Posts Tagged ‘child custody’

Paying Support = Custody Rights?…Nope

Friday, October 11th, 2019

One of the most common calls we receive is a father who is paying child support, most often through the Mississippi Department of Human Services (D.H.S.), and believes that somehow he has automatic visitation or custody or visitation rights.  He is terribly and fundamentally incorrect. As morally wrong as it may seem, paying child support does not afford the payor to have any custodial rights at all …only an obligation to pay. Make no mistake, the state is merely a collection agency, nothing more.  They cannot, by law, be involved in when and where you get to see your little ones. Seems unfair, right? We will touch on that shortly, so stay with me.

Years ago, the state of Mississippi had a program administered by D.H.S. that promoted access for a paying parent to their child.  That is no longer the case. In fact, D.H.S. is so overwhelmed with deadbeat dads (and occasionally moms) that they have suspended the access/visitation program outright.  They simply lack the funding to continue what are deemed “non-essential” administrative duties required by statute. So what is a dad to do? Unfortunately they have no option other than hiring an attorney to pursue any rights at all.  Again, this seems to be unfair, but it is a reality that has to be faced sooner or later.

As I have said many times, if every person were reasonable, I wouldn’t be a domestic attorney.  Oftentimes, mothers are reluctant to allow their child to go with dad without a court order that requires a certain return time or other specifics that delineate their rights…and they should have that concern.  That belief is well-justified. Fathers generally are reluctant to pay an attorney to garner clear rights to the when, what, and hows that are front and center in any parenting scenario. The predicament that exists is a literal catch 22…both mom and dad have genuine concern and merit to their concerns, as they should.  

So what is the best answer?  It was said to me by a former client that “the only way to prevent a misunderstanding is to have a clear understanding”.  Well said. Couple that thought with the fact that Mississippi requires a court order on anything pertaining to child custody, support, and visitation and the best recipe is clear…the court must issue an order addressing all of these issues, or mom and dad both suffer…so does the child.  Even though dad is the likely recipient of a legal bill, the court’s involvement is paramount, mandatory for the child having a steady and peaceful, even predictable life and schedule. Kids benefit from that predictability in more ways than we, as adults, often realize.  

When you call an attorney and ask for advice, there are a few key ways to simplify your path forward. First, know that most of the callers to family attorneys have little or no communication with the person they created a child with, be it husband, wife, or an ex they never married.  Obviously, that is a shame. The best way to help yourself (and your child) is to make all efforts to keep an open line of communication with you ex…and I know this is easier said than done. If you are able to communicate, drop the hate that may exist, forget the past wrongs that may have been done, and your child will be the first benefactor. After all, their best interests are sacrosanct with yours.  Forgiving and forgetting are powerful tools when your child’s happiness is at stake.  

In the end, what matters is that you thrive for the sake of you and your children.  It is easy to relive old memories of being hurt, rejected, cheated on, or betrayed. However, your child deserves the benefit of a clear understanding, a court order, to thrive and have predictability, peace, and happiness.  Don’t do it for you, do so for them.

Cyber Civics: Children and Online Ethics

Monday, September 30th, 2019

It is estimated that children are online more often than they are in school.  Some studies have found that the average teenager is on the internet for in excess of 10 hours per day.  The interactions that we all have online are a gigantic part of who we are.  Our interactions frame us and we will be judged by them not differently than we are judged by our appearance and profession. 

Safe and civil interaction online is fundamental for children.  They often have little idea about how to navigate the bullying and anonymity that goes with it.  Now, schools have begun experimenting with civics classes focused on childrens’ online interactions.  After looking at this issue, it seems at first glance to be the right course when we are increasingly becoming digital citizens.

The introductory phase in these “cyber civics” classes is generally focused on bullying.  Interestingly, it appears that most studies link cyber-bullying predominantly to making fun of one’s appearance.  While there is always online hatred based upon a child who does not fit into a prototypical gender group or traditional sexual orientation, appearance is by far the most common target for online bullies based upon randomized studies.  There are not simple answers, but the focus on bullying seems a logical place to start for the new curriculums being offered.

Cyber civics is also, in a typical curriculum, secondarily focus on being able to identify “fake news” versus true and factual journalism.  Years ago, it was often said that the first tenet of journalism was objectivity.  The only agenda being that no particular agenda was appropriate is the primary goal.  We have come a long way from that basic principle.  If you read either the conservative or liberal media it is all too clear.  No middle ground seems to exist anymore.  True journalism may not even exist anymore.  That’s a shame.

