days of old (like in the famous novel “The Scarlet Letter”).  So, let’s dive in and take a hard look at the criminal component of adultery by examining the language of this relatively new state statute (remember, the MS Code has been around for about a century now).

MS Code § 97-29-1 (2013)

“If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.”

Many of you are probably thinking the same thing…here is my chance to punish that cheating low-life and that loser they are cheating with.  Is this statute ever even enforced?  It is very tempting to exercise this potential weapon which allows the possibility of prosecution for bad behavior..after all, no one likes a cheater.  Who would have thought to press charges for adultery after all…it is certainly a novel concept and one that is rarely, if ever utilized.

I spent a bit of time looking for relevant Mississippi cases where someone has been prosecuted for a violation of this code section (statute) and found exactly zero of them (sidenote:  the databases only reflect appeals so there may have been a small handful where the person chose not to take an appeal, but not likely).  Years ago there was in fact a statute that has subsequently been overturned that made extensive communication, even without fornication or other sexual acts with a married person a crime and was dubbed as “criminal conversation”.  That law has since been overturned by the Supreme Court of Mississippi.  Wow, how times have changed.  In the modern era of internet communication, we may all have been found guilty at some point in time.

While we have certainly taken a step back in terms of the magnitude of the codification of crimes as they relate to state statute, not seeing a single prosecution of crimes regarding adulterous or potentially adulterous behavior is somewhat surprising.  Even now, the standard is lighter in terms of what one must prove to show that a crime has been or is being committed…but the outcome is still that zero people have ever sat in a jail cell for adultery is the new reality.  Many will ask why this is the case, and for good reason. 

My final thoughts are pretty simple–and somewhat obvious to those who follow the criminal justice system.  First, there are simply not enough jails to house all of the cheaters out there.  Prosecutors have bigger fish to fry (rape, murder, assault)… everyday.  Although the legislature has made clear their position as to the seriousness of adulterous acts, enforcement is not quite so easy.  If we prosecute every cheater, as a society we will likely be too busy to pay attention to the violent crimes that run so rampant.  There is only so much space in the county lockup.

On a positive note for those of you dealing with a cheating spouse, you can take advantage of the public policy against your cheating partner by pointing to the chancery court that an actual crime is being committed.  It may not land the cheater, or their lover in jail, but at least it will magnify the gravity of your situation and potentially reap a better civil outcome.  After all, do not forget that public policy is on your side, at least this time.

Facebook + Difficult Marriage = Divorce

Friday, February 14th, 2020

Ok, I already know what you are thinking.  How can social media alone lead to the downfall of a marriage?  Afterall, there are indeed many people who use Facebook solely to keep in contact with old friends and family.  But let us be totally honest.  Most single  and some married users of Facebook are simply making an attempt to broaden their pool of potential mates (guys, I am especially talking about you). 

There is no question that Facebook does add some positive attributes to one’s social life, but is the unrestricted communication interrupting the sanctity of marriage?  Is it too easy to vent problems with your spouse to any listening ear when we need one the most?  Are the people we “friend” truly able to give us objective and moral advice about a crumbling marriage?  Do they have your best interests at heart, or their own?  Let’s break this into pieces and explore some of what may be obvious but needs to be emphasized.  Emotion without logic never leads anyone to a good life result.

For those of us who grew up as teenagers without cell phones, we remember the simplicity of communicating with the people we held dear.  It was not as easy as it is today…we had to actually call a landline, and for me, I had to make nice with mom or dad before getting on the phone with the young lady I had a crush on.  It seems in some ways that this is the way it should be.  Is it?  Well, to say it succinctly the internet, for all of the benefits, may be more dangerous than valuable. 

It is clear that some of the benefits of wide-open communication are also impediments to the sanctity of personal relationships…marriage in particular.  Not only do we open ourselves to voices that should be distant from our most intimate experiences, we allow more easily anyone to chime in via social media.  I will attempt to break down the reality of social media’s impact on marriage in two ways.

First, it is understandable that when we are dissatisfied with our partner to vent, and what is easier than doing so online?  Gone are the days of landlines and some degree of separation between our marriages and those people who, possibly with good intent, want to tell us how best to decide our paths forward.  Fetching quick advice from a friend online is tempting for everyone, but tread lightly because they are only hearing one side of the story. 

Secondly, that attractive member of the opposite sex does not necessarily have your best interests at heart.  They likely have an agenda…to wedge themself between you and the person you hold dear.  Again, if you sense that they are not supportive of your marriage, they are not supportive of you.  Your spouse is one with you and the law also recognizes that your interests are sacrosanct…they are one in the same.  

Facebook and social media in general have dramatically changed the landscape of divorce.  Even though accounts may be designated as “private”, the bulk of information contained in them is a simple subpoena away for an adept lawyer…that may change quite soon.  Mark Zuckerberg, Facebook C.E.O., recently announced a plan to encrypt all messages sent via their messenger feature.  This basically means they will be nonexistent once they are read.  Talk about a way to cheat in private with no one being able to know a paramour exists.  My suspicion is that most cheaters are looking forward to this feature rolling out in the near future.

