Posts Tagged ‘chancery court’

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 Truth About Costly Kids

Monday, April 22nd, 2019

I absolutely love helping parents who love their kids and to fight for what is best for them….it is the most fulfilling part of a difficult job. I can easily relate to their plights simply because I am one of the crowd. I have fought through child custody cases since 2004. When I became a father with sole custody of my son in 2009, I particularly realized that children are an incredible blessing and also an expensive addition to our lives, even for those fortunate to have better than average incomes. I began to directly relate to so many of my clients, the ones who desperately wanted to raise their children as the primary custodian. Also noted is that the raw financial data regarding child-rearing is not particularly encouraging for most folks and presents a harsh fiscal reality for most.

Are you truly prepared to be a parent? With the risk of appearing heartless, I must say many of the people who contact my office are not even able to afford a pet, and quite far from affording a child. Let alone, they often struggle to even afford themselves. According to the U.S. Department of Agriculture, the cost of raising a child until age 18 is $233,610. Mind you, this does not include college or related expenses. The monthly expense far exceeds $1,200. As much as my heart hurts for the single mom of 2, 3, or 4 kids, I also see a society in meltdown because of the failure to acknowledge the basic expenses of our children. We simply cannot sustain a broken moral system where the government must fill the gap caused by poor decision-making of moms and dads alike.

Why do I point these matters out to my readers? I do not simply expect my advice will be heeded by most people after all. I hope that the truth will resonate for a few of you. Please consider another path or plain old abstinence before expecting a lawyer to fix your terrible financial plight due to the children you cannot afford. It is not only unfair to you, but to the innocent lives you brought to our world.

The last time I looked at the data, Department of Human Services in our state was chasing over a quarter-million (yes, over 250,000, almost ten percent of our entire state’s population) deadbeat parents for past-due child support. We are in terrible shape in this state if things do change. The government is simply overburdened and unable to fight for every innocent child effectively.

Now we should pivot slightly and look to college expenses and things get really scary. Obviously college costs have risen dramatically as of late and continue to do so. More than 19.9 million students are projected to attend colleges this fall. Fact: In 2019, the average annual cost of college education (room and board, tuition, fees) is approximately $21,000 at public schools and $47,000 annually at their private counterparts. That is some serious lifting for any parent, even with six-figure income.

Everyone can hopefully one day enjoy the experience of parenthood, but only if able to do so. Never forget that 14 percent of your child’s other parent’s (talking to you dad) adjusted income (usually around 10 percent of take-home pay) is not sufficient to raise a single child. The laws must be changed to hold those who create children sufficiently responsible for their outcomes. The choices we make ourselves must also be strongly considered.

In summation, Mississippi chancery courts exercise broad authority in determining all custody and support matters that come before them. Chancellors have broad discretion and will exercise them to the benefit of fairness for all, particularly your kids, but never forget that the law prefers those who help themselves first.

Matthew Poole is a Jackson, Mississippi domestic lawyer who specializes in domestic conflict management. He is a single father and passionate about the best interests of children. He will be speaking at the National Business Institute on July 18, 2019 at the Pearl, MS. Marriott.

Back to Square One: Revisiting “Maxims of Equity”

Saturday, November 3rd, 2018

What in the world is a “maxim” and how does this term relate to Mississippi chancery court proceedings? To put it simply, a maxim, within the context of custody and divorce law, is a truism that cannot be avoided. Maxims represent well-established principles of law and are deeply rooted in what the English legal system regards as law “agreeable to natural reason”. In other words, maxims are the highly regarded principles upon which chancery court finds its very core roots. Maxims are well-accepted as natural law, as opposed to law created by legislative proclamation or executive fiat.