The core values of our society are generally agreed upon.  We must be kind, respectful, and honest.  Although cultures may vary somewhat as to the way they apply these ideals, it is clear that very few would disagree with this basic premise.  Children are essentially being placed into a broader culture when they have access to the internet.  The odds of a child seeing something inappropriate online are extremely high.  Parents are the only filter for their kids.  The internet, as helpful as it can be used as a teaching tool, is also a double-edged sword.

Although cyber civics as an academic study is a relatively new concept, its focus is not altogether different from social science concepts that are well-established tradition.  Whether we call it cyber civics, social media consciousness, or plain old common decency, the concept remains essentially the same.  Unfortunately, the average person should already be familiar with the importance of decency and honesty but may have eluded that long ago.  When online, some take advantage of avoiding this should-be common ground. 

Anonymity plays a huge role in online interactions, and children are particularly vulnerable.  As such, a new era of digital coach is becoming common.  They now exist in public junior high schools in New Hampshire and Vermont.  Many courses are also offered online as a non-mandatory supplemental option.  Go to Google and search for “cyber civics course” and there are a ton of results.  Whether they are useful is still up for debate.  It seems that much offered is simply a reiteration of common decency.

In sum, it seems that the goal of online decency is a noble one, although somewhat arbitrary when distinguished from simple human interaction and courtesy.  Children are at a great risk of depression and suicide from being harassed, intimidated, and otherwise abused online.  The root cause is that we, as a society, seem to have sheltered and protected online interactions that would run afoul of the laws we have already created regarding defamation and harassment.  Until politicians recognize that anonymous bullies are a significant driver of teen and adolescent suicide and depression, nothing is likely to change. 

It’s time that we identify the real problem…poor public policy.  The legislature could solve much of the problem.  We have to let them, as our elected representatives, know that anonymous online harassment needs to end, once and for all.

Matthew Poole is a Jackson, Mississippi domestic attorney.  He was admitted to the state bar and the federal district courts in 2004.

Do Chancery Judges Have a Sixth Sense?

Thursday, September 19th, 2019

Before getting into the nitty-gritty details of my experiences with Mississippi Chancellors, I must say that we have a unique system to determine divorce and custody matters in our state.  Only 5 states in the U.S. have chancery court systems. They are based on English common-law and principles of equity (fairness). Without a doubt, the big difference between chancery and other courts is that a chancellor is not only the final interpreter of law on point, but also the ultimate fact-finder.  This requires playing somewhat of a “dual role” in making determinations that affect not only a divorcing couple, but their children and extended families. So, after 1,300+ domestic cases, do I believe that chancellors have a heightened ability to sense what is not directly in front of them? Yes, and it is largely because they have significant experience in detecting the motivations of those who appear in their courtrooms.  

When in court, attorneys are commonly making points based upon evidence that can be seen and heard.  Most of the proof that we present on a daily basis consists of not only the testimony of witnesses, but video, photographs, documents, and audio recording.  While these are what I would call “empirical” evidence, they are not the only consideration for a fact finder. For instance, let us take a brief look at criminal jury trials.  They are a contrast to chancery proceedings in many ways. The judge has a singular role: interpreter of law. The jury has one role as well: find the facts. That fact-finding is not exactly an exact science.  It is highly nuanced…subjective as all get-out. Reasonable minds can disagree and often do. After hearing testimony and seeing all of the evidence, we can and will come to different, often ant-opposite of conclusions.  That is simple human nature.

Chancellors are the equivalent of both the judge and jury.  Not only do they interpret law, they are the sole fact-finder in divorce and custody actions.  They have to rely on their God-given instincts in close cases. Having seen the inner-workings of the chancery system in Mississippi, I can without question say that chancery judges tend to have a heightened intuition.  It is necessary when determining who is truthful and who is not. That gut instinct decides the outcome of so many close cases. Most of them are close, or they tend to settle prior to trial. Think of all the times you likely disagreed with a jury.  Without pointing to any specific cases, you can surely name a few of your own.

Most divorces and child custody matters are close calls.  Many lack any concrete proof at all. There are almost never any smoking guns or red hands to be caught.  The proof is almost always what I would call luke-warm…even circumstantial. The best approach in any chancery court is to build credibility by telling the truth.  Consistency goes a long way, as it should. Chancellors are pretty good human lie detectors.  

