Posts Tagged ‘Court’

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.

Winning and Losing a Custody Case

Friday, December 29th, 2017

The smallest events can have a large significance on the outcome of a situation. A custody lawsuit is no different, as the testimony of one witness or the smallest behavior by a party can be the deciding factor in who gets custody of a child. Our office has had many cases hinge on a seemingly insignificant occurrence or detail. Our office wants our current and future clients to know the impact that things can have on their custody hearing, and what they can do to influence the outcome.

Custody cases are a naturally volatile process, and when you introduce the emotions and concerns that these cases raise, they become even more so. One part that may be hard on the parties is a temporary visitation and custody order that the court puts in place until a trial on the case is heard. Having contact with the other person for exchange of a minor child for visitation can be a tough thing for people to go through, as many former romantic partners harbor some sort of ill will toward each other. Mississippi Courts have held that interference in a parent’s visitation schedule may amount to a material change in circumstances in extreme cases. Ash v. Ash, 622 So.2d 1264, (Miss. 1993). Though it may be difficult, the best thing is to adhere to the court’s order as closely as possible. Court orders are not suggestions, and keeping in line with that order will only help your case.

Another common thing we see in our office is disparagement of one parent by the other. Mississippi courts have held held that, if extreme enough, parental alienation or disparagement can amount to a material change in circumstances that can be enough to award custody to the non-offending parent. Potter v. Greene, 973 So.2d 291, 293 (Miss. Ct. App. 2008). It is natural to want to make your case to both the Court and your child, however that energy is better spent showing the child why they should live with you, and not just why they shouldn’t live with their other parent. These remarks can be very damaging to the relationship between the child and the other parent, as well as to the child themselves.

There is simply no way around it: custody lawsuits are tough. They combine they already stressful process of a lawsuit with decisions that will impact a family’s life for the foreseeable future. Although both parties to these cases care about the welfare of the child, too often their disdain for each other shines brighter than that concern. Our advice is to be careful of your conduct during a custody lawsuit. This is simple advice that when combined with the highly emotional nature of these cases can become difficult to keep in perspective. The other side is just as invested as you are, and if they believe reporting your behavior to the court will help their case, then they will. If you have questions about what to do outside of the courtroom in your custody case, call the Law Office of Matthew S. Poole, and we will help you in any way we can.

Questions for Your Attorney? Ask Them!

Thursday, December 21st, 2017

A lawsuit can be a confusing process for someone who has never been involved in one. They involve a language totally different than the everyday vocabulary of most people. Attorneys usually expect questions from clients because of the large amounts of questions they themselves had at the outset of their career. Divorce lawsuits are especially stressful, as they delve deep into some of the most well-guarded areas of a person’s life. Knowing what questions to ask your attorney can help very much in cutting that stress down, and to help you make sure your case is in good hands. Here are some examples of questions you should be discussing with your attorney.

Question #1: Have you issued discovery, and what did that discovery request?

Discovery is the part of the lawsuit where attorneys send requests for information to the opposing side to be answered. This often involves interrogatories, which are questions about the case to be answered, and requests for production of documents that may be used as evidence at trial. Discovery is an extremely important part of a lawsuit, as it gives a party the time to possibly object to some requests and to carefully build their case. Asking about the issuance and substance of discovery is a way for you to make sure that the attorney you hired is taking the right steps to build your case.

Question #2: What was included in the pleading?

Pleadings are how you ask the court for the relief you want, and therefore should be done with care and should include every remedy possible. For example, there are twelve grounds for divorce in Mississippi. Asking questions about those grounds can help your attorney know what grounds you may have, which will therefore help in crafting the best pleading possible for your case. It’s your story, so help your attorney tell it.

Question #3: What witnesses should I call to help my case?

The answer to this question from an attorney will most likely be “it depends.” Witnesses may testify to things they have personally seen or heard as well as things told to them. You know better than anyone the people in your life who may be able to help present your case, and your attorney’s past experience may help in discovering other potential witnesses as well. One witness’s testimony can be a huge difference-maker in a domestic case.

Question #4: What documentary evidence should I produce?

One question our office receives from clients almost without exception is “What do you need from me?” This often depends on what the other side asks you to produce. In domestic litigation, common documents requested involve finances and contact between a party and their spouse or child. Your attorney should know what document requests you can object to and which ones you will most likely need to produce to the opposing side. These documents will be the foundation of your case, and you should ask your attorney their plan for building that foundation.

Question #5: What things specific to my case can we ask the court to order?

Every situation in domestic litigation is different, as the experiences, wants and needs of different families intersect in each case. You should be asking your attorney what you could possibly ask the court to order that helps you in your situation. The attorney’s role in this is twofold: the attorney should have a basic idea of what the court will or won’t order while also offering a less emotional presence making the request. When a decision affects your family, you want to make sure it is the right one.

Your attorney’s role in your lawsuit is to help you navigate the rules and procedures of a lawsuit, and asking questions can help you give your attorney all the help they need in building your case, as well as making sure your attorney is properly representing you. Lawyers expect those questions, so ask them! Many lawyers will either know the answer, or admit that they don’t and will find you the answer. In lawsuits, the right questions can be the difference between a good result or a bad one. If you have questions about your domestic case, call the Law Office of Matthew S. Poole. We will be glad to help you in any way possible.

Hindsight is 20/20: Lessons From an Attorney Divorcee’

Monday, July 3rd, 2017

I am currently an attorney in the state of Alabama and have known Matthew Poole since 2003 during our time with the Mississippi Attorney General’s Office. Following is a first hand experience that is significant when confronted with divorce.

