Posts Tagged ‘child custody’

Top 3 Questions That Family Lawyers Hear…Daily

Tuesday, March 3rd, 2020

In the course of practicing family law, divorce, and custody for close to 2 decades, I have come to realize that the same questions tend to reappear in most domestic cases…and few of them have simple answers.  It often seems that callers and potential clients believe that domestic fights are solvable like math equations…that a clear answer exists if the numbers are plugged in correctly.  That belief is not accurate and is likely the result of our human desire to have clarity in life–an understandable goal.  As someone facing a custody battle, a divorce, or other difficult domestic case, I would like to help in preparing you for what your lawyer of choice wants you to know.  I have been through a personal custody battle and won, but it was stressful and taxing in more ways than one.  Here and the most common questions we receive, and some of them are not what you might expect.

Q-1:  Would it help to speak to my ex/husband or wife about what terms they would agree to?

A:  Absolutely…the cost of separating and children being involved will depend on how many issues you cannot agree on, the conversation is mandatory to save costs.  MAKE SURE that insurance (health and life insurance on the payor of support) and college costs are a part of the conversation, and these expenses would be in addition to state mandated child support.  This matters are seldom agreeable between people who are already financially squeezed (98% of the population at least).

Q-2:  My spouse and I agree to a divorce but do not agree on who keeps the house/pays the debts/gets the kids/amount of child support (this list can literally go on forever).  Can we not just agree to a divorce and make it simple?

A:  It likely won’t save you any money or time to simply agree to a divorce, although you can resume single life and join the dating world again if that is the path you prefer.  The court could and will grant a no-fault divorce under most circumstances but you still have a long row to hoe if there are financial and custody issues on the line.  It seems like the divorce would simplify those matters, but it will not in most cases.

Q-3:  Why is it fair that he/she is a terrible parent but I have to spend my money to prove that to the court?  Is there a way I can just show the judge my evidence and make this all go away?

A:  Unfortunately no.  This one reminds me of the old saying, “The best and worst thing about the judicial system is that everyone can have their day in court”.  The rules for presenting evidence are very strict and formal, and there would not be so many lawyers if in fact we could casually show the court one side and get a result.  You would not be happy if your ex did this and the shoe was on the other foot.  The bottom line is that the court should and will start with no assumptions about you or your significant other.  They serve one role…neutrally deciding matters brought  before them.

What are my big picture takeaways from these three common questions?   A few things, but most importantly is that people in a state of denial about the complexity of child custody, the financial ramifications, and the difficulty of severing a marriage will continue to languish and may very well stay married for a long time.  It is crucial to get past the fiction of looking for a simple answer. 

Realizing that you have a complex problem is always the first step in addressing it–head on.  And, without any exception, lawyers like myself realize that without putting some pressure on the opposition (the more the merrier), you will have no option but agreeing to whatever they offer.  In the end, trying to agree to fair terms is always best…but not everyone is entirely reasonable, particularly when they are in a highly stressful and emotionally draining situation.

Winning at Work, Losing in Custody? The Sad Truth

Sunday, February 9th, 2020

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

“Is there truth that dad doesn’t have a chance?  Not necessarily, but he usually has a taller hill to climb to obtain custody of a young child than mom does, and that’s not written law, it is likely cultural more than anything else.  The Albright analysis does afford some advantage to mom, particularly because of the continuity of care when dad is at work.”

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

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

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

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

What Kids Need…The Court’s Role

Thursday, January 30th, 2020

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

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

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

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

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

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

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

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

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

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

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

Friday, January 24th, 2020

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

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

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

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

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

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

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

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

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

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

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

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

Reading Your Custody Lawyer’s Mind

Friday, January 17th, 2020

When people call custody lawyers (divorce-related or not), they are usually in for a big surprise.  These cases are most often fueled by animosity toward the other parent.  As we all know, when people are highly emotional, we tend to make mistakes.  The pain of divorce is absolutely terrible for those involved.  What seem to be simple custody cases are also full of hurt and negativity.

I want to make two simple points in this article.  The first applies only to those who were married and divorced or those who are now divorcing.  The second only to those who were never married to the opposing parent.  Here is what we are thinking each and every time.  So, here it goes, my first (and best) article of 2020.  