As a final thought, divorce rates are down in sheer volume, but have spiked in relation to percentages with the onset of social media.  Divorce trials are inundated with Facebook posts as evidence of adultery.  The personal and intimate nature of romance seems more and more elusive when we are open to unfettered communication.  While it may be a well-meaning friend or a new love interest that interferes in marriage, there does not seem to be any improvement in sight short of people ditching social media outright.  That is a scenario no one can fathom and simply will not happen.

Winning at Work, Losing in Custody? The Sad Truth

Sunday, February 9th, 2020

So many men (sometimes career women, too) lose a custody fight because of their career obligations.  I want to share a few typical scenarios in which a very good parent, maybe even the better option to be the primary caregiver in most respects, is going to lose regardless of the grand scheme of things.  First though I want to reference a previous post that was written in October, 2019 entitled “Mom Has The Advantage With The Young Ones”, (it can be found in our archive) wherein I concluded the following:

“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.”

It is well settled that men (or working moms with stay at home dad husbands) are technically supposed to start on an even playing field with one another in a custody dispute…courts are mandated to be “gender-blind” in deciding who gets primary custody of a child.  Let’s look at two different, common scenarios where the hard worker has almost no chance of winning in a custody fight because of their job responsibilities.  

Scenario #1.  Husband and wife have two young children.  Mom isn’t happy in the marriage and hires a divorce attorney to initiate a divorce.  She hasn’t worked since the birth of her first-born which was several years ago.  Dad has always been the income provider, the breadwinner so to speak.  He wants to be the primary caregiver and that wife have visitation.  He believes that, since he has family close-by, that they can stand in his shoes while he works long hours.  Dad is incorrect and will almost certainly lose.  He is upset, feeling punished for being a great provider.  The reason he will almost certainly lose?  Because unless mom is unfit or has a work schedule more taxing than his, the capacity to provide child care is vested in natural parents first…not the relatives who live nearby.  Is he being punished?  The argument can be made, but the logistics of caring for kids takes precedence over how dad feels. 

Scenario #2.  Mom and dad have been divorced for a few years (or broken up).  A court order is in place giving mom primary custody, but dad gets a generous dose of visitation, more than standard every-other weekend visits.  Dad lives in the same town as mom, or even the next town over.  Dad gets offered a significant pay raise, but the job is in Texas.  He believes full well that he is the better parent.  He is placed in a scenario wherein he must choose to leave Mississippi and risk the difficulties of traveling…a LOT, in order to see the kids as much as he does now.  But, he wants to be a great provider, because he loves them.  Can a happy ending follow?  Unfortunately, probably not.  He either has to suck it up and follow the existing order and live out of his vehicle or petition the court for a restructuring of visitation.   Most likely, and 99.9% of the time, this fact alone will not tender him a foot in the door to seek custody…even if he has proof that the Texas schools are superior.  Is he being punished?  I’ll let you decide, but clearly our lives are full of tough choices.

My final thoughts are twofold.  First, it does seem that we often get the short end of the stick when doing the right thing.  Secondly, no matter how much better-off you may be financially than the other parent, how much nicer a home you have and so-forth are of no concern to the courts.  That is what child-support is for…to simply equal the playing field.

What Kids Need…The Court’s Role

Thursday, January 30th, 2020

Why is it that so many of us have difficulty getting along with our exes?  Is there a way to move beyond the struggles we face in attempting to co-parent?  It seems clear that many of us let emotion get in the way of what is best for our kids.  Oftentimes we forget that children do not understand adult problems.  All that they see is two parents who fight and fuss at the drop of a hat.  So, what are the remedies to this corrosive behavior that impacts the little ones so negatively?  There is no magical panacea, but after managing close to 1,500 domestic custody matters in the past two decades, I have a few ideas that hopefully will help.

I want to state up-front that the vast majority of the people reading this are concerned for what is best for their child or children.  Thank you for that, they will reap the rewards of your care and concern.  It is all too easy to get caught up in the fray with an ex, to fight and fuss over even the petty things.  How many times have you lost your cool and it affected your child?  It happens…even to good people.  Is there some way to bury the negativity you harbor toward the ex?  Let me start by saying that our focus has to be on the little ones…they did not ask to be brought into a tumultuous situation.  They have zero grasp of adult relationships…and they deserve peace and innocence in childhood.  When they become adults, all of the beauty of innocence disappears.

When attempting to co-parent with an ex, even if you have primary custody, make sure that you value their role in your child’s upbringing.  You do not have to put them on a throne, but realize that your exes’ sense of self-worth is reflected upon the child.  Remember that severe parental alienation is ground for a change in custody of a child (Mississippi began this practice as early as 2013 and it has been upheld by the appellate courts).  No matter your feelings toward the ex, make sure you are a beacon of hope, positivity, and happiness for your child.  No kid wants to believe that one of their halves is worthless.  It reflects on their own sense of self-worth. 

