Posts Tagged ‘Chancery’

The “Other Factor” That Can Sink Your Custody Claim: Alienating Child Affection

Monday, August 20th, 2018

I was recently in trial in the northern part of our great state and had a unique case wherein I had the good fortune of securing custody of a four-year-old little boy for my client, the father. The case was one of the most difficult I have ever handled in 14 years- both legally and emotionally. It was a roller-coaster of facts and subjectivity of the law, to say the least. The opposing attorney was highly competent; a seasoned prosecutor from Lee County- one of the best I have ever faced.

My client was guilty of some degree of minor violence; domestic abuse which was relatively easy to prove, and yet he obtained custody of his son. How can this happen, you may ask, and rightfully so. It seems the long odds stacked against my client were impossible to overcome. This case lasted 23 months in total. The victory was by a razor-thin margin. I was on hanging on every word from the court and counsel opposite until the very end.

Any custody attorney will harp on the factors a court will consider in determining the best interests in a child’s physical placement. Mom no longer has a clear and plain advantage, due in large part to the equal protection clause of the U.S. Constitution. The “tender years” doctrine has been significantly eroded, to the point that only breastfeeding an infant child confers some advantage to mom. Dad now starts on equal footing in a custody battle for all practical purposes. As a single father with sole legal and physical custody of my son, I have reaped the benefit of the recent change in law.

Beginning January 10, 2018 our office began a series of articles outlining all of the Albright factors- the defined matters for a court to consider in a custody dispute. We did not write only one article on the only non-specific Albright factor which is the most subjective; the one that is most easily described as a “catch-all”. Up for grabs and potentially up-ending any custody case are “other relevant factors”. What could these possibly be?

In all of the custody experience I have, never did I imagine that I could win a custody case based on these mysterious and elusive “other factors” when my client lost more than half of the specified Albright issues. Not in a million years did I believe that some undefined, highly subjective issue would win the day. And then, exactly that occured. I am still somewhat surprised by the result– pleasantly surprised, that is. The ugly head of parental alienation was the “other factor” that swayed the balance to my client’s victory.

Parental alienation of a child has always been regarded as paramount to a Mississippi court- even more so lately. That said, I have increasingly witnessed first-hand that if the alienating parent’s behavior is severe, courts will likely deem it to be tantamount to child abuse, negating what would be an award of physical custody to the opposing parent. To be frank, a decade ago this “other factor” would have been considered as just another Albright issue. Today, it can upend an entire case. That is music to my ears. Times have certainly changed.

Alienation comes in many shapes and forms. Most often it is in the nature of passive-aggressive parental alienation; making it difficult to get a hold of a child by phone, making subtle comments about the other parent’s morals and character, or even stoking a child’s concern about whether their other parent cares about them. Other times parental alienation takes on an overtly aggressive form.

The case that prompted me to write this article involved mom, who had a bi-racial son, instructing him to call his father and his family a “bunch of n___ers”. And it was all caught on tape. It didn’t happen only once, this four-year-old little guy, half African American, had made the infamous N-word a part of his vocabulary, all thanks to mom. It was horrible to hear on tape, heartbreaking at the very least.

The focus of this article is not necessarily parental alienation, it is a forewarning to parents who engage in extreme behaviors to the psychological and emotional detriment of their child. Be it excessive shaming of a child, prolonged absence, or just plain verbal cruelty, beware of the “other factors”–they can flat sink what would have otherwise been a custody victory. Chancery courts have broad discretion in child custody matters, and anything you say-to your child or anyone involved-can and will be held against you.

My last piece of advice is relatively simple. Mother Theresa once said, “Not all of us can do great things. But we can do small things with great heart”. I couldn’t have said it better. When navigating the treacherous waters of child-custody litigation, do not forget that children need love, happiness, and innocence of adult issues as much as they need food and water. It is easy to lose sight of this fact when angry at an ex-lover. Keep sight of what matters most: protecting your child from turmoil and shielding them from despair.

If you are involved in a child custody case that requires a robust knowledge base and formidable experience, I will gladly attempt to point you in the right direction. Be forewarned- simple answers to complex issues, particularly those involving child custody, are elusive and require a high level of competency. If you need just that, contact us anytime.

Matthew Poole is a single parent of an eight year-old boy, Lucas. He is well-acclimated to the various challenges that face single parents, both professionally and personally. His practice has been focused on child custody matters for 14 years as a parental advocate.