1. Married and divorced parents go through various emotional phases when they contact divorce lawyers.  Only when they have accepted that no easy solution exists and the emotion is under control can a reasonable and cost effective solution be had.  That’s a tough pill to swallow for most.  Never forget the well-known lawyer quote, “criminal lawyers see bad people at their best, and domestic lawyers see good people at their worst”.  That couldn’t be more true.  Some people wait years to come to an agreement.  And some never go to the courts at all because these are complex and fact-driven matters.  No form exists to get you what you want.  Neither does it for your ex.  Many callers believe that firmly.  Call the chancery court and find out for yourself.

2. If you are expecting a child and unmarried, it is crucial to understand that establishing fair parameters is best accomplished before the child is born…especially paternity.  Men are disadvantaged when step one, paternity, is not agreed upon, so to you guys, be forewarned.  For the women, collecting his tax returns and pay stubs early on is a necessity.  Although there is some debate about whether evidence of pre-birth intentions of the parents has much weight, it is certainly a good place to start.  Don’t forget that expenses will steadily rack up after the pregnancy…a huge source of frustration for both involved…and of the emotion you should be avoiding…negativity.  If you believe that the State of Mississippi will help you in obtaining custody or visitation, you are incorrect.  Child custody battles are not only emotionally taxing, they break the bank for most.  Exceeding 20-25k is not entirely unusual…per side.  Scary thought, right?

Seeing the big picture in your custody battle, married or not, requires a massive degree of restraint.  As I have often said, if everyone were reasonable, I wouldn’t have a job (at least not as a domestic attorney).  Cooler heads should, and usually do prevail.  Being prepared for what lies ahead is front and center.  After all of the dust clears, seeing the mess you are in can and will be cleaned-up, but if you let anger and sadness make your decisions, be prepared for a life-long battle that only hurts the kids.  

Sink or Swim? Childcare Costs Rising

Tuesday, December 10th, 2019

Having a child brings about major financial stress: The cost of raising a child in 2018 was $233,610 – (excluding the cost of college)– for a mid-income family, according to the U.S. Department of Agriculture.  This figure only considers costs prior to your child turning 18…not 21.  (Mississippi recognizes 21 as the age of automatic emancipation unless a minor is married or joins the military full-time).  Expect that figure to rise by a few thousand bucks each year. 

The financial stakes are sufficiently higher for new parents than in previous generations.  This trend is primarily due to a combination of both changing demographics and economic pressures faced by those having children in the modern world.  The new reality is that the vast majority of our population cannot afford to have children at all, as harsh as it may seem.   

In the context of practicing domestic law, my peers and I receive a large number of calls regarding child support obligations.  Often, they consist of a dad calling in an attempt to avoid paying support.  I would like to give a rough sketch of the math behind my opinion that these calls are not only irritating, but nonsensical…at best. 

Average per capita income in the state of Mississippi is around 32k (thousand).  After taxes, average take-home pay is roughly 2k per month.  When our state’s child support laws come down to calculating support, 14% of the take home (plus or minus, depending on a few other factors, but this number is a solid baseline) will be paid to the child’s custodian.  So, in our example, average income dad will owe about $280 per month, or $3,360 per year.  Until the age of 18, he will owe $60,480.  Sounds like a big burden, right?  Not so fast.

Consider this; given that the average cost of raising a child is about FOUR TIMES that amount until age 18, it seems pretty clear that dad is shouldering only a quarter of the burden (and yes, single dads do exist…I happen to be one so if you are also take no offence in my example).  Is state law failing to keep up with the exponentially rising costs of child rearing?  From my perspective, the answer is more than clear.

There are never simple solutions to complex problems, and never will be.  As frustrating as it is, the only cure to the financial struggles faced by single parents starts with making sound choices about whether kids are affordable for them in the first place.  Based on current law, dad gets off pretty easy.  Based upon common sense, 14% of income as child support is terrible public policy.  Even if the baseline support guidelines were raised to 20%, mom would still have close to two-thirds of the burden.  Take a moment to digest how archaic our support laws really are.

So, now we need to look at all of this in the context of custody factors (Albright factors…who gets the child and an award of support).  The third factor in Albright is “The parenting skills and willingness and capacity to provide primary care for the child”.  So to all of you dads out there, be forewarned:  working those long hours will work to your disadvantage if you are seeking custody.  Get ready to pay child support absent extraordinary circumstances.