The old saying “hindsight is 20/20” is certainly an overused cliché, but could not be more fitting to describe my experience with divorce.  I learned some difficult lessons over the course of what I describe as my “4 year divorce” and my goal is to provide you with a map to avoid the same mistakes I made. You may hear that no divorce is the same, but most divorcees face many of the same pitfalls.  If my open and honest discussion helps just one other dad avoid four years of trials and tribulations, then this blog will be a success. If one child benefits from the message about the importance of co-parenting, this is a pure success.

To paraphrase a wise saying, “you can’t know where you are going until you know where you have been.”  Four years of journaling my divorce provided me the unique opportunity to reflect on where I was emotionally at each step of my divorce.  My journal is a snapshot of my thought process at the very moments I made each mistake in my divorce and would certainly be the “knowing where I was” and having the opportunity to see it in hindsight gives me the clarity I need to “know where I am going.”

Wrong turns in divorce don’t start at the moment the divorce is finalized; not even close.  Vital decisions are made in the pre-divorce period that will carry long-lasting implications and results in newly divorced fathers facing nearly insurmountable odds of being the best dad they can be.  There comes a point in the pre-divorce process that the inevitability of divorce sets in.  For me, this crucial point came after months, or more realistically years, of efforts to keep my family together.  I was physically exhausted, emotionally drained, and filled with anxiety about the unknown.  That is when I made not just the first wrong turn, but THE wrong turn that set me on a path that took me fours years to begin to correct.  I have a name for it. I call it my moment of “white flag surrender.”

Waiving the proverbial white flag was my way of doing what I thought was best for my children.  Remember, if you are in unfamiliar territory and you are exhausted and desperate, you will not make the best decisions for your family.  I agreed to give my ex-wife everything and I mean everything.  My wife got the kids, house, condo, cars, bank accounts, and even family heirlooms.  I walked away with my clothes. I made the mistake of representing myself, and that is something even the finest lawyer should avoid.

My first wrong pre-divorce decision directly resulted in my starting my new life as a single dad unable to support my kids in the way they needed. If you have yet to hear your attorney or judge use the phrase “best interest of the child,” you soon will.  Every decision made during the entire pre-divorce and divorce processes should be made through the lens of what is in the best interest of your child.  That is to say, while contemplating decisions you face, you must ask first “what is in the best interest of the child?” Having two emotionally and financially secure parents is always in the best interest of your children, and by doing what I thought best. I wrecked myself financially and then emotionally, thus, leaving my children with less than 2 reliable parents.  

Navigating the divorce process was stressful, but by putting myself in a position of weakness (i.e. impatience) during my pre-divorce surrender, I fared much worse in the final divorce decree (more on that in later blog entries).  Every hasty decision (there were many!) I made was in the interests of receiving finality instead of with the realization that the court’s order would be in place barring monumental litigation.

Divorcee Life-lesson One:

Pre-divorce is not the time to throw in the towel to all of your ex’s desires and demands, even if you think this might be what is best for the kids.  Remember, two financially strong and emotionally stable parents are what is ultimately in the best interest of the kids. Pre-divorce is tough. The whole process is foreign to you.  You will be scared.  You will be emotionally drained.  You just want the pain and discomfort for everyone to end.  Believe me, I know.  But you will only make matters much worse for your kids, your ex and yourself if you do not position yourself to exit your marriage as financially secure as you can justly make it for yourself. If you resist the urge to surrender (and dang it is a strong urge), you will be a better single father, a better ex-husband, and ultimately, that is all that matter to your children.      

As you set out on your new journey as a single dad, you will need to prepare yourself for the stresses that await you throughout the divorce process. It is pivotal that you fight the urge to waive that white flag before you ever get started. Do not set out on this path alone and don’t be ashamed to ask someone to be a part of your support network. Use every tool you have to remain focused on the best interest of the kids while fighting that urge to throw in the towel. If you will heed this advice you can come out the other side of your divorce much better prepared to take care of your kids while avoiding the four-year journey I took down the wrong path filled with pitfalls disappointment and heartache.

If you are contemplating a divorce, whether it be high-asset based or the primary concern is that of your child’s well-being, The Law Office of Matthew Poole has the experience and expertise to assist you in making one of the most crucial decisions of your life. Don’t attempt going it alone, even if you are an attorney.

Consent Judgments in Child Custody

Monday, May 22nd, 2017

One common misconception about family law in the state of Mississippi is the way that agreements regarding child custody operate. In cases involving child custody, consent judgments may be entered into by parties to best create a custody arrangement for that child.

A consent judgment is a contract of the parties entered upon the records of a court of competent jurisdiction with its sanction and approval. That consent must be present when any order is entered, and the order is considered void if either party withdraws that consent before the judgment is entered. If a party believes that the consent judgment is invalid, they bear the burden of proof in showing that invalidity to the court. Consent judgments allow parents in Mississippi to work out a custody schedule for their child with a lower level of confrontation, stress, and money than in litigation.

We understand that often parties will be tempted to not involve the court system in child custody matters, often to avoid involving the minor child in a lengthy and stressful process. However, as appealing this may seem in the beginning, it is not a good practice to follow. If one party refuses the other party time with the child, there is no court order that a party can seek to have enforced. This is the largest reason that consent judgments should be considered from the outset of a child custody matter. It protects the rights of parents to spend time with their minor children, and it can ease the hardship on the minor child when one parent attempts to have them “pick sides.”

Children are not goods; they cannot be bartered for, and their custody should be taken seriously by all parties involved. Consent judgments in cases involving child custody are often the preferred route for everyone involved, and if done properly they can minimize the stress that these cases have on the parents, the lawyers, and most importantly, the child or children. If you or anyone you know has a question about judgments involving child custody, please contact the Law Office of Matthew S. Poole at 601-573-7429.

 

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.