Posts Tagged ‘Canton’

Child Custody Devils-Always in the Detail

Sunday, August 5th, 2018

First, I would like to pay a short tribute to my Associate Attorney, Honorable Kenneth Davis, Esq., whom I have had the pleasure of mentoring for the past 3 years. He is moving on to a new venture today, and his steady hand and careful deliberation at the helm in the treacherous waters of domestic litigation will be deeply missed. We wish him great success and happiness and will always hold him in high regard. God bless, Attorney Davis.

Now, forward we move into a new era of life and law as a family attorney with a new addition to my staff, Ms. Linda Wilson, a 42 year veteran stenographer (court reporter) and former assistant to a retired Chancery Judge in Madison and Yazoo County, Mississippi. She is very knowledgeable and we look forward to her addition to my office.

But I digress, and feel compelled to relay a brief story about the vast importance of detail in custody related legal proceedings. And this particular tale is rooted in a basic mistake made by opposing counsel in a custody modification case. Buckle up, this story proves that truth really is stranger than fiction.

About 8 years ago, I had a very interesting case where I represented the mother of the 4 year old girl and was seeking relief from the courts on an emergent basis because the father of the child was caught shoplifting donuts from a Walmart in South Mississippi. One of the most bizarre things about this case is that the father had a relatively high paying job but appeared to have a proclivity for stealing for the sheer thrill of it. Sad, but true. The little girl was not only present with dad during the heist, but also during the 110 mile per hour police chase that ensued. Yes, these things really do happen

When I took the deposition of the father I asked him a question regarding whether or not he was under the influence of an illicit drug or alcohol during this scandalous escapade. When I asked the question, he said simply, “Well, I was–”, and his lawyer stopped him to interpose an objection of some sort….and this is where the details ended up sinking my opponents case in one fell swoop. (Not to break my arm patting myself on the back, but I appropriately moved along to another subject at that point altogether instead of arguing the merits of the lawyer’s objection).

Now, this is where it turned into a particularly lovely case for my client. When we got into Rankin County Chancery Court, I did what lawyers do-exploited any weakness of my opponent to the advantage of my client. Even though it is true that the case would have likely been won even without the interesting deposition testimony, I jumped on what appeared to be a terribly destructive admission by the donut-theiving daddy, and the judge ate it up.

If my opposing counsel had done is job correctly, he would have had the opportunity to correct that damaging apparent admission with follow-up questions however he neglected to do so. And so, as the saying goes, sometimes it’s the little things that kill. As you already guessed, my client got a very favorable result.

Citing my second favorite basketball player of all time (behind Michael Jordan, of course), Kareem Abdul-Jabar, it’s usually the smallest of things that make the difference between winning and losing. And win, we did.

If I can help you do the little things right in your divorce or custody case well and to pay attention to the detail, please give us a call.

Matthew Poole is a Jackson, Mississippi domestic relations attorney with 14 years of experience in family law. He was admitted to practice in 2004 and lives in North Jackson with his son, Lucas.

Military Retirement: Who Gets It in A Divorce?

Monday, July 16th, 2018

Our nation’s troops endure conditions that most of us can only imagine, although sadly they are not immune to the challenges that marriage present. The stress of a career in our nation’s military can have a huge impact on the ability of relationships to last and thrive. When a service member is heading for divorce, a huge question in that process is the distribution of military retirement. This is a valid concern, as the non-military spouse may not be working so as to provide childcare or for any other number of reasons.

When retiring with at least 20 years of active service, a service member receives a retirement pension for the rest of their lives. That means if a person becomes an active military service member right out of high school, they will qualify for that pension around age 40, which is not an uncommon age for someone going through a divorce. The Uniformed Services Former Spouses Protection Act, passed in 1982, states that military pensions are to be treated as marital property when the time of marriage and service overlap. Under the USFSPA, the marriage must have lasted 10 years during which the military spouse performed 10 years of creditable service to be eligible for that retirement pension. This does not mean that the non-military spouse automatically receives half of the pension, rather it gives courts the authority to divide that pension in accordance with that court’s state property division laws. In Mississippi divorce cases, it has long been held that chancery courts have the authority to order a fair division of property acquired through the joint efforts of the parties. As aggravating as this may be for both litigants and advocates alike, chancellors in Mississippi are trained to make these decisions that are fair and equitable to both parties.

