Posts Tagged ‘best interests of the child’

A THREE PART SERIES ON GRANDPARENT’S VISITATION

Friday, June 7th, 2019

By: Michael Louvier

INTRODUCTION

More and more often, the calls and emails to the Matthew S. Poole law office are originating from concerned Grandparents seeking visitation rights with their grandchildren. This topic was briefly touched upon in December of 2018 (“Happy Holidays to Everyone…Especially Grandparents” posted December 29, 2018); however, I believe this subject matter deserves a much more thorough examination and explanation. To that end, in the following weeks I will submit three (3) separated blog entries dedicated to the issues related to and surrounding GRANDPARENTS VISITATION.

In the initial entry, I will discuss the specific language of Sec. 96-16-3 (Miss. Code Ann. 1972), which is the controlling statute of this matter of law. This installment may, indeed, be somewhat repetitive of the December 29, 2018 entry mentioned above; nevertheless, it is certainly worthwhile to re-examine the elements of the statute as included by the State legislature.

The second installment will explore in more depth the individual elements of the statute. Within that article, I will seek to explain what a “viable relationship” means as it relates to Grandparents and Grandchildren. I will also discuss within the second installment the importance of financial support, both before and after the birth of the child.

The final article in this series will include a discussion of certain and very specific cases recently decided in Mississippi courts. The sudden military deployment, or incarceration, or even the death of a parent can give rise to a grandparent seeking assistance to ensure that their precious grandchildren can/will visit.

There can be no debate that Grandparents visitation rights have become a more commonplace cause of action in Chancery Court. I hope to shed some light on this ever-changing subject while dispelling some myths and misconceptions. I hope that you will visit this site in the upcoming weeks to read this series.

Michael Louvier is a regular contributor to the Matthew S. Poole Website blog. Michael is a graduate of Brother Martin High School, New Orleans, LA (1983), University of New Orleans (B.A. Political Science/English 1988), Mississippi College School of Law (Juris Doctorate 1994). He has been married for 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20). Michael and his family have lived in the Jackson, Mississippi area since 1991.

THE DEPARTMENT OF HUMAN SERVICES – SOME FACTS AND SOME FICTION

Monday, May 20th, 2019

By: Michael Louvier

“The Mississippi Department of Human Services is dedicated to serving others while providing a wide range of public assistance programs, social services and support for children, low-income individuals and families. The agency seeks to empower families so they can become self-sufficient and responsible for their future success.” (Source: MS.gov)

The family law office of Matthew Poole fields many telephone calls and emails with a similar message: The DHS is handling a child support case for me and they aren’t doing anything. Before you roll your eyes and assume that this article is a “hatchet-job” against the DHS, please understand that this is not at all my intention. Fact is, the DHS has many hard working and dedicated case workers and social workers who are doing the very best that they can. As with many of our government employees, both State and Federal, they are very often over-worked and under-paid.

With that said, let me get right to the actual point of the article: What the DHS does and what they don’t do, as it relates to a child support case.

The Department of Human Services acts as a “debt collection agency” for the State of Mississippi. That is, the child support division, through the many case workers and attorneys, strive to enforce the statutory guidelines regarding child support against punitive parents. This usually means fathers of children, either unwed or divorced, who are neglecting to adequately provide financial support for their children. The DHS will take on such cases, free of charge, for individuals who qualify. And that is the key element to this difficult equation: there are so very many individuals who qualify because of their low income. It stands to reason that the lower income single parent needs the child support funds more urgently than the DHS can accomidate. This fact creates a “Catch-22” (my apologies to Joseph Heller) in that these cases are of vital importance to the parent trying to raise a child (or in many instances children) without sufficient funds and yet the DHS is overwhelmed by the sheer numbers of cases in each and every county throughout the State of Mississippi and; therefore, the system is slow and the receipt of these vital funds is delayed. The longer the delay, the more vital the funds become. And this circular pattern continues and will continue ad nausium.

Once a Judgment for Support has been obtained by the DHS through the Chancery Court of the county wherein the child (or children) resides, there are several ways that the Judgment can be enforced. The most common way is through wage garnishment. The DHS can garnish the pay of the punitive parent as much as 35% of the paycheck. Unfortunately, many of these fathers simply change jobs, and now the DHS must become “private investigators” to seek out and find the new place of employment. This game of cat and mouse is very common. Another tool at the disposal of the DHS is the interception and seizure of any tax refund that the punitive parent is entitled – State and/or Federal. This power is quite effective, unfortunately it is only a “once-a-year” tool. The DHS can have the driving privileges of the punitive parent suspended. And finally, if the amount owed becomes substantial enough and there is no reasonable efforts to pay, the punitive parent can be incarcerated. These last two measures are an effective motivation for a parent to pay; however, if these options are employed by the DHS, this does nothing to financially support the child. The punitive dad is now driving on a suspended driver’s license or worse, he is in jail…but little Johnny is still going to bed hungry.

