Posts Tagged ‘circumstance’

Defending a Modification Lawsuit

Wednesday, November 22nd, 2017

Along with stubbing your toe and trips to the dentist, being sued is one of the more unpleasant experiences someone can encounter. Being sued for a modification of child support, visitation or custody is no different. An alleged change in circumstances often pries into two of the most private areas of a person’s life: their home and bank account. When defending a modification lawsuit, it is important to know what the other side must show, and what you can do to combat that evidence.

As mentioned in our previous posts, to be awarded a custody modification, the requesting party must meet a three-part test. There must be a material change in circumstances in the custodial home that occurred since the original decree, that material change must adversely affect the child, and a modification must be in the best interests of the child. The analysis for a modification of support is very similar: one may be awarded if there has been a substantial or material change in the circumstances of the father, the mother, or the child or children.

When a person is sued for modification of child custody, often there is some sort of abusive or neglectful behavior alleged to show the material change. In these cases, a guardian ad litem (GAL) is appointed to represent the child’s interests in the lawsuit, which can include a home study of the child’s living environment. This part of the process literally invites the legal system into your home, which is one of the personal areas of life. If you are the parent defending a custody modification, the best way to interact with a GAL is to show that your home is a suitable environment for your child. That means keeping your home clean, having ample food in the house, and, depending on the season, working heat and air. If there is some question as to your relationship with your child, show the GAL that the claim has either been exaggerated or that you are honestly working to improve that relationship. The GAL’s opinion is a large factor in the outcome.

Another common modification lawsuit is one that seeks to increase or decrease a person’s child support obligation. This arises when there is a belief that the obligor either has more or less income than when the agreement or order was entered. In these cases, one of the things that seems to bother clients the most is the revealing of their financial information. As private as finances are, a necessary evil of a support modification lawsuit is the ability to study this information to determine if there has been a material change in circumstances. Just as that information can be used to support a modification, you can introduce evidence that shows that your obligation should remain the same (or even be lowered). This could be for a number of reasons, such as the minor child now attending private school or having some major need that was unforeseeable at the time the agreement or order was entered.

Being the defendant in a lawsuit is not a fun thing, but it also isn’t the end of the world. Defending a modification lawsuit is similar to defending others: poke holes in the other side’s argument. If a problem in your relationship with your child has been falsely alleged, discredit that story. If there is a problem with that relationship, show an effort to be improving it. If it is alleged that you make more money and can pay more child support, put on proof of why that is not the case. Mississippi courts know that parenting is difficult, and co-parenting even more so. Showing a court that the child’s best interests are served by your custody or that your support obligation is what you deserve to pay is how to successfully defend a modification lawsuit. It sounds simple, but like many legal situations it can be extremely difficult. If you have a question about a modification lawsuit you are facing, call the Law Office of Matthew S. Poole at 601-573-7429.

How Do You Know A Change Is Material?

Thursday, November 16th, 2017

Of the many different legal situations that our clients come to our office with, modifications of child custody are some of the more complicated and misunderstood. Obviously, the custody of a child can only be changed by a court of competent jurisdiction, and the party requesting a modification has certain evidence that it must show to the court to win their case. A change in custody can be a very drastic measure for a child, and courts rightfully take this burden of proof seriously. Mississippians deserve to know what the state’s courts will likely consider a material change and what will not be enough to win a modification suit.

To be awarded a modification of a child’s custody, there must be a material change of circumstances in the custodial home since the original court order, that change must adversely affect the child, and the modification must be in the child’s best interests. This change must have been unforeseeable at the time of the original court order. If a material change is shown, the chancellor then determines whether that change is the one that adversely affects the child, and then analyzes the Albright factors (elsewhere on our website for your viewing) to make a decision on custody. Determining whether a change is “material” can be difficult, as even Black’s Law Dictionary merely defines “material” as “important” and “having influence or effect.”

In some cases, the materiality of the change is rather apparent. In Hall v. Hall, the father filed a petition for modification of child custody alleging, among other things, poor dental care rising to neglect and improper treatment after a dog bite. Hall v. Hall, 134 So.3d, 822, 824 (Miss. Ct. App. 2014). Testimony showed that one child’s teeth were rotten and black despite the father carrying dental insurance on the children, and that the mother failed to properly treat a child for a dog bite and also failed to inform the father about the bite. The chancellor, while acknowledging that accidents happen, considered the mother’s failures regarding the dog bite to be a material change in circumstances that adversely affected the child. The Mississippi Court of Appeals found no error on the chancellor’s part, and upheld the decision.

Other times, a change may be significant, but not material. In Giannaris v. Giannaris, the trial court awarded a modification in custody to the father after he argued that his relocation to California for work, the mother’s refusal to communicate with him, and the mother’s animosity toward the father’s new wife amounted to a material change in circumstance. Giannaris v. Giannaris, 960 So.2d 462 (Miss. Ct. App. 2007). The Mississippi Court of Appeals reversed, reasoning that since the Court had never found the relocation of a custodial parent to constitute a material change, that the relocation of a non-custodial parent did not either. This is just one instance in Mississippi case law where a change that many parents may see as material was determined to not be by the court.

Child custody cases are a fascinating blend of law and drama, as the wants and needs of many parties intersect, and often collide. These cases are also complex, with many pitfalls that may not seem obvious at first glance. Our office often speaks with clients that wish to pursue a modification who are surprised at the amount of evidence they need to show the court in order to win that case. Custody cases are long, expensive and stressful, and Mississippians deserve to know what they are signing up for when they decide to file a lawsuit for a modification. If you believe a material change in your child’s living situation is worthy of pursuing, call the Law Office of Matthew S. Poole. Our office is experienced in these matters, and believes that you deserve to know your realistic chances of being awarded a modification of child custody.