As with any divorce case, every military divorce case will be different in its own way, and there is no way to accurately guarantee a specific result. Even the courts say there is no formula! However, a military marriage is a two-way street of effort and sacrifice, and courts acknowledge that non-military spouses are as important to those marriage as our service members are to the military. Unfortunately, the stress of marriage and military life infiltrates military unions as easily as civilian ones. The most important part is finding an advocate that understands the plight at hand, and knows that courts will take steps to protect the service member’s interest in their hard-earned pension while attempting to ensure that the non-military spouse is adequately taken care of. If you or someone you know has a question about the role of a military pension in a divorce, call the Law Office of Matthew S. Poole. Our office holds the military in very high regard, and we will work to give you honest answers to any question you may have.

Great, One More Lawyer: Guardians ad Litem

Monday, July 9th, 2018

It’s an age-old joke that the more lawyers are involved, the more confusing (not to mention expensive) a situation tends to become. Whether well-founded or not, there are many situations that having lawyers involved is simply a foregone conclusion. One of the most prevalent of these examples is a case involving the well-being of a child. In many of those cases, a separate attorney will be added to the case to act as a guardian ad litem (“GAL”, literally guardian at law) to represent the best interests of the child or children involved. While of course many parents have the best interests of the child in mind during litigation over custody, such an emotional type of litigation can make it difficult for the child to remain at the forefront of concern.

A Mississippi court will appoint a GAL when there is a claim of abuse or neglect of the child by one or both parents. This could be physical abuse, mental abuse, sexual abuse, or neglect such as failing to provide the child with proper shelter and food. Other situations where the appointment of a GAL is mandatory in Mississippi include:

If DHS seeks protective services for a vulnerable adult and that person lacks capacity to waive the right to counsel;

In eminent domain and condemnation proceedings for parties who are minors or otherwise incompetent and are without a general guardian;

In a divorce proceeding based upon incurable insanity, if the defendant otherwise has no legal guardian;

If the mother dies while a paternity case is pending;

In a guardianship action where an interested party wishes to establish an estate plan, and it is determined the ward will remain incompetent during their lifetime;

Termination of parental rights;

Contested adoptions; and

If an individual convicted of felony child abuse wants visitation the child.

This is not an exhaustive list, and therefore it is evident that in almost any situation where the possibility of the child playing second fiddle to an issue in a case, Mississippi courts will appoint a GAL. This is an attempt to ensure that the child is treated fairly, and, above all, not taken advantage of or used as a pawn in litigation. Unfortunately, the nefarious use of a child’s presence in a case to get the upper hand is not evident at the outset of the case to either the lawyers, judges, or even the parties themselves.

Mississippi attorneys who serve as guardians ad litem must undergo training in juvenile justice provided or approved by the Mississippi Judicial College, and must renew that certification every year. The appointment of a GAL is an important step in litigation, and parties to suits in Mississippi should feel comforted in knowing that the attorneys serving in that role are required to refresh their memory of how to properly serve as a GAL. It can be intimidating to feel as though a party has one more person to impress or convince during litigation, on top of the judge, their lawyer, their friends and family, and their child or children. However, a GAL is involved in the case to represent the child, and their involvement should be welcomed and their input appropriately considered. Their work truly is selfless.

Child custody cases are some of the most time-consuming, expensive, and stressful cases that come through our office. It is our primary practice area. While many times the events during litigation seem petty and trite, the outcome is one that will shape the course of the relationship with the parties and the child(ren) for years. Therefore, the presence of a well-respected guardian ad litem is a large boost in the confidence that the best result will be reached for the child. While many times it is true that the mere presence of lawyers will breathe life into a conflict, suits impacting children are ones that a better result can be reached by having another attorney join the fray. If you or someone you know has a question about child custody litigation and the role that a guardian ad litem plays in litigation, call the Law Office of Matthew S. Poole. We have the experience and knowledge to answer almost any question you may have about this process, and the benefits that come along with the appointment of a GAL.