In sum, my observations are fairly basic in the scheme of things.  As I have stated, non-custodial parents, as much as they may feel cheated, get off easy financially.  Shouldering on average a quarter of the costs of child-rearing should be a relief, so non-custodial parents are lucky in that regard.  Our legislature needs to pass an increase in child support reflective of the actual costs today…not based on decades old data. 

I recommend that anyone reading this write your local representative and voice this concern.  Regardless of the sacrifices we must make, our children should never go without.

Married and Mourning? Consider This First

Monday, November 11th, 2019

Sociologist Linda J. Waite and several contributing authors wrote a peer-reviewed study looking at several assumptions about happiness before and after dissolution of marriages that were deemed to be unhappy by the study participants…both women and men. It is 44 pages long and exhaustively looks at a variety of issues anyone contemplating divorce should consider. It is published by the American Institute of Family Values and can be downloaded from their site as a pdf. file. The article title is “Does Divorce Make People Happy?”. Googling the title and author will be worth your time if you are considering a divorce. It is the best in terms of both randomization and completion that I have seen to date for a variety of reasons.

One narrative that has been often floated in modern society and media is that women tend to be happier than men after divorce and tend to be more likely to remarry. There is some related information published by authors of smaller case studies than the Linda Waite study I reviewed over the weekend. The case in point looks at over 10,000 divorces…by far the most I have seen examined and followed up upon yet. Many of the other surveys utilized much smaller statistical samples, some even less than 800 couples.

I am no statistical genius, but I do know that larger randomized samples are more reliable. Of course, the manner in which the questions are asked also creates some interesting disparity and issues regarding the quality of random samples. For instance, if we pulled a sample from only New York City, the study is flawed and so are the conclusions. That is not a representation of all marriage…the geography imparts social values that are unique by law and culture. Statisticians consider this need for actual randomization crucial to the Z Factor and other measures of the strength of a correlation.

I suppose many would argue that imparting a person’s gender into this conversation is irrelevant, but I disagree. I firmly believe that men and women most often bring very different mindsets into the divorce process. Their results often vary based upon child-rearing and income as well. Although no two cases are exactly alike, the theory that women are happier and that their ex-husbands are more likely to be miserable seems a bit suspect. Both tend to suffer at a nearly equal rate after divorce in my experience.

After looking at Ms. Waite’s extensive work in detail, it is more clear to me that two conclusions can be drawn.

Conclusion 1

Very few people of either sex are extremely happy with their decision to divorce. Most often there is some degree of second-guessing that occurs and the level of doubt truly runs the gamut. Happiness is not easily attained by divorce alone. Constrained finances, increase in cost of living, and, as a truism, two really can live cheaper than one are in play. Also, sharing the kids and the associated expense is not exactly an easy task.

Conclusion 2

There is little difference, if any, related to gender. In other words, the narrative that women move on more easily is not well-substantiated by this enormous study.

I wish I had a clear answer as to why the differences in the data are often so glaring. It seems to me that some of the studies which are not reviewed by peers are questionable. Some even seem to encourage divorce for women. I have yet to find any similar studies finding that men move on more easily. It is truly puzzling. Although I am not sure that the studies indicating women happiness after marriage are what Trump would call “fake news”, there are certainly some yellow (maybe even red) flags to recognize.

In the end, it seems to me that divorce is far too personal and complex to allow people who do not know you intimately give their opinions without scrutiny. If an article/study seems to have an agenda, be cautious. If an attorney appears willing to push you in the direction of divorce, trust your instincts first. It is always easy to seek support and comfort in this difficult time, but do not forget that you are still most likely vulnerable and open to suggestion more than you are in a calm state of mind.

Encouraging or glorifying divorce is almost never the right way forward. Sometimes it is simply a last resort to protect the happiness of both you and your children. The best, most reliable social science has only one agenda…not having an agenda at all.

How Chancery Judges Decide Your Fate

Friday, November 8th, 2019

Reflecting on 16 years of practice in Mississippi Chancery Courts has led me to an understanding of what it takes to win a close case.  Chancery judges are not always an easy read, but there are certainly some common themes that play out when seeking a positive result.  Child custody and divorce are not simple matters and require a great deal of preparation in order to walk out of the courthouse with a victory.  It always amazes me that some believe there is a simple solution to a very complex problem.  Simply put, there are a lot of moving parts and angles to approach.  So, what are the common denominators?  Some may not be exactly what you would expect.