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.

Mississippi Custody Factor 3: Parenting Skills

Thursday, February 1st, 2018

Considered by some to be the “smoking gun” in child custody cases, the determination of which parent has the better parenting skills is pivotal in a chancellor’s decision in awarding custody. Before entering our office, many clients feel anxious about the weight of this particular factor because they feel as though they may be singled out as not being able to raise and nurture their child. However, while the determination of which parent has the better parenting skills seems like the most important element in a child custody case, it is only one factor that a chancellor weighs in making their decision, and a factor that could wind up favoring both parents equally.

When weighing this factor, courts look to which parent has the willingness and capacity to provide primary child care. This can include being a stay-at-home mother, being actively involved in the child’s schooling, and acting as the primary disciplinarian. Courts may also look to see which parent contributes more to the child’s social needs, such as driving them to and from sport’s practices. If one parent is unwilling or unable to provide this type of care for the child, then the court will not weigh this factor in their favor. This can obviously result from a number of aspects about a parent’s life, most notably employment demands.

One misconception that many people read into this factor is that it will always clearly favor one parent over the other. Many times, courts find that this factor favors neither parent, because both express a desire and willingness to provide for their child. In this situation, a court would turn to other factors to decide the custody of the child. Another worry that clients seem to have about this factor is the strength of the words “ability” and “willingness.” Being deemed to not have the ability or willingness to raise child will surely have a profound effect on a parent, however all is not lost when this occurs.

Many incorrectly believe that this factor is the main decision regarding a chancellor’s judgment of who the better parent is to raise the child or children involved. It is not. Although an important factor, the determination of which (if either) parent has the best parenting skills is just one of several factors that the court weighs in a custody case. If you or any one you may know has a question, or is unsure about the law pertaining to custody, call the Law Office of Matthew S. Poole. Our office can answer any question that arises about these factors that you may have, and can help you through this unpleasant time. Please continue to follow this series as we explore and explain more of the Albright factors.

Age 12: Not A Magic Number

Wednesday, October 11th, 2017

The law is full of misconceptions, and one of the most common ones that our office receives calls about is the role a child plays in a custody case. Many people seem to believe that when the child reaches age 12, they have the choice of which parent to live with. While age 12 does have some significance in custody cases, it does not give the child license to make that decision entirely on their own. It does, however, allow the child to express a preference, and the way the child chooses to do that may largely affect the outcome.

It is often a joke with lawyers that if we allowed children to make their custody decision, the child would pick whichever parent allows them to jump on the bed and have ice cream for breakfast. That is a slight exaggeration, but judges acknowledge that many 12-year-olds do not have the maturity to make the best decision for themselves. Several factors go into the judge’s decision on how much weight to give the child’s preference, such as the child’s age, their reasons for their preference, and the judge’s personal sense of the child’s maturity level.

If the child has good reasons for picking the parent they want to live with, a judge will most certainly consider the child’s preference. Good reasons include the school situation, the home environment, and, to some extent, the child’s community record. Reasons that will most likely not persuade a judge include picking the more lenient parent, being closer to a girlfriend or boyfriend, or, like the old joke goes, the parent who lets the child eat pizza for every meal. Ultimately, the case largely leans on the child’s ability to make a thoughtful, reasonable argument to the judge about what living arrangement is in the child’s best interest. Below are some examples of good and bad arguments by a child for their preference.

What may work: “Your honor, I want to live with this parent because I believe this environment is best for my personal growth and educational opportunities.”

What will probably not work: “Your honor, this parent is stricter than the other, and therefore I do not wish to live with them.”

A child’s living arrangements is an extremely important decision, and courts prefer to have the child involved as much as possible. Allowing a child of 12 years or older to be able to show a preference and giving them the opportunity to speak on their behalf achieves that while still giving the court enough control over the situation to make the decision that is in the child’s best interest. We often hear the misconception that the child has control over their custody arrangement, and while they do play a role, it is not as great as many people believe. If you or someone you know has a custody problem, call the Law Office of Matthew S. Poole. Our office has the experience and knowledge to properly address your case and achieve a fair result. With any questions, call our office at 601-573-7429.