The following is not a comprehensive list of the well-established maxims of equity have been utilized in each and every chancery proceeding, rather a short and palatable version of the ones seasoned chancery lawyers most often argue. Most apply in every case to some extent or another. They are, in no particular order, as follows;

  1. Chancery courts aid those who are vigilant. Those who rest on their rights and fail to act quickly to protect them are often barred by the doctrine of “laches”, which essentially curtails certain rights if they are sought after unreasonable delay. This concept is distinguishable from statutes of limitation and no specific numeric time period applies. The standard is highly subject to interpretation of what constitutes reasonable delay. Each court can interpret this concept much differently.
  1. One must have “clean hands”, or be relatively faultless in order to seek the intervention of the court. Although perfection is not required, those who have violated court orders and acted with virtual impunity are often shown the door-quickly. The court will not aid those who violate basic principles of fairness.
  1. The opportunity to be heard is not unique to divorce and custody proceedings, however, those fundamental rights elaborated by the 5th and 14th Amendments to the U.S. Constitution are given significant preference in terms of being chancery due process of law. Opportunity to be heard is soundly fundamental.
  1. Substance takes precedence over form. Although to a certain extent this shift in procedural dynamics has also been seen in damages/non-equity courts, the transition away from fact pleading and toward notice pleading is even more visible in courts of equity (chancery). Intent is more valuable than form of pleadings.
  1. All wrongs have a remedy, even if no statute prohibits specific conduct. Generally, and going back to 8th grade civics class, the legislature makes laws that are then interpreted by the judiciary. In equity courts, strict adherence to legislative proclamation takes a back seat to redressing all wrongs. A particularly pointed example of this function is when a party has failed to specifically make a claim that is within the general subject matter of the litigation but the opposing party is well-aware of the potential for liability. Often after a pleading is filed but prior to trial, facts and circumstances change. The court is not often inclined to hold you to a rigorous standard when this simple oversight occurs.

In summation, Mississippi chancery courts exercise broad authority in determining all matters that come before them. Chancellors have broad discretion and will exercise them to the benefit of fairness. Strict rules of pleading are not par for the chancery course. Although most litigants are willing to deal with the stress of domestic law, often a simple path remains elusive to those who are charged with excessive emotion. If you have a chancery court matter and need some fair advice from a seasoned litigator, feel free to give us a call.

Matthew Poole is a Jackson, Mississippi domestic lawyer who specializes in domestic conflict management. He is a single father and extremely passionate about the best interests of children.

Corporal Punishment vs. Child Abuse: A Thin Line

Wednesday, August 1st, 2018

Can your child be taken away because of a simple spanking? When I was elementary school at a public institution in Rankin County, Mississippi, I had the misfortune of enduring the school principal’s penchant for enforcing rules by use of a very large paddle, equipped with golf-ball sized holes in order to increase the velocity of each collision. In the early 1990’s, it was standard fare to expect a good old-fashioned whipping from school administration for playground roughhousing or any other number of youthful misdeeds. Boy, how times have changed.

In today’s world of political correctness and fear of legal liability, it seems that those days are long gone, and will likely never return. Parents have often asked our office whether or not a Youth Court or Chancery Court has the authority to take their children from their physical custody wherein there has been significant corporal punishment. Gone are the days of schools bruising the rear-end of a miscreant child (usually boys, alas).

Desoto County, Mississippi recently dealt with an appeal revolving around the question of distinguishing between reasonable discipline versus child abuse, and the line is very thin and broadly within the discretion of the trial court in civil matters. In this particular instance, the appellate court had to consider the sufficiency of evidence utilized by the trial court in removing four children from their father’s custody. At hand was a simple query, at least at first glance.

The appellate court first, and a matter of proper judicial due course, considered the bare language of the applicable Mississippi statute, section 43-21-105(m). In pertinent part, said statute provides that an abused child is one “whose parent….has caused or allowed to be caused, upon the child… emotional abuse, mental injury, non-accidental physical injury or other maltreatment”. Wow, talk about a broad definition, allowing wide discretion for the judge. However, the statute on point also states that “physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section”. Thanks for the semi-clarification, right?