Years ago, I had a particular judge in the northern part of our state that I could not seem to get to see my point of view…ever.  It was a frustrating experience.  Although most litigation is on a razor’s edge (a close call, or it would have been settled), even the calls that seemed to be clear I would get the shorter end of the stick. 

Toward the latter point in litigating a custody fight in front of this frustrating judge, a good friend gave me some advice that I will not ever forget.  Essentially, he said, “Matt, next time you go in front of this judge, act as if you think they are the best judge on the planet…that you have incredible respect for them and their decision-making ability.  It sounds silly, but it works”.  And it did work.  Suddenly I was winning the close calls.  My frustration was working against me the whole time, unbeknownst to me.  Law is more art than science.

It is so true that in many ways litigation is a replication of general, simple life principles.  Chancery judges are very quick to spot dishonesty and a vindictive persona.  It is important to remember that having a client that is hell-bent on destroying their spouse/ex is not an easy endeavor.  I cannot stress enough the importance of attitude.  If your client is calm, collected, even sad, those things resonate with the court.  When they walk in pounding on the table and angry, the lawyer had a much more challenging task.  People often forget that the judge has heard more fussing in a month than they have in their entire life.  Make them want to listen to you by being the cooler head in the room…it works.

As a final thought, it is absolutely imperative to ensure that you bring credible witnesses with you.  I cannot count the times that an opponent brought a convicted felon to testify for them, or even someone with several misdemeanors.  People who have lost custody of their kids do not exactly make great witnesses either.  It is amazing that some attorneys do not properly vet the witnesses they call to the stand.  I would even argue that bringing the wrong person to testify has not a neutral but a negative effect because it reflects poor judgment on the client…and the attorney who called the less than magnetic witness. 

There is an old saying…”Those who can see have the world in common”.  When you get to court, never forget that the judge is more reliant on common sense and intuition than law.  Although to some it may seem unfair, they are going to find a law to justify their decision, one way or another.  Don’t be a victim of your own emotion and you will come out with a fair result every time.  After all, law is more art than science.

Matthew Poole is a Jackson, Mississippi Domestic Attorney and single father.  He has managed over 1,300 family law matters since 2004.

Battered Woman Syndrome…All Too Common

Thursday, October 31st, 2019

Battered woman syndrome (BWS) is a psychological condition and describes a pattern of dysfunctional behavior that develops in victims of domestic violence as a result of serious, extended abuse. BWS is dangerous in part because it can lead to what some psychologists often state is a “learned helplessness” — or psychological paralysis — wherein the victim becomes so very depressed, defeated, and also so passive that she believes that she is not capable of leaving the relationship without her own destruction.  While there is no question that claims of abuse are often manufactured, many women are legitimately abused at the hands of a bigger and stronger male companion, husband or otherwise.  What a shame.  As Voltaire once said, “Power corrupts, and absolute power corrupts absolutely”.

What is a “syndrome”?  Is the term often used incorrectly?  How does it apply to an abused wife?  Let’s take a look at Merriam Webster’s definition and try to shed some light. 

Definition of syndrome

1: a group of signs and symptoms that occur together and characterize a particular abnormality or condition

2: a set of concurrent things (such as emotions or actions) that usually form an identifiable pattern

The more I have dealt with abused women, it reminds me of the similarities between BWS and Stockholm Syndrome.  The human psyche is immersing and deep.  If you have ever read about people who are kidnapped, held against their will, you may be familiar with Stockholm Syndrome.  It is essentially a psychological defense mechanism that allows an abused, subjected person to cope with their present challenge.  Although it does appear sickening to an outsider, this defense mechanism is often the best route for the subjected, unfortunately. 

Stockholm syndrome is a condition which causes hostages to develop a psychological alliance with their captors during captivity.  These alliances result from a bond formed between captor and captives during intimate time together, but they are generally considered irrational in light of the danger or risk endured by the victims. The FBI’s Hostage Barricade Database System and Law Enforcement Bulletin indicate that approximately 8% of kidnapped victims show evidence of Stockholm syndrome.  It is not much different from the signs shown by a battered wife.

This term was first used in the media in 1973 when four hostages were taken during a bank robbery in Stockholm, Sweden. These hostages defended their captors after being released and would not agree to testify in court against the suspects. Stockholm syndrome is quite paradoxical because the sympathetic feelings that captives feel towards their captors are the opposite of the disdain which an onlooker will feel towards the captors.  Again, the similarities with BWS are extraordinary.