Importance of a Father in the Home

Saturday, May 12th, 2018

Maintaining the family unit should be the number one goal of any mother and father. Even when going through a divorce, it is essential that both parents are just as involved in their child’s life as they possible can be. However, with divorce ever on the rise in the United States, an all too common consequence of parent’s separating can be an absence of the father in the home. This can mean a great deal of adversity for the children later on in life. Be it an increased risk of poverty or a higher chance of incarceration, living without a father puts a child’s life squarely at risk for all manner of difficulty.

Since 1960, the percentage of children living in two-parent homes has decreased dramatically from 88% down to 66%. This drop has been caused by many factors, but the most prevalent one is the rise in divorce. Across the nation, married couples are calling it quits and their children are stuck in the middle. Unfortunately, this increase in divorce has made some dads pack up permanently, leaving their ex-wife with the kids, and their kids without a father-figure. This can have an indescribable effect on the life of a child.

According to the Census Bureau, there are 24 million children in the United States, and one out of three of them live without their biological father in the home. Compared to children who live with both parents, these children are four times more likely to live in poverty, and two times more likely to drop out of high school. Combine these statistics with the poverty income level in the U.S. only being $12,140.00 a year, a child living in a single parent, fatherless home has to escape becoming another statistic just to overcome the odds already stacked against them.

Risks of poverty and lack of education aside, there is a darker and more horrifying concern of growing up without a father. One of the more striking statistics provided by the Census Bureau shows that 63% of youth suicides in the United States are performed by children of single-parent homes. This is an astonishing number. To put this data a different way, one of the only single identifying metrics that connects two thirds of all children from around the country that commit suicide is the fact that they are raised in a single-parent home. This alone shows the importance of why maintaining a two-parent household is integral in a child’s life.

Going through a divorce can be the toughest thing someone has to go through. Although most everyone would rather not split up their own family, it is often not that simple. When mom and dad cannot work it out, or even refuse to work it out, the child suffers. Custody battles can be the same way. When one parent refuses to let mom or dad be a part of their kid’s lives, it hurts the child most of all. If you want to be a part of their child’s life, but are struggling because of divorce, custody, or your spouse is refusing your rights as a parent, please do not hesitate to call us. The Law Office of Matthew S. Poole is well-seasoned to handle these types of situations and we would be happy to help.

Written by J. Tyler Cox, J.D., Class of 2018

Parental Alienation: Why You Should Act Fast

Thursday, May 3rd, 2018

Pretty regularly at our office, we unfortunately have child custody cases where one parent continually makes derogatory remarks about the other parent in front of their child. This is one of the worst things a parent can do when wanting to obtain custody, especially when the child is not old enough to legally have a preference with which parent he/she would rather live with. What many parents do not realize is that a parent has an inherent duty to foster and facilitate the relationship between their child and that child’s other parent. Disparaging the other parent can not only hurt their case in the eyes of a chancellor, but it can also adversely affect the child. From a chancellor’s perspective, belittling the other parent in an effort to negatively impact the child’s relationship with them is wholly improper and unacceptable.

When the “brainwashing” of a child by one parent gets so bad that it manipulates the child into disliking or not wanting a relationship with the other parent, there is more than likely a case of parental alienation. Parental alienation is a term used by child custody lawyers and child psychologists alike to describe what happens in situations where a parent has made conscious efforts, by negative words or actions, to upset their child’s relationship with the other parent. An example of this would be where a mother has spoken badly about a father, made derogatory remarks about him, or even lied about him to the child, all in order to alter that child’s feelings towards his dad, so that the child would not want to live with him.