My advice to anyone going through a difficult custody case, divorce, or visitation issue is to be cool-headed and calm.  Be consistent and voice your concern for your children. Do not worry about shaming your spouse, your ex. It will not build credibility with the judge.  Your testimony will be weaker than it could have been when the focus is taken off of your kids. It is always better not to voice the raw emotion that a breakup causes.  The children are what matters now, and the judge could care less how much you may dislike your ex. They hear all too much of it on a daily basis. It gets tiresome, and quickly.

If you end up in court over a disagreement about your kids, your finances, do yourself a favor and relax.  Chancery judges love nothing more than a reasonable, calm litigant who is able to have a laser focus on what matters and ignore what does not.  Kids need structure and stability to thrive. They need a routine that is predictable and not jolted by emotion. If you are able to tap into this thinking, you just increased your odds of obtaining a positive outcome in a tough life moment.

Matthew Poole is a Single Father and Jackson Mississippi Family Lawyer, Recipient of the National Family Lawyer Association Top 10 Award in 2015 and 2018 and Finalist of the Steen Reynolds and Dalehite Trial Competition.  He was admitted to the Mississippi Bar in 2004.

Modification Mayhem; How to Steer Clear

Thursday, September 5th, 2019

Child custody modification cases are always challenging for a variety of reasons.  First, it is important to recognize that Chancellors are inclined not to “rock the boat” by making drastic decisions about child placement without very good reasons.  They, as they should, need a parent seeking modification to present overwhelming reasons for a sudden change that affects every aspect of a child’s life.  Haphazard, swift decisions regarding children are frowned upon and avoided at all costs. 

I want to focus on a common scenario which occurs and attempt to illustrate the divergent paths it presents.  Quite often, a child turns 12 and is able to voice a preference to the court about where they want to live.  Although they do not get to “choose” (a common misconception), their voice plays a critical role in triggering and potentially effectuating a child-custody claim.  Although the maturity level of the child is not a technical factor in the weight of their preference, it will always play a critical role in the outcome of the modification claim.

I want to share with you a custody horror story, at least from the perspective of a former client.  Often the best lessons are had by failure, not success.  Many years ago, I was hired to prosecute a child custody claim in Rankin County, Mississippi on behalf of a mom whose son had recently turned 12.  We all met at my office and the child was quite clear about the strength of his desire to live with his mom.  I did not question his sincerity for a moment. 

Fast forward several months and we finally have our day in court at a final hearing (trial).  I called the young man to the stand and he performed as I expected.  When my opposing counsel had his shot at making his case, the child fell apart.  It went something like this:  “Young man, why is it that you want to live with your mom all of the sudden?”.  A fair question, right?  The boy then said, more or less, “My dad makes me go to bed at 10 o’clock and eat grilled chicken and vegetables.  I hate vegetables.  When I am with my mom she lets me do pretty much whatever I want.  I can have as much pizza as I want and I can play video games while she’s busy doing other stuff.  My dad is just too strict.”  Whew.  I heard the sound of my case deflate right in front of me.  The odds of winning were nil.  My client was upset and so was I, but he was just a kid after all.

I have seen first-hand how children will attempt to please both parents.  I have had clients hire me on modifications of custody only to realize later that their child was telling their ex that they wanted to stay with them.  Kids have a natural defense mechanism to make both parents happy.  They will tell both that they want to be with them.  It borders on dishonesty, but for the love of God, they are only kids and do not understand adult problems.  This is the way that they cope.  It is frustrating and can cost a client several wasted dollars, but nonetheless I understand the plight of the children torn between two parents that they dearly love.  We must, as the adults in the room, understand how to avoid this mayhem in the first place.  Our children deserve it. 

My advice is simple.  The mature children are going to be far more likely to stay with the parent they prefer.  I doubt many of them are 12.  Once a child has consistently voiced a mature, rational desire to stay with you, consider speaking to a lawyer about a change of custody.  Chancellors are privy to the fact that children are not always able to decide what is best for them.  You can avoid wasting thousands on a failed modification claim by allowing your child to come to their own conclusion. Be patient and kind.  Remember that they are feeling pressure from every direction.  And in the end, respect them and their innocence.  One day they will face adult problems.  It is your job, as a parent, to make it later than sooner.