In Loco Parentis: A Mile In Their Shoes

Wednesday, September 27th, 2017

Many of us have figures in our lives that mirror the role our parents play. Someone you trust, respect, and love. In some adult-child relationships, those people can step into the role of a biological parent. The doctrine of in loco parentis, which roughly translates to “in the place of a parent” addresses these relationships, and attempts to protect the best interests of both the child and the adult. Because of the delicate nature of these situations, Mississippians should know their rights when they believe that a child belongs with them instead of the natural parents.

When a person stands in loco parentis, they have assumed the status and obligations of a parent. Farve v. Medders, 241 Miss. 75, 81, 128 So.2d 877, 879 (Miss. 1961). This means that person provides parental supervision, support and education as if the child were their own. W.R. Fairchild Constr. Co. v. Owens, 224 So.2d 571, 575 (Miss. 1969). In loco parentis status carries the same rights and liabilities that belong to a natural parent, including a right to custody of the child against third parties. Farve, 128 So.2d at 879.

Although in loco parentis grants these rights, the rights of the natural parents are still superior. Mississippi law recognizes the natural parent presumption, which presumes that the biological parents of a child are the best guardians for that child. A third party’s in loco parentis status, standing alone, cannot by itself rebut that natural parent presumption. Smith v. Smith, 97 So.3d 43 (Miss. 2012). For a third party to rebut the natural parent presumption, it must be shown by clear and convincing evidence that 1) the parent has abandoned the child; 2) the parent has deserted the child; 3) the parent’s conduct is so immoral as to be detrimental to the child; or 4) the parent is unfit, mentally or otherwise, to have custody. Smith, 97 So.3d at 46. This is obviously a high burden, especially given that clear and convincing is the highest standard of proof used in civil courts. Once the presumption is rebutted, courts may then decide the custody of a child using the Albright factors.  http://www.mspoole.com/case-results/albright/.

Children deserve to have the best parental figures available to them. Unfortunately, sometimes the best parent is not the biological one. When someone stands in loco parentis to a child, that child depends on them to be there for them, and the law can help that person keep their rights to do so. If you or someone you know has a question about in loco parentis rights, call the Law Office of Matthew S. Poole. Our office has the knowledge, experience, and passion needed to best address your legal situation, and to help you keep your rights to foster a relationship with a child who needs you. To schedule an appointment, call our office at 601-573-7429.

How do Mississippi Courts View Joint Physical Custody Arrangements?

Friday, September 1st, 2017

Very commonly our office receives inquiry from parents seeking to obtain joint physical custody of a minor child or children. It is first important to recognize the distinction between legal and physical custody, which topic has been discussed in several of our previous posts, but I digress. The basic logic that is employed by the majority of Chancery Court judges in Mississippi is that it is preferable for a minor to have a primary physical residence, i.e., a soft place to land on a consistent basis without excessive “switching” of residences. Also, consider that most public school districts require proof of primary residence (as in one primary “home”) in order to meet admission criteria.

It is notable that statute in Mississippi mandates, with rare exception, that courts must approve of joint physical custody agreements. Therein is the rub: rarely are former lovers able to form an agreement that both can live with due to the highly emotional nature of child custody litigation whether in a divorce or otherwise.

There is no question that most commonly chancery judges prefer to award primary physical custody to the person deemed to be the better parent (based upon the best interests of the child) and to grant only standard visitation to the other. Standard visitation will be discussed at length in an upcoming entry, but basically consists of every other weekend, 10 days during the Christmas Holidays, alternating major holidays/birthdays, and two 2-week periods of summer visitation.

There are several judges we deal with on a regular visitation that local domestic attorneys refer to as “standard visitation” judges. They are not often inclined to deviate much, if at all, from standard visitation. That being said, there are others who will more creatively craft a schedule which is in excess of that contemplated by the statutes that clarify the meaning of standard visitation.

Many factors are at play, but for the purpose of this article we will exclude the chancellors who are not inclined to deviate from the basic fundamentals of standard visitation. This is not to say that many chancery judges cannot be convinced to award joint physical custody in spite of an inclination otherwise. Again, it is absolutely crucial that we are discussing this basic principle within the context of matters where a custody agreement cannot be reached by the parents.

In short, it should always be the first order of business to attempt to forge a joint custody agreement with your child’s other parent. If you are reading this, you have likely already recognized that it is much easier said than done. Only after you have turned over every stone to work together without success should you consider filing a contested custody matter.