Over-worked with massive and ever growing case loads, while seldom appreciated and most definitely under-paid and for the reasons stated above often incapable of making a real difference – this is the unfortunate status of the Department of Human Services.

Some things that the DHS cannot do for their clients (or payors) include the enforcement of a schedule of visitation, nor can the DHS dictate the manner in which collected funds are spent.

All too often, a parent will complain that his child support obligation is being satisfied (either voluntarily or though some collection/garnishment activity) however the custodial parent will not allow for any substantial visitation with the child. This is not something that the DHS will assist you with. Another common complaint is that the mother is using the child support funds on herself: getting her hair and nails done or buying new clothes for herself but not the child. Again, the DHS is not interested in this type of problem. And while the DHS cannot and will not assist you with these issues that are relevant to the best interests of the welfare of the child, these are certainly NOT excuses or valid defenses for not satisfying a child support obligation.

Michael Louvier received a B.A. from University of New Orleans (1988) and a J.D. from Mississippi College School of Law (1994) and is currently a contributor to the blog articles for attorney Matthew S. Poole. Michael is married 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20).

Beware of the Third Adult

Wednesday, February 13th, 2019

Divorce is never easy. This could be the “Captain Obvious” statement of the year. No one ever gets married thinking “the divorce from this person will be painless.” Of course not-people don’t get married with the thought going into it that divorce is inevitable. In fact, there are several clients at the Matthew S. Poole law firm that have declared Pre-Nuptial agreement was not contemplated prior to marriage because the dissolution of the marriage was unthinkable. “No way will we ever be divorced!” Sound familiar? Of course it does. You and I either are those people or we know people who come to mind immediately. And so I will repeat myself: Divorce is never easy.

No matter the reason for the divorce, there is always a recovery period for each party. Often times an ex-husband busies himself with his work, or an ex-wife occupies her time with the kids, perhaps one moves away to be closer to their family, or takes a new job. Personal feelings change and may also stay stagnant as life moves on ever so constantly. Everything is fine…until that fateful day that the ex meets that new someone else. I’ll call them the “third adult”.

As the title of this article suggests, I am not a proponent of the third adult in terms of the impact on children. I am also not a big fan of the forth adult. They are the people who make a family lawyer’s practice thrive. They are the new love, the new “voice of reason”, at least hopefully. The third and forth adults in this equation are the new people that one meets and begin a new and, hopefully, lasting relationship with. And they always have a different agenda than yours of just a few short years ago. That is, the new love interest comes into your life and, more importantly, the lives of your children, with a new and different set of priorities. BEWARE.

Beware does not mean steer-clear forever, but proceeding with caution. Beware from this writer’s point of view does not mean that meeting someone new and falling in love and starting fresh is inherently bad. Beware means please keep in mind the best interests of your children, as the new person in your life may not have adhere to these same priorities. All of a sudden there are yours, mine, ours, his, theirs, etc…. the already disjointed family dynamic takes on a whole new twist. Invariably what may have been an uncomfortable, awkward and time consuming holiday transfer of the children can become an all-out “battle royale” to determine at whose house Santa actually comes. Summer vacations become a contest instead of a relaxing time.

Your new significant other may not appreciate your child support obligation as a legal mandate. They may want to spend that “wasted money” on a new car. Your budget may not allow for all things that everyone wants and needs, and it’s always easier to appease the voice that is closest to your ear. Don’t fall into this trap! Not only is it the beginning of the next round of Contempt filings in Court, but it is not fair to your kids. Be cognizant of your children, their needs, and your legal and moral obligations to them. Also, your ex is the parent of you children and, in most cases, is not your enemy. Your divorce notwithstanding, you have a common goal: to raise your children to be happy (as happy as they can be)…to become well adjusted adults who thrive in their own lives, despite your own shortcomings. Don’t allow the new person in your life to negatively impact your role.