Matthew Poole is a single father and Jackson, Mississippi Custody and Divorce Attorney with 16 years of experience.  He has managed over 1,300 domestic cases.

Avoiding Disaster: Divorce and Mortgages

Saturday, August 24th, 2019

Are you preparing for a divorce and have a mortgage on a home or other property?  Valuing these assets is fundamental in order to ensure that you receive a fair shake in severing your marriage.  What common issues need to be clear moving forward on a path to becoming single again? There are several, but the mortgage holder is almost always the key to knowing who should stay in the home and who goes.  Unless you want to be roommates with your ex for the foreseeable future, follow this advice.  

A retired Chancellor from Rankin County, Honorable John Grant, used to say repeatedly that “Two can live cheaper than one”. The reason that credit bureaus will ding your score for a divorce is quite clear:  unless your income increases substantially, a divorce will always negatively impact your overall financial health. When two people own a home in a community property state such as Mississippi, they have essentially formed a joint business venture.  When the home is mortgaged in both parties’ names, both incomes are considered by the bank in determining whether or not to grant the loan application and provide credit. They are not particularly keen on allowing an otherwise responsible obligor (or “customer” in bankspeak) off of the hook.  Why should they be? They have a responsibility to their shareholders to ensure investment in mortgage assets are repaid at as high a rate as possible.

Very many divorced people ask me after the fact why it is that they cannot repurchase another home.  Unfortunately they have almost always suffered from poor lawyering and improper preplanning for severing marital ties.  The gist of their now major disaster is that their attorney did not make adequate provision in the dissolution agreement for the marital home.  They simply stated that one party, we will just say the wife for example, keeps use and possession of the home. Frequently a wife with children will stay in the home if she can afford it.  So the story usually goes as follows…Husband is on the mortgage. Husband assumes that he is off the hook for liability with the bank. Husband applies for a loan, only to be rejected due to a poor-debt to income ratio.  This all could have been very easily avoided.

A simple provision that stated, for instance, “Wife agrees to obtain separate financing for the marital home within 60 days or to list the home for sale at or below current appraisal value” would have done the trick.  Sale price and who decides upon that price can also, and should be laid out clearly prior to divorce. It still amazes me that some lesser experienced lawyers get their clients stuck in a hellish quagmire such as this.  It can and should be avoided with some degree of foresight. Fixing this issue can cost far more than doing it correctly the first time around. I have seen people that have unfortunately spent fifty of more hours in attorney time to clean up this type of mess.  

In the end, be sure that your attorney has discussed with you the best path to rectify any outstanding financial obligations, especially your mortgage.  Ensure that no assumptions are made moving forward. Ask your lawyer every question related to protecting your future and that of your kids. And after the emotional haze of divorce clears, never forget that two really can live cheaper than one.


Matthew Poole is a Jackson, Ms custody and divorce lawyer and a 2015 and 2018 N.F.L.A. top ten domestic lawyer, 2019 Birdeye top family attorney, and 2003 finalist of the Steen Reynolds trial competition at the University of Mississippi School of Law.  He was a Second-Century Scholar at Millsaps College in 2001.

Advice to Women: How to Spot a Bad Dad

Thursday, August 22nd, 2019

One of the most powerful drivers of domestic litigation, mom filing suit against dad or vice-versa, is the desire by both parents to receive or avoid child support obligations.  The typical, let’s say father, will usually bend over backwards to avoid paying child-support, because it is a 21 year obligation not easily dispatched. Sometimes, and more often than not, these dads look for creative ways to thwart that obligation by seeking joint custody of their child.  Do they really want to spend close to half of the time with the little one? Doubtful, at best. Their answer? “I want joint custody”. For a seasoned lawyer, we all see through this veil of nonsense.  

It is clear that Mississippi law prefers parents to agree to custodial arrangements, in large part to take a hefty load off of the backs of our strained judicial system.  Although the consequence is not intentional, many domestic lawyers get paid large sums to fight for “joint” custody for a parent who simply wants to avoid child support obligations.  So, let’s explore the impact of one child on an average man’s balance sheet, monthly.  

Per capita income in Mississippi for a single man is about $33,000.  After mandatory deductions, that number shrinks to about approximately $26,600.  That is only a little over $2,200. per month. Now, if said average income man has a child and owes support, he will owe 14% of that $2,200 in support, or about $320 per month.  Ouch to him. This figure does not include extracurricular activities, day-care, or medical and dental costs. Kids are not, and never have been cheap. If you thought that having a dog was expensive, you were wrong.  