When litigating child custody matters, always remember that joint physical custody of your minor children becomes more difficult the further away you live from the other parent. If you do in fact live relatively closely to your child’s other parent and you have a relatively healthy relationship with them and are able to communicate without significant friction, particularly regarding your child’s well-being, your odds of the court awarding joint physical custody increase a great deal.

It is always a partial victory, even when denied equal custody, to be awarded additional time with your children beyond standard visitation. Chancellors have broad discretion in these matters and may craft a visitation schedule in any number of ways, so make sure your attorney has considered making the vast array of arguments that suit your unique set of facts. Do not forget that tax consequences of a minor’s residence are most commonly based upon their primary residence unless agreed to otherwise.

If you have been unable to reach an agreement with your child’s father or mother regarding joint custody or to obtain something in excess of standard visitation, we will utilize all existing case law, statute, as well as subjective factual argument to your advantage.

Matthew Poole, Esq.,

Jackson, Mississippi

601-573-7429

How is a Temporary Hearing (for alimony or other expenses and potentially child custody) in a Divorce Action Different from a Final Hearing on the Merits (Trial)?

Friday, November 18th, 2016

If you and your attorney have pursued a temporary hearing in a divorce action, there are several reasons that you were counseled to go forward with that temporary hearing prior to going to a final trial on the merits of the entire case.  It is important to understand that in a divorce, a temporary hearing is a hearing that is designed to maintain the status quo between the parties prior to their ability to seek or be heard by at a final trial.  

Many people get less than fair result at a temporary hearing because of the perception that they are required to maintain the typical and enduring financial relationship between themselves and their spouse until they are able to be heard at a final hearing.  It is very important to note that there are often times occasions where a party has been placed under a temporary order to pay, for instance, temporary alimony or continue to make car payments, mortgage notes and pay other expenses of their spouse, but when the parties finally get to trial its determined that no sufficient grounds for divorce exist.  As we have already discussed many times in this blog, the typical grounds for divorce (i.e. the most common) adultery, habitual cruelty, inhumane treatment, habitual alcoholism, addiction to an opiates or other similar drugs, and desertion.  Some other grounds for divorce do exist although they are not as commonly invoked such as incurable insanity, impotency, and bigamy.

It is important that any potential client realize that even if they do get a less than favorable result at a temporary hearing, it is likely because they have been the financial bread winner/provider of the relationship since the inception of the marriage.  There are some instances where the person paying the majority of the bills can and will get a favorable result at a temporary divorce hearing.  Those would include situations where a spouse lost a job due to misconduct, is employed far below their earning capacity, or has exhibited bad faith in the failure to seek adequate employment.  Clients need not worry if they are in a position that their result at a temporary hearing was less adequate than what they seek at a final hearing.  Often times, for instance, a mortgage note will be required to be paid by the person who has paid the mortgage note for the majority of or for the duration of the marriage.  However at a final hearing on the merits, if the person seeking to remain in the marital home cannot afford the mortgage note, it is unlikely that the court will continue to require the primary wage-earner to continue to make that payment, unless it is in the form of alimony.

Alimony has been discussed at length in several of our other blogs, but it is very important to know that the American Society of Matrimonial Lawyers have made a general suggestion and therefore proposed policy that at twenty years of marriage, alimony is almost assured to be paid unto the party needing the stability and experiencing the primary financial hardship as a result of the divorce.  We have seen situations where short term marriages do result in an award of alimony; however the very bottom end of the spectrum of people to be awarded alimony would be in the six to eight year marriage range.  Remember that alimony is based primarily on need, although the courts have recently made certain modifications to the Alimony Laws that indicate that a party who is more at fault is equal to or more at fault than their spouse in the cause of divorce will not be entitled to alimony, regardless of need.

These changes have given hope to the people who have been cheated on, abused, or generally had their rights within the marital institution violated although they have been in a short term marriage.  WE agree with this shift, and feel that it represents strong public policy.  Although we think there are many benefits to this change in the common law of the State of Mississippi, many changes are probably forthcoming in terms of clarifying the courts general position on whether or not the award of alimony is appropriate.  We continually strive to be abreast of the most recent changes in Mississippi law so that our clients are given fair treatment by the courts.  

If you need help with a temporary custody, child support, or alimony hearing, or if you have been served with process or a summons, indicating that you must appear in a Chancery Court in the State of Mississippi regarding a divorce action, we are best equipped to give you the proper guidance and counsel in order to help you effectuate your rights.  Please give us a call at (601)573-7429 or send us an e-mail at matthewspoole@gmail.com.  We will be glad to discuss your case with you and determine how best to proceed.