It seems to me that the question of whether or not corporal punish ment of a child is violative of Mississippi law comes down to good old-fashioned common sense. While the criminal statutes regarding abuse of minors are relatively easy to interpret, the civil law remains open to broad interpretation. It is my hunch that any physical punishment that is accompanied by bruising or other visible signature will likely run afoul of the statute on point, but the margin for interpretation is razor-thin. Foremost, always remember that the court will have wide leeway in drawing the line between abuse and reasonable corporal punishment. No two judges are the same and may see the same thing differently. Reasonable minds may, and will often, disagree.

If you are dealing with allegations of abuse or neglect and need guidance and effective legal counsel, we will gladly be of assistance. Always trust your better judgment and recognize that any child punishment of a child must not be done out of anger. In the words of the American author and Unitarian minister Robert Fulgham, “All I Really Need to Know I Learned in Kindergarten”. Well said.

Matthew Poole is a Jackson, Mississippi family lawyer focused on case evaluation and domestic conflict management. He was admitted to the Mississippi Bar in July, 2004.

The Jurisdiction Determination in Child Custody Cases

Monday, June 18th, 2018

“Where are you from” is a fairly simple question, especially if you live and have lived in a certain state your whole life. If you have moved around, though, the answer may actually seem pretty complicated. In casual conversation, people commonly resort to phrases such as “I grew up in…” or “I’m originally from…” in order to distinguish their “home state” from a recent or current residence. When it comes to legal jurisdiction, however, a much more meticulous approach is required. Where you are truly “from” will determine which court has the authority to hear your case and ultimately control your future.

It should not be a surprise that child custody disputes exaggerate any confusion surrounding this question, particularly when a child moves with one parent to a different state from the other parent. Although there may be multiple states with the authority to rule on child custody matters, only one state will take jurisdiction. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs jurisdiction determinations for all child custody and modification of custody cases and prevents courts from issuing conflicting orders. This law has been adopted by 49 out of 50 states (including the District of Columbia, the US Virgin Islands, and Guam) and reconciles discrepancies between the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act, which previously attempted to provide these jurisdictional guidelines.

§ 93-27-201, Subsection (1) of the UCCJEA establishes the “exclusive jurisdictional basis for making a child custody determination,” which does not require physical presence of, or personal jurisdiction over, any party involved. Actually, these factors are not even sufficient to establish child custody jurisdiction according to part (c). A state only has jurisdiction over an initial child custody proceeding in the four situations summarized as follows:

It is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months and the child is now absent from this state but a parent or someone acting as a parent still lives in the state

A court of another state does not have jurisdiction through situation (1) or a court of the home state has declined to exercise jurisdiction on the ground that this state is a more appropriate forum and

The child and at least one parent or someone acting as a parent have a significant connection with this state other than mere physical presence and

There is substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships

All courts having jurisdiction under the situations described above have declined to exercise jurisdiction on the ground that this state is a more appropriate forum

No court of any other state would have jurisdiction under the situations listed above

Since the UCCJEA designates the home state as the best forum, that state will always have priority in custody matters. § 202 says that this exclusive jurisdiction will continue as long as the state maintains a significant connection with the parties and the substantial evidence is still in the state or until all of the parties have moved out of the state. If an emergency situation occurs (i.e. a child is being abused or was abandoned) then the state where the child is physically located may take temporary jurisdiction to secure his or her safety under § 204. The case will then be given to the home state, transferred to another state that has grounds for continuing jurisdiction, or possibly even kept by this state if the first two options are not available.

However, except as provided by §204 for emergency situations, no court can modify a child custody order made in another state “unless a court of this state has jurisdiction to make an initial determination” under § 201 (a) or (b) and (1) the other state decides it no longer has exclusive continuing jurisdiction or that a court of this state would be more convenient forum or (2) it has been determined that the parties do not presently reside in the other state.

This synopsis certainly does not include every detail of the UCCJEA, but Attorney Matthew S. Poole has handled a countless number of these complex cases. If you have any questions or would like to set up an appointment, please don’t hesitate to call us. We would be happy to explain how the UCCJEA applies to your unique situation.

Written by Jessica Jasper, J.D. Candidate, Class of 2020, Mississippi College School of Law