Why are so many men pushing the narrative of “joint” custody?  Are they really concerned about being heavily involved in their childrens’ lives?  Most often they are not, but there are the rare few great men who are not as concerned about paying child support as they are about being involved in child-rearing.  These men are uncommon, but they do exist. My experience allows me to spot the fake “great dads” rather quickly. It is always about the money for them, not concern for their children and their rearing.  

Standard visitation is almost always going to be par for the course.  Judges are not usually willing, absent unusual circumstances, to rule for joint physical custody of children, and the reason is patently clear.  Chancery court judges want finality, they do not want litigants coming back every time someone moves or changes school district. Who can blame them?  They seek an efficient system no more or less than anyone else would. Joint physical child custody is about as difficult to manage as two people sharing a car.  It doesn’t work, at least not well.  

My advice is simple.  If you are the more engaged, loving, capable parent, fight for your children.  Be there to raise them in your light. Do not be intimidated by threats of “joint custody”, it is often just a scheme to avoid child support.  Trust your God-given instincts. If he truly does care enough, joint physical custody is always a consideration. If he is looking to save a few bucks, fight at every corner for your little ones.  (Sorry guys, but this is the way it plays out 90+ percent of the time, and I am one of you). In the end, good will always defeat bad intention, but you have to muster the will to fight for what is right.


Matthew Poole is a 2015 and 2018 N.F.L.A. Mississippi top ten domestic attorney, 2019 Birdeye Top Mississippi Famliy Lawyer, and 2004 Steen Reynolds Trial Competition Finalist.  He lives in Northeast Jackson with his 9 year old son, Lucas.

Second and Third Marriages, an Uphill Battle

Friday, August 16th, 2019

It is relatively well-known that all time divorce rates (overall, not for a specific time period) generally hover around 40-45%.  National statistics indicate that 1st marriages have an all-time divorce rate of 42%, (and 49% in 2018). Second marriages have an overall divorce rate of 60%, and 3rd marriages’ rate of marital dissolution is a staggering 73% since the time this country began taking statistics in the mid 1920’s, and they are slowly creeping upward.  Why is it that subsequent marriages are so difficult, even more than the first? There are never simple answers, but there are several observations that may explain this trend.  

Behind every statistic is an underlying cause (or “root” cause as the older generation used to say), and usually the cause is multifaceted.  Not one single factor can be said to contribute to the phenomenon that first marriages are (believe it or not for those of you seeking divorce) more likely to succeed than a marriage after a divorce or multiple divorces.  The message I would like to convey to those of you seeking a divorce is best said by remembering the old saying “the grass is always greener on the other side”. 

My observation is simple….those who abruptly sever marital bonds are essentially more likely to fail for their inability to stand firm with the partner they chose in youth, therefore complicating their lives.  The complexity of any social interaction is a strong predictor of the likelihood of its failure. Simplicity is not always a bad thing, a concept that is often lost in an era when we seek the newest, most complex, difficult to engineer piece of smart device in our cars, homes, and lives.  We live in a society that prefers to throw the broken away and replace it rather than considering whether a fix is possible.

When I first began my legal career as an attorney in 2004, the head of my division told me on the first day, “Matthew, we follow the kiss method here, which means we keep it simple stupid”. Those words are not only important in litigation, they are tantamount to a lynchpin in marriage.  If you realize that life complexity will likely cause future dramatics, you have already made the first step to saving a broken marriage or making a good decision to re-marry. When people marry and have pre-existing legal obligations from a prior marriage such as child support, alimony, and visitation or custody issues in-tow, they have complicated their lives significantly with a remarriage.  Wiping the slate clean is seldom a possibility because our lives are complex, and so are our relationships.  

In sum, it appears to me that the more social issues one has to deal with, the more likelihood of divorce.  A system that has more moving parts has more parts that may break. Marriage is no different. I want to make very clear that there is always hope, but to any person considering a divorce, please know that it does not get easier the second time around.  If you do divorce and look to be remarried, consider all of the complexities you will both bring to your second or third marriage, lay them all out on the proverbial table with honesty, and have a simple, clear gameplan to deal with the challenges ahead.  It is very much an uphill battle, but it can be won. However, in the end, maybe simple really is better.

Matthew Poole is a Jackson, Mississippi Domestic Attorney and single father.  He was admitted to the Mississippi Bar in 2004.