Three Common Mistakes When Dealing with the Guardian Ad Litem Assigned to Your Mississippi Child Custody Case

Friday, November 18th, 2016

First of all, it’s important to understand the basic role of a guardian ad litem in a child custody matter (a.k.a. child custody lawsuit).  If a guardian ad litem has been appointed by a Mississippi Chancellor (often referred to as a Chancery Court Judge) to investigate facts that are relevant to your custody case and make a recommendation to the court as to what they believe is in the best interests of a child, there are three common mistakes that people can and will make that can adversely impact the result and report of the guardian ad litem.   It is important to know that guardian ad litem is a latin term for “guardian at law”.  These guardians are generally appointed by the court in order to perform a fact finding expedition and make a recommendation as to the placement of physical and legal custody of a minor child or children.  It is also crucial to note that the court does not have to follow the findings of the guardian ad litem, although deviations from the general recommendations of the guardian are rare and have to be supported by substantial evidence as presented to the court.

The most common mistakes we see in dealing with our client’s involvement with guardians ad litem are as follows; not sufficiently communicating with the guardian ad litem as to the issues that need to be investigated.  For instance, we have clients that have three or four (or sometimes half-a-dozen) issues that they wish to be investigated by the guardian ad litem, but they only communicate those to us—they expect all communication to go through their lawyer (which is not unreasonable, but impractical at best).  It is important that the client take an active role in speaking with the guardian in order to facilitate the investigation and keep costs down, and it is also important that the client be able to shine a light on all of the issues that they believe are relevant to the best interests of the minor child.  It is important to stay abreast of the guardian ad litem’s progress in their investigation and the various things (i.e. factual issues relevant to custody) that they are considering in making in a recommendation to the court.

It is also important, when possible, to communicate with the guardian ad litem in writing so that there will be a substantial, provable record as to the issues that you wish to be investigated.  It is crucial to know that the more issues and the more complex issues that exist, the guardian’s investigation will have to be more extensive and often this will require that you incur additional cost due to that additional work required in performing the investigation.  

Another very common mistake we see clients make is disparaging their spouse or ex to the guardian ad litem.  This is not well-founded, and we always advise against this ill-advised conduct.  Put simply, it does not cast the disparaging parent in a positive light.  If you have criticisms of your ex’s conduct as it relates to what is best for your child or children, then those issues need to be dealt with in a mature, rational way.

It is important though that the thrust of your argument doesn’t consist of disparaging or demeaning or name calling of your ex-spouse or your ex-girlfriend or ex-boyfriend.  The child’s parent deserves respect regardless of the behaviors that you complain of.  But be objective, and make sure your focus is on what is best for your child or children, not winning the moral high ground.   Courts and domestic attorneys are very familiar in dealing with situations where the motive is not the protection of the child or children, but moral vindication—feeling that you “won”.  The long and short of dealing with your custody matter is essentially taking the objective approach; don’t be angry, don’t  be upset, don’t be overly emotional, just lay the bare groundwork  for the issues that you believe are important that the guardian ad litem consider in making in making their custody recommendation to Chancery Court.  Trust their expertise.  

The next common mistake that we see is failing to have a clear educational plan or path for your minor child or children.  You have to be engaged with your minor child in order to demonstrate to the guardian ad litem that you are the parent that is more involved in facilitating that child’s education and will continue to do so in the future.  It is not necessarily important that you have a college plan for a five year old, however it is important to actively monitor your child’s progress and address issues and short- comings where you are able to make a positive impact and help the child improve in their educational  performance.  It is also crucial to consider having a plan in place for children above seventh grade for their ultimate placement in college and potential course of study.  It is not say that you must have their entire future planned out, but addressing your child’s strengths and weaknesses in the classroom bit-by- bit is important, and will show the guardian ad litem demonstrably that you are the parent with the best ability to effectuate your child’s best interest and goals.  Most importantly, it shows that you care.

If you have a question about this article or would like to share your thoughts, please feel free to contact us at The Law Office of Matthew Poole (601) 573-7429 or matthewspoole@gmail.com.  We are best equipped to assess your situation and give you some practical advice on steps you can take to increase your odds on gaining custody of your child or children.