Here is my short list of ways to de-escalate the tension that will ultimately hurt your child.

  1. When the conversation between you and the ex turns into something unrelated to the kids, remind them that your concern is child-centric…not about past events that you both recall.

  2. If voices are raised, remain calm.  Do not fight fire with fire.  It is better fought with water.

  3. Keep in touch with your ex about the child’s grades, behavior, and school programs.  It may seem like a minor thing to you, but these acts show respect for the child’s co-creator and benefits both.

  4. Remember that your child loves without the judgment of an adult and that their other parent needs to be a source of positivity…you can make that happen with a firm deliverance of assuring that you value their role in your child’s life.

  5. Always keep your child aware that they can call their dad/mom at any time if they want an ear to lean upon.  They will ultimately benefit from the unfettered communication.  We all need it at some place and time.

In short, the court will be glad to see a source of positivity in the sea of hate that they swim through on a daily basis.  It isn’t difficult to be a shining light in the dark of custody litigation.  Simply keeping priorities in order and demonstrated are not complex tasks.  Any chancery judge in Mississippi will be happy to see that not all litigants are angry, even vindictive.  That mindset goes a long way and is the path to getting a great result from your local child custody judge.  Don’t ever forget that your child is more than your flesh and blood.  You are their mentor, teacher, and best friend.  It may take a village to raise one, but it takes a strong parent to create a strong future leader.

“A Stitch in Time Saves Nine” (Avoidable Custody Mistakes)

Friday, January 24th, 2020

Ok, I am sure you are thinking of the saying quoted above.  Sounds like something uttered from grandma and irrelevant to child custody litigation, right?  It is not only relevant, but the key to stopping the bleeding early on.  It can help anyone in a custody dispute from an all-out hemorrhage, saving not only money but lost sleep and stress that accompanies those who procrastinate dealing with their custody matters.  I have said it and will repeat myself again…hire a lawyer before your case spirals out of control.  It is easier to do it right the first time.  Cleaning up the mess of procrastination is not so easy. 

When I was a young attorney (no grey hair) in the early part of the millennium, I wanted desperately to believe that simple solutions existed for those parents who are victimized by an abusive or controlling ex.  It has taken me close to 2 decades to realize that the more difficult the relationship is/was, the tougher it will be to attain clarity and peace of mind moving forward.  So will it be for our kids.

I also know this to be true not solely from representing clients in sticky places, but because I have lived it myself.  Going through my own custody battle gave me a perspective I could have never imagined.  Thankfully, I have full custody, legal and physical, of my ten year old son and have for over 9 years.  I can relate to the stress you are going through more than you may know.

So, back to the topic, based on the title of this article.  What is a stitch in time?  Saving nine?  Well, the obvious is that when we address custody issues early on they are seen on a level playing field by the court.  If you are seeking say, joint custody, for instance, and have waited until your child is kindergarten aged, you likely missed the boat.  See our multiple articles regarding the extraordinary importance of continuity of care.  Also, as an example, if you claim to be the better parent and are seeking full physical custody yet sat still for years, your argument is now diluted.  It is weaker than the proverbial glass of water. 

So, here is my advice…take it or leave it.  I can only offer.  If you let a custody case spiral out of control because you are in denial, you, as well may deny that you are coming down with the flu, pneumonia, or worse.  Getting control early is key to a reasonable resolution. 

  1. Do NOT believe that your good luck will keep you safe from the pain and expense of litigating over a child/children.

  2. Do NOT wait until the last moment to hire an attorney…the worst attorney in town will get the better of you with relative ease.  Trust me, I have had to embarrass many people who let their ego lead them into self-representation.  It is part sad and part comical.

  3. DO consult with a duly qualified lawyer, preferably one who specializes in family law, as so soon as friction is noticeable with your ex.

  4. Do NOT believe that your case is easy and that the evidence presents itself.  The way to introduce evidence is highly technical, even the most seasoned attorneys can mess it up and often do.

  5. DO seek advice from at least 3 lawyers prior to hiring one…and trust your gut instinct.  The cheapest is likely not going to put the time in that is required to succeed.

  6. DO a basic calculation of the financial ramifications over the life of your child, college too.  It truly is amazing how expensive they are, and the burden should be borne by two, not just you.

So, let us recap.  Procrastination is bad.  A mediocre lawyer beats a smart non-lawyer…every single time.  A total catastrophe can be avoided, but only for those who are able to stare reality in the face.  If you are able to relate to this article, call me or any other qualified domestic lawyer.  I am sure that, at the end of the day, you will be glad you did.  After all, that one stitch is your best shot at avoiding it all unraveling before your very eyes.

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.