The Zen of Marriage and Divorce?

Wednesday, August 14th, 2019

Years ago when I was in high school, the alternative rock band Bush had a song called “everything zen” that was popular amongst teens and twenty-somethings in an era dominated by the likes of Pearl Jam and Soundgarden.  Its seems like a million eons back to me at this point.  The song was my first introduction to the concept of zen, and I had absolutely no clue what in the world “zen” was.  After studying the zen philosophy and practicing divorce law for close to 2 decades, Bush had it right, everything is zen…even marriage and divorce.

If you want a quick description of my interpretation of zen, it is well summed with an acceptance of a concept embodied in a popular zen quote, which reads “the delusion of humanity is to believe that I am in here and you are out there”.  What is good for your spouse is most likely good for you and your children.  Your well being and their well being are actually, believe it or not, the same thing.  Marriages often fail because of the inability of one or both parties to recognize that their happiness is to the benefit of their spouse.  Many conceptual similarities are found in the reading of the Holy Bible.

This will be a short blog simply because it is confusing.  It requires some degree of taking everything you thought you knew and forgetting it all.  We are all selfish to some extent or another.  Letting go of that is the only thing that will make your marriage last. 

My advice to you if you are considering a divorce is to be the one who sees your equality in marriage.  If you let your guard down, take a leap of faith, remember the words spoken in your vows, you have done all you can and have earned a divorce.  You cannot control others, so start with YOU first.  In the words of Bush, everything is truly, well, zen.  If it does not work and divorce is inevitable, call or email us anytime.

Matthew Poole is a Jackson, Mississippi Domestic Lawyer and a Single Father

Divorce Quick Guide…..the “Cliff Notes”

Monday, July 22nd, 2019

Here is a quick guide as to divorce grounds in Mississippi……this list includes all recognized grounds and basic judicial interpretation of those reasons for legal rights to divorcing. Sometimes several are applicable to divorcing spouses.

FAULT-BASED GROUNDS FOR DIVORCE (Miss. Code Ann. 93-5-1)

Natural Impotency……..The Mississippi Supreme Court has held that divorce on this ground was not permitted where a woman’s physical condition made intercourse painful and where she pursued treatment. Sarphie v. Sarphie, 177 So. 358 (Miss. 1937

Adultery………Adultery is “voluntary sexual intercourse on the part of either spouse with a person other than his or her own spouse.” Owen v. Gerity, 422 So. 2d 284 (Miss. 1982). Adultery may be shown by circumstantial proof or a generally adulterous nature, combined with evidence of a reasonable opportunity to satisfy the infatuation of proclivity. McAdory v. McAdory, 608 So.2d 695 (Miss.1992). Direct evidence is not required. No need to have concrete proof!

Being sentenced to a penitentiary………..The statute was, several years ago, amended to read “sentenced to any penitentiary.”

Desertion….willful, continued, obstinate desertion for the marital space or domicile for a period of one year.

Constructive Desertion (as an option where physical desertion is not available)………Mississippi recognizes constructive desertion (where on spouse engages in conduct that forces the other to leave the marital home or renders the continuation of the marriage “unendurable”. (A subjective standard).

Refusal to have sexual relations (as a form of constructive desertion)…… This must be long-standing and without good cause, such as physical pain from intercourse.

Refusal to reconcile (as a form of constructive desertion and/or desertion).

Desertion may occur when on spouse leaves the marital home, then makes a good faith effort at reconciliation and the other spouse rejects the offer. Day v. Day. 501So.2d 353 (Miss. 1987).

Habitual drunkenness……..This one needs little explanation.

Habitual use of opium or “other like drug”….note that the Court of Appeals has broadened the definition of other “like” drugs. Marijuana is now considered a “like” drug by our courts due to the effects of its use.

Habitual cruel and inhuman treatment………The courts state that the cruelty required is not such as merely to render the marriage undesirable or unpleasant. Where both parties file on this ground, the chancellor must determine who is more at fault and grant the divorce to the other party. Hyer v. Hyer, 636 So.2d 381 (Miss. 1994).

Incurable Insanity at the time of the marriage, if the complainant was without knowledge of the insanity.

Marriage to some other person at the time of the purported marriage.

Pregnancy of the wife by another at the time of the marriage, without the husband’s knowledge.

Relation within the prohibited degrees of kindred, (a.k.a. incest).