Other examples of behaviors that can cause parental alienation include one parent discussing details of the parent’s relationship, scheduling the child’s activities during the other parent’s visitation time, not informing the other parent the times of those activities in order for them not to attend, denying the other parent important school and medical records, and giving the child ultimatums encouraging them to pick one parent over the other. This type of behavior has major consequences, and if not addressed as soon as possible, can permanently destroy a child’s relationship with their parent. A child’s mind is very susceptible, especially to a person that they instinctively trust – as they would a parent. Prolonged exposure to this type of influence deteriorates little by little any chance of a relationship they might have had with one of their mother or father.

In years past, parental alienation issues could only be brought up when there was a non-disparagement clause in the custody order. This prevented parental alienation from being any more than a contempt issue. Now, however, chancellors in Mississippi consider disparagement through the parenting-skills factor under Albright. With disparagement now being a consideration in Albright, it constitutes a material change sufficient for modification of custody.

Isolating a parent from their child is serious, and in the end, it does more damage to the child than it does to the other parent. To put it plainly, parental alienation is a form of child abuse. Chancellors know this, that is why any hard evidence that a mother or father is molding their child’s emotions negatively toward the other is met with extreme prejudice. Absent neglect and endangerment, nothing can kill a parent’s chances of being awarded custody more than harmfully reshaping their child’s relationship with their mom or dad. If you believe that this is happening to you, or someone you may know, please give us a call. We have the expertise to handle parental alienation cases, and any of your child custody needs.

Matthew Poole is a Jackson, Mississippi domestic attorney who specializes in family litigation. He was admitted to practice in 2004.

Don’t Just Ask for a Restraining Order

Sunday, April 22nd, 2018

Have you been physically assaulted by your spouse or the father (or mother) of your child? Have you contacted the local police and other authorities regarding the abuse? Oftentimes children are the primary victim of their own parents’ hatred of one another. If your children have witnessed one or more incidents of physical abuse, they are likely viewed by Mississippi law as victims of abuse and neglect themselves and have multiple avenues of recourse. While courts with criminal jurisdiction such as Justice Court, County Court, and Municipal Courts are able to provide you with a peace bond or other means of restraining your spouse/opposing parent from the harassment and stalking that so often accompanies domestic abuse, they have severe limitations.

Unfortunately, the separation of powers between the various types of courts in Mississippi can present additional challenges to the actual victims of domestic abuse. Mississippi Chancery Courts are of limited jurisdiction of all matters set forth in §159 of the Mississippi Constitution of 1890. The State of Mississippi is comprised of twenty (20) Chancery Court Districts (see §9-5-3, Mississippi Constitution, 1890). There are six (6) specific subject-matter areas in which Chancery Court exercises exclusive, complete, and ongoing jurisdiction, including “All Matters in Equity” and “Minor’s Business”. “Equity” is an often confusing and misinterpreted term. According to Black’s Law Dictionary (Seventh Ed.), equity has a four part definition, the first two of which are particularly telling as to the depth and breadth of Mississippi Chancery Court subject-matter jurisdiction. First, Black’s asserts that equity is “Fairness, impartiality, evenhanded dealing”. Secondly, It is “The body of principles constituting what is fair and right; natural law”. Clearly equity isn’t a lucid concept, rather a notion that is reflective of available recourse as to principles of justice.

Victims of domestic violence are able to obtain relief from Chancery Court per the procedure set forth in Mississippi Code Annotated §93-21-3 as well as those governed by Mississippi Rule of Civil Procedure 65. As codified, the victim of domestic violence, married or unmarried, may go so far as to award the abused parent possession of the home or to require that the perpetrator provide adequate housing including utilities and other related expenses. Also, Chancellors are empowered by statute to encumber jointly held assets and make adequate provision for the care and support of minor children as well as the victim. Custody of the children, child support, and visitation are all within the realm of properly exercised equitable judicial discretion. Equity permits that Chancellors have broad authority in the spirit of protecting those who cannot protect themselves.