One key point that always stands out to me about the psychological makeup of battered women is that the men they are with are always lacking core confidence.  Instead of loving and caring about their wives, they have no other medium than abuse, control, and bringing down the one they married or have an intimate relationship with.  There is simply no workable path in marriage that allows for abuse and control.  Confident men are a breed apart.  They will not resort to anything that harms the one that they married.

My advice to a battered woman is simple.  If in fact you are being abused, remember that victims act like they are abused.  Multiple occurrences of abuse that are swept under the proverbial rug are going to appear less than credible.  Even though the mindset of a true victim is difficult to fully comprehend to an onlooker, you must be aware that perception from the outside is very powerful.  The perception a chancery judge has regarding your credibility is even more so.  If you are being abused, find the strength to confide in those who care about you.  Find the will to get away, because there are always people who care…if you have the desire to look around you.

Battery of women is commonplace.  When you find the will to get far away from an abuser, know that you are better off without them, even if you stay single for the rest of your life.  Understand that a chancery judge will question the merits of your claims, and with some degree of skepticism.  For those who have never been true victims, it is difficult to understand why you stayed.

Mom Has the Advantage with the Young Ones

Monday, October 21st, 2019

Laws in Mississippi have certainly changed since the passage of Albright v. Albright (it is on our home page), but the reality is that mom almost always has a slight advantage when it comes to obtaining primary physical custody of a young child.  We have often looked at the doctrine that was front and center in custody cases prior to the Albright case, which was referred to as the “tender years” policy.  Although it has been deviated from, based upon the preference for Albright analysis, many of the same approaches are still employed when litigating a custody case.  After seeing this play out first hand–hundreds of times, mom usually does carry a slight advantage…unless she screws it up by cheating, drug use, alcohol abuse and, well you get the point.

The “tender age doctrine” has been undergoing a re-evaluation in the past decades, and rightfully so.  Times have changed in many ways, but so much remains the same.  Two states have essentially upended the notion that mom is better with having custody of a young child, and their courts have held that the maternal presumption favoring mothers in custody cases violates state as well as United States Constitutional guarantees of the Fourteenth Amendment. 

Some of the challenges to the tender years (or tender-aged) statutes have also been based in the equal protection clause of the U.S. Constitution.  See Watts v. Watts, 77 Misc.2d 178, 350 N.Y.S.2d 285 (1973). The tender years presumption has also at times been held unconstitutional as a gender-based classification which discriminates between fathers and mothers in child custody cases solely on basis of their sex. Devine v. Devine, 398 So.2d 686 ( Ala. 1981).  However, state statutes generally control unless appealed to a federal court.  Few can afford to do so.

So, where does Mississippi stand?  Is there truth that dad doesn’t have a chance?  Not necessarily, but he usually has a taller hill to climb to obtain custody of a young child than mom does, and that’s not written law, it is likely cultural more than anything else.  The Albright analysis does afford some advantage to mom, particularly because of the continuity of care when dad is at work. 

I fully appreciate that dad often gets punished in this sense for earning and supporting his family.  If mom is also at work and their child is being equally cared for by both parents, this advantage can easily disappear.  However, due to the commonality of mom staying home, receiving some maternity leave, continuity of care usually will favor her.  Some states do require employers to mandate paternity leave, but not Mississippi.  See our other articles wherein we discuss the power and importance of being the primary caregiver, because they are particularly front and center in this conversation.  It truly is the most likely predictor of who wins custody.

In sum, dad has a relatively equal shot at obtaining custody but for the fact that they are likely not an equal caregiver…especially if mom stays home.  If the father of a child truly wants to increase the possibility of obtaining child custody, he needs to find a way to, at the very least, be an equal participant in child-rearing.  Even though it is difficult to afford for many, hiring help is usually his best shot so that mom can return to work.  That way, at least he can argue that mom who does not stay at home is not advantaged by his daily absence.  Make no mistake, I understand full-well how unfair this may seem to all of the dads out there.

If you have a child custody issue and are seeking primary custody, give us a call and we can give you unfiltered advice in obtaining the best result for your kids.  As a single dad, I appreciate your devotion to your children, but more importantly, so do they.