Defenses to Divorce

Recrimination………Recrimination is the doctrine that if both spouses are guilty of fault, neither is entitled to divorce. Until 1964, this doctrine required that a Chancellor refuse to grant a divorce where both spouses were at fault. Miss. Code Ann 93-5-3 now provides that it is not mandatory that a Chancellor deny a divorce, even though the evidence may establish recrimination.

Insanity……..Insanity may be a defense to divorce based upon adultery, desertion, or cruelty.

Condonation……….Condonation is forgiveness of the marital fault by the wronged spouse, with the understanding that the conduct is not to recur. It is conditional, based upon the “good behavior” of the spouse at fault. If the conduct recurs, the defense is removed. Condonation may result from express forgiveness, or be implied from a resumption of the marital relationship after knowledge of the conduct.

Mere resumption of residence without resumption of sexual relations does not necessarily indicate condonation. Cherry v. Cherry, 593 So.2d 13 (Miss.1991).

Connivance………Connivance is one spouse’s implicit consent to the wrongful conduct of the other. The defense of connivance arises from the fault-based notion of a “wronged” spouse; if the innocent spouse did not object to the conduct, he or she has not been wronged. It typically applies to adultery claims.

Collusion……..Collusion occurs when the parties agree to frustrate the divorce procedure in some way, by creating grounds, or by agreeing not to defend a case, MS Code Ann 93-5-7 requires that for every divorce except those on the ground of irreconcilable differences, the parties must attach an affidavit stating that the action is not the basis of collusion.

Provocation……..This is a bar to divorce where the complainant provoked the conduct to the wrongdoing spouse most likely be used in response to a divorce action based upon desertion. This act allows a stay of proceeding for persons in the military and must be granted unless it can be shown that the applicant’s rights will not be materially affected by the proceeding.

Matthew Poole is a Jackson, MS family lawyer specializing in custody and custody modification matters. He was admitted to the Mississippi Bar in 2004.

Do This, Not That…Common Custody Mistakes

Thursday, July 18th, 2019

“Small minds discuss people. Average minds discuss events. Great minds discuss ideas”.

Eleanor Roosevelt

We receive about 4,500 phone calls a year, plus or minus. In 16 years of practice, my assistants and I have received prospective client intakes from more people than the population of a medium-sized city. Almost all of the calls have a common denominator; an inability to communicate with the “other” parent. It can be easily avoided…here is a basic blueprint. I hope it is helpful.

Every life struggle needs a hero. Why should it not be you? As a single parent, I have seen these challenges first hand. As a domestic lawyer, I have fought these battles for my clients just the same. So here are my thoughts and impressions about how to proceed when child custody is front and center in your life…and your kids’ lives even more importantly. So here is the entree’; what to do and what to avoid. If you follow this advice, parenting still won’t be easy, but life will be better for your children.

DO- Keep open communication with the other parent about childrens’ activities and progress.

DO NOT- Cut off your kids ability to talk to dad/mom or keep them in the dark. Children build self-esteem through belief that they have great parents…two of them.

DO- Remember that children are innocent.

DO NOT- Believe they understand adult problems, emotions, or opinions.

DO- Remember that your child is one-half of you, one-half of another.

DO NOT- Think that your child isn’t hurting because their other parent is not around…even if it is by their own bad choice.

DO- Realize that kids need love, even if the person loving them has serious flaws.

DO NOT- Require perfection from your ex…we all have flaws, but loving of our children is what matters most, your relationship may have been a simple moment in time, after all.

DO- Make sure to tell your kids that you love them, so does dad…or mom…and grandma.

DO NOT- Tell them that they were abandoned, that you are the hero, that you saved them from misery and suffering.

DO- Ask your children what they need from your ex, be it a new toy, a way to communicate, or a simple showing of affection.

DO NOT- Tell your children how you feel about the person who may have broken your heart, damaged your soul.

DO- Make sure your children enjoy being a child…it is a precious thing we all remember dearly.

DO NOT- Let them feel the real life burdens all adults feel every day.

Last thought…if all else fails, always take pride that you did your best and never gave up on the children brought into an imperfect, but beautiful world. Any judge will see you for your strengths first. That is the way it should be. In a custody battle, nice guys and gals finish first.

Matthew Poole is a Jackson, MS family lawyer specializing in custody and custody modification matters. He was admitted to the Mississippi Bar in 2004.