In short, Mississippi Chancery Courts are empowered by legislative proclamation to address a variety of issues that adversely affect children, as they too are considered victims of domestic abuse. Often it is assumed that a court other than Chancery Court is able to afford domestic violence victims some level of redress outside of the scope of a restraining order itself. However, as previously stated, the exclusive nature of Chancery Court jurisdiction as to “Minor’s Business” and “All Matters in Equity” precludes other arms of the judiciary from ordering such relief to victims.

The victim of domestic violence not only is afforded relief in various forms both equitable and by statute, but retains significant advantages in the determination of both temporary and physical custody. Mississippi Code Annotated §93-5-24 provides in pertinent part that;

“there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest (i.e. in regards to the commonly cited Albright v. Albright factors) of the child to be placed in the sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered. This presumption may only be rebutted by a preponderance of the evidence.”

It is clear that victims, parents and children alike, are afforded significant protections from those who would harm them. Although the presumption that violence perpetrators are not proper custodians or decision-makers for a child may be overcome it presents a sufficiently robust obstacle to those persons who have been restrained, enjoined, or otherwise found civilly liable for home-trauma. To be clear, the ball is not in the abuser’s court. Our office is fully able to address all of the challenges that domestic violence creates.

If you or someone you care about is a domestic violence victim and is in need of an attorney with experience as to the best path forward, my staff and I are ready to provide you with the resources to obtain justice. Our office exclusively handles domestic litigation and is unlike so many other firms who lack the client base to remain focused on these matters. We have 14 years of experience in this sub-category of Mississippi law and the will, desire, and knowledge to ensure that equity will be done.

Matthew Poole is a Jackson, Mississippi domestic attorney who specializes in family litigation. He was admitted to practice in 2004.

Hire a Lawyer… Fast

Wednesday, April 4th, 2018

Getting served with legal papers is not a fun experience. There is really no other way to put it. It doesn’t help that these papers are often served on the person at work to avoid confrontation, which adds to the embarrassment and confusion. However, as stressful as being involved in a lawsuit is, swift action in hiring counsel is an extremely important step in addressing it.

One of the common scenarios given in my first year of Civil Procedure was that clients would be served with papers requiring an answer (30 days in Mississippi), would lay the papers on the counter, and forget about it for 26 days. They would then see the papers while cleaning up and realize that they needed to hire a lawyer. While it may be tempting to try and ignore the fact that you are being sued, you should take fast action to protect your rights to be heard.

In custody actions, the summons is different than one requiring a written answer, and provides the person served with a time and place certain to appear and defend themselves. That hearing is called a temporary hearing, because it outlines the Court’s order on what the parties are to do until trial. This temporary order includes the parameters of visitation with the child as well as the support obligation of the parent who is not exercising primary physical custody. Depending on the space of the court docket, these temporary hearings are usually not set for very far out from the service of the complaint, so that the party bringing the suit can get some temporary relief while awaiting trial.

When you are served with papers such as these, don’t lay them on the counter and forget about them! As Jimmy Two Times would say in the 1990 film Goodfellas, you need to go “get the papers, get the papers.” Get those papers and take them to a lawyer before that temporary hearing date so that you and your attorney can talk about what will be the most effective strategy from there. The sooner you hire a lawyer when you are served with papers, the better. If you are served with custody papers, call the Law Office of Matthew S. Poole. We have the skills and expertise to make sure the proper strategy is in place before the temporary hearing so as to get you the best result in your case.

Written by J. Tyler Cox, J.D. Candidate of Mississippi College School of Law, 2018.

Alimony as Punishment?

Wednesday, March 28th, 2018

Probably the most common misconception about alimony is that it is a punishment for the person who has been ordered to pay it. Some believe that if their spouse has cheated on them, or has engaged in any type of misconduct, that they are entitled to alimony simply based on fault. This is simply not true. Basing alimony wholly on whether the other party is at fault would basically make alimony an award for punitive damages, which is a totally different beast altogether. Although fault is a factor when considering alimony, the main hurdle in any alimony dispute is need.