Separate Maintenance/Alimony Considered by Court of Appeals

Monday, August 29th, 2016

Recently the Rankin County Chancery Court was appealed on a claim by a wife for separate maintenance which is also considered separate alimony.  The claims of the wife include the issue of her being entitled to support outside of child support, which would be considered alimony or temporary separate maintenance.  The Rankin County Chancery Court heard a case in Spotswood v. Spotswood wherein the court was asked to consider a claim that the husband was required to reimburse the wife for insurance premiums that she paid through her employment and that she would also request payments for the mortgage of the marital home that the husband and wife owned jointly.  The Rankin County Chancery Court determined that the husband reimburse the wife for those insurance premiums as well as pay half of mortgage payments for the marital home, although the husband had departed the marital home.  The husband argued that the chancery court made an error in ordering him to make payments on the marital home as well as the insurance payments and essentially granted the wife’s request for separate maintenance or alimony even though the court specifically found that the wife was not entitled to the payment for separate maintenance or alimony.  The Court of Appeals determined, after reviewing the entire record, that if the lower court had found that the award of separate maintenance or alimony is not warranted then the court cannot order one spouse, in this case the husband, to undertake obligations for the benefit of the other spouse, in this case the wife.  Essentially the Court of Appeals was presented with a question that has been litigated in Chancery Courts around the state of Mississippi for decades.  The Court of Appeals resolved a solitary issue here and found that the wife was not entitled to separate alimony or maintenance because the court of Rankin County determined that she was not entitled to the same.  The court, in essence, determined that the husband was not required to make the payment for the mortgage of the home or insurance, as the Rankin County Court had previously adjudicated.  Therefore the Court of Appeals reversed and rendered the decision back to Rankin County Chancery Court in order to have them make a determination of the issues aside from the decision that was made; that the husband could not be required to make payments outside of the scope of alimony even if they were in the guise of insurance or mortgage payments after the determination had already been made that separate alimony or maintenance during the parties’ separation was denied.


If you need assistance with a separate maintenance or alimony issue, contact The Law Office of Matthew Poole, and we are best able to provide you with the assistance and advice in order to bring your case to a fair conclusion.

Matthew Poole (601) 573-7429.

Alternating Physical Custody of a Young Child

Sunday, August 21st, 2016

It has become common in the state of Mississippi, as well as other jurisdictions, that parties to a divorce as well as custody actions have requested that their minor child be as close to equally split in physical custody as the court will permit. On the day of the trial in a recent case that went to the court of appeals, the husband and wife agreed to consent to trial of the divorce on solely irreconcilable differences and permit the chancellor to resolve the issues of physical and legal custody of the minor child of the marriage. At the time of this marital dissolution the parties were jointly parenting a five-year-old little girl. After hearing evidence based upon the testimony of the parties excluding the fault-based grounds that were dropped ,the parties were both awarded approximately an equal split on physical custody until the daughter was able to attend kindergarten. The wife argued that the chancellor mistakenly failed to decide who would have custody of the daughter when she started kindergarten. The wife did not argue that the final order of the court was not final and appealable, but the underlying issue to be resolved was the parallel to this issue. In his ruling, the chancellor failed to specify the exact month and year in the final judgment of the child’s reversion to standard physical custody on the part of the mother. The wife also argued to the court of appeals that the chancellor failed to consider if the joint custody arrangement was practical due to the distance the daughter had to travel. At this point, the father lived in San Antonio, Texas. There was a significant argument as to the impracticality of traveling to San Antonio, Texas from Brandon, Mississippi, even prior to the child starting kindergarten at 5 years old. In this case, the chancellor found that shared custody was in the best interest of the child, despite the fact that she would have to travel significantly to spend time with either parent. Given the distance between San Antonio, Texas and Brandon, Mississippi, the court of appeals determined that the custody arrangement was not in the best interest of the minor child. Thus, the case was reversed and remanded with further instructions to the court to make adequate consideration of the travel time in order to effectuate this difficult provision in terms of travel for alternating custody. The important point to remember is that a significant amount of precedent discourages the use of alternating custody arrangements even prior to a child attending school.

If you need help with a complicated or complex custody arrangement or need advice on how to best proceed in order to parent your child or children, call the Law Office of Matthew Poole, and we will be happy to help in any way that we can within the bounds of existing legal precedent.

Matthew Poole (601) 573-7429.