Let me now take a bit of the sting off of the harsh realities presented here. So far, all that I have stated is that the new person in your life is no good, all bad, not welcomed. Please understand that I am not at all suggesting that people who are divorced should not seek to find love and happiness in their lives. Nothing could be further from the truth. Happiness is (or should be) the ultimate goal for all of us. In fact, my children would both readily tell you that my only wish for them in their lives is for them to be happy. (Full disclosure: I am thrilled that my daughter is happy living in Denver, Colorado, despite the fact that it makes me quite unhappy that she lives so far away and I only get to see her twice a year…the fact is that her happiness is not contingent on my happiness.) I am, therefore, urging you parents of broken families to simply consider your children, and their happiness, before you put your own wants and needs, and especially the wants and needs of your new love intetests, at the forefront.

This article is meant to warn you against placing new priorities, because of new people in your life, where they are not proper. The theme of this article is consistent with my other offerings: keep the welfare, best interests and overall protection of your children as your top priorities, no matter in what new situation you find yourself. To do otherwise is, by definition, contrary to the best interests of your children. The law always values and encourages parental involvement and the bonds that come from interpersonal ties, as it should.

I will make clear to include more subtle points of law in my next addition and I hope you will read as I expound on this subject: Child Custody Modification.

Michael Louvier: B.S. University of New Orleans (1988), J.D. Mississippi College School of Law (1994)

ARE DADS STILL THE UNDERDOG IN A CUSTODY BATTLE?

Monday, December 10th, 2018

Let’s face it: Fathers who are “fighting” for custody of their children start out with the figurative “one hand tied behind their back”. But in the past decade or more, great progress has been made to allow for a more level playing field. Let’s briefly explore this subject and, hopefully, shed some positive light on this complicated issue.

I am not hesitant to use the phrase “custody battle”, but many times that is the best description of what this type of court case is, or becomes. Many cases might begin with the parents declaring to each other, their lawyers, their families, and most importantly their children, that they only want what’s best for the children. Some parents even try to adhere to this promise. But all too often the proceedings drag on and frustrations set in and what began as a “cordial” case turns into just what we didn’t want or expect: a Battle.

Fighting it out with your ex often becomes the only way to assert your rights regarding everything, including the custody and visitation of your children; unfortunately, the fight itself almost always makes the dad out to be the bad guy. That is, those dads who refuse to accept the “standard visitation” schedule of every other weekend and an extra day or two sprinkled throughout the month are classified as “combative” or hard-to-deal with. The old-fashioned mindset was: How selfish! Those guys are only thinking of themselves and aren’t putting the kids first, some might say. *A personal note: If someone suggested that I was only allowed to see my kids every other weekend as they grew up, there would be more than a battle to ensue – there may have been a pair of handcuffs involved in that conversation. Thankfully, the mindset in this area is more open to the ideas of “Joint Custody” and “Shared Custody” and other forms of co-parenting scheduling plans that include and facilitate the involvement of BOTH PARENTS, not simply more time with mom and less with dad. Of course, when mindsets change, the laws and court decisions follow suit, and that is encouraging.

There are several factors that each parent must consider when they are “battling” for custodial periods of time with your child. For example: always keep in mind the time constraints of your employment when you fight for the extra week-day. If you agree to, or are awarded by the Court, every Wednesday, but you must work until 6:00pm and you are unable to pick up your child from school, then what have you really gained? Geography and logistics must be considered, as well. Same scenario: Dad is awarded Wednesday and he must return the child to school on Thursday morning; however, he lives more than an hour away! The return trip to school must begin at 5:00 a.m. or earlier. Is this a victory for Dad? Is it a good situation for the child? Finances play a part (of course) as does the support system in place for each separated parent. Can Dad afford to take time off work for the extra time? And after this somewhat lengthy discussion, we have yet to mention the child’s wishes and needs. I believe it is safe to say that no loving parent – regardless of any other factor – would choose a custodial period with the child that interfered with an activity that is important to the child. Dads forced with this decision almost always defer to the wishes of the child. This becomes a sword that cuts both ways: now Mom and her legal team can suggest to the Court that Dad doesn’t want extra time.

The Conclusion, if there is to be one in this brief overview of an extremely complex issue, is that Father’s involved in a Divorce proceeding should take great care in avoiding the pitfalls of a “custody battle”. Consider the cost of “winning”. Who benefits? Who loses? Is there any common ground that should be explored? Has reasonableness been abandoned? And finally, but most importantly, what schedule and situation is best for the child?

Maximum involvement of both parents in the upbringing of the child(ren) should be the desired outcome in any case. In more and more jurisdictions, this is the presumption of what is in the best interests of the child. Father’s more and more are being considered “equal” parents. I see this trend as a good one – for Dads and for their children.

Matthew Poole is a Jackson, Mississippi family attorney specializing in domestic conflict resolution. He was selected as a 2018 top 10 family lawyer by the National Association of Family Attorneys.