Punitive damages are damages that exceed simple compensation and are awarded to punish a defendant. Punitive damages do not take into account the need or income of the person being awarded those damages, but rather serve as a warning or discouraging measure to make sure that other people do not engage in similar behavior. For example, punitive damages are commonly used in torts cases where a court punishes a company for a misdeed in order to stop it from doing the misdeed again and to dissuade other parties from doing the same. Punitive damages are responsible for the TV commercials and billboards that speak of large awards won for clients.

The purpose of alimony is to offer support for a spouse who is financially-dependent on the other. Even though fault is a factor that a court will look at, a court will focus primarily on the need of the spouse seeking alimony. In other words, alimony can be awarded to a spouse if that spouse is in need of support because they are not equipped to maintain the level of lifestyle that they have grown accustomed to while being married. For example, if a wife never had a job while married and now is getting a divorce, a court may award her with alimony so that she may begin to get back on her feet since the main income earner in her household is no longer present.

There are four types of alimony:  (1) Periodic Alimony, the more traditional type, with no set termination date and allocated month to month based on need;  (2) Lump Sum Alimony, awarded as a fixed sum that can be paid all at once or in installments;  (3) Rehabilitative alimony, developed to assist a spouse when reentering the workforce after their marriage; and  (4) Reimbursement Alimony, awarded to a spouse who supported the other spouse through undergraduate, graduate, or professional school. A court may award just one type of alimony or a combination of the types.

While alimony and punitive damages may seem the same, they serve two totally different purposes. Punitive damages are a punishment payment made out to the other party, and while people who are ordered to pay alimony may see it as a punishment, alimony is actually just based on the need of the other party. There are two totally different criteria when awarding both punitive damages and alimony. Courts in Mississippi will in fact look at fault when awarding alimony, but only after an intense need-based analysis by the chancellor to determine how much and what type should and will be awarded. Confusing these two are very common among people who come into our office, and we are well equipped to answer any questions that may arise when dealing with these issues. Contact our office if you or anyone you know have any questions about alimony, awarding alimony, or any other questions please do not hesitate to ask.

Mississippi Child Custody Factors: Stability of Parent’s Home and Employment

Sunday, March 18th, 2018

Stability is one of the most important things in the raising of a child. Kids have it tough, and having a stable home gives them one less thing to worry about. As such, in custody cases the court will take into consideration the parents’ abilities to provide a solid place in which to raise a child. Kids are also expensive, so the stability of employment will also be examined, as stable employment means steady money coming in to support that child.

There are several indicators of stability of a home environment that can help a court make this determination. If one parent has lived in the same place for an extended period of time and the other has moved a high number of times, it would appear that the child would have stable, predictable housing. Stability can also come from routines within the household. If one parent can show that while in their care the child goes to bed at a reasonable hour, gets three squares, and brushes their teeth twice a day, that would show to a chancellor that the home is stable.

The stability of the home can also encompass other things, such as substance abuse or violence. A parent who has had issues with drugs, becomes intoxicated often in the presence of the child, or has frequent guests who do these things will have a tough time winning this factor in a child custody case. Violence toward others, especially to the child, will also give a judge concern with giving custody to that parent.

Firmness in the parent’s employment will also be examined in child custody cases. Much like when a boss is looking at an interviewee’s resume, a judge will be concerned if one parent has been terminated from several jobs recently. On the flip side, if one parent has held down the same job or has received promotions at work, that parent will be viewed as the more able to provide for the child.

Children have an absolute need for stability. They are going through life and learning along the way, and knowing their home environment will be the way it is gives them more ease. With stability, kids are free to devote their time and energy to doing things that kids should be doing. Firmness in the home and employment is one of the most important things you can show to a court in a child custody case. That shows that you can use your time and energy to being there emotionally for the child instead of having to worry about shelter or a paycheck. If you or someone you know has a question about your child custody case, call the Law Office of Matthew Poole. We are knowledgeable about these cases, and will give you an honest answer.