Posts Tagged ‘custodial rights’

MODIFICATION OF CHILD CUSTODY

Wednesday, February 27th, 2019

As stated in my previous post, I will now delve into one of the more serious topics of that Family Lawyers deal with regularly: Modification of Child Custody.

In order to obtain a custody modification, the non-custodial party, i.e, the party who does not have custody of the child, is required to prove that there has been a substantial change in circumstances affecting the child, that the change adversely affects the child’s welfare, and that a change of custody is in the best interest of the child. There are several factors/considerations a court will weigh in determining what is in the best interest of the child. The following article is a brief examination of the principles set forth above.

Let me clarify a few things, first: there are two (2) separate and distinct aspects to the subject of child custody:

  1. Legal custody,
  2. Primary physical custody.

Legal custody of a child is most often shared between parents, or more accurately stated, “Joint legal custody” is the more common award of the Chancery Court. In short, this indicates that neither parent has more or less “standing” than the other to inquire with the child’s teachers, seek medical assistance for the, child, discipline the child, etc. Shared legal custody basically indicates that mom is still mom and dad is still day, regardless of the other legal factors affecting the life of the minor child and his parents.

At the law office of Matthew S. Poole, we often encourage our clients to agree to shared legal custody, as it is often the best outcome and in the best interests of the child. Of course, there is much more to that facet of the topic concerning legal custody; but for the most, that’s the easy part of this discussion.

Now to the more commonly referred to aspect of custody: Primary Physical custody. W hen people call us at the law office of Matthew S. Poole and complain that they are seeking a change of custody, we understand that they are more than likely referring to primary physical custody. They are unhappy with the current situation and want it changed. Some callers even declare that the current situation is so terrible that it’s an emergency. Much more often than not, no emergency exists.

After the Chancery Court has granted primary custody to one parent over the other, modifying this Court Orders

There are 3 elements to the onset of a Custody modification matter:

First: There must be a material change in the current circumstances of the child since the time of the Order. The change must be “material” or “substantial” in nature. And contrary to popular belief, the fact that the child turned 12 is NOT, taken independently, a material change. Moreover, the material change (or changes) that have occurred should not have been easily anticipated at the time of the initial award of primary custody. The change or changes can be one significant event (perhaps one that even created an emergency situation), or a series of acts, actions, or episodes that, when taken as a whole, create or culminate into this material change.

Second: Those material changes must be deemed as adverse to the child. That is; the change in circumstances must be detrimental to the best interests of the child. Once again, contrary to popular belief, the custodial parent re-marrying is not, in and of itself, automatically bad for the child. Although it is typical human nature to resist and prevent it, change itself is not always bad. N fact, sometimes a change is both bad and good. Left old school and friends is bad…new school has better facilities or is closer to home is good. So, before you call a change in circumstances adverse, take a closer look. A final thought about the adverse nature of the change: remember that this new situation

Third: The decision by the Court that a change of the primary physical custody is the proper remedy to the adverse changes. Therefore, as the non-custodial parent who seeks modification you clear the first two hurdles, and that simply triggers the Court to make a new determination of what custodial/visitation set-up will now best benefit the child.

The best interests of the children should have been determined prior to first award of custody, whether agree to by parties or adjudged by Chancellor. If the parents who are going through a divorce come to an agreement regarding the primary custody of their children, we should certainly hope and even expect that they did so by taking into account all of the specifics surrounding their lives and then coming up with the solution that was best for the children. To do otherwise is unthinkable. Likewise, the reasoning used by the Court in Mississippi, commonly referred to as an Albright analysis, is mandatory before a custodial decision can be made. It is this pre-requisite that makes it often very difficult to convince the Court to modify the primary physical custody of a child…as it should be.

The Albright factors will be examined and analyzed in more detail in my next installment, and I hope that you will log on and read it.

Michael Louvier is a graduate of Mississippi College School of Law (1994). He has been married for 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20).

My Ex and my children have moved to another State! What can I do?

Monday, February 4th, 2019

At the law office of Matthew Poole we have been fielding more and more “out of State” calls. These are contacts to us either by phone or by email about a multi State custody issue. The contact is more and more often initiated by a non-custodial parent who is now struggling to enforce his/her visitation after some serious geography has become involved. Either the Ex has moved to Mississippi, or away from Mississippi – with the children. No matter the reason for the move, or even which party moved, the schedule of “every other weekend, etc…” is now impossible. This new situation begs the obvious question: What can I do about this??

When divorced parents continue to live in the same area, the logistics of the exchange of children, the scheduling of ball games and dance recitals and everything else that goes with the day-to-day joys and “difficulties” of your kids is easily worked out. Although these parents might feel awkward and uncomfortable, it is just easier to get things done for the kids. After all – the “best interests of the children” is always the target, right? Mix a few hundred miles of highway between the houses and this delicate balance goes from a bit unpleasant and compromising to unworkable and unfair. Unfair to whom, you ask? This is unfair to everyone, especially the children. Keep in mind that the travel to and from house to house is endured by the kids, too. And the farther away from the non-custodial parent they move, the more difficult and tedious this issue becomes. A disruption of their plans and favorite activities is never a pleasant subject to broach, also. So keep these delicate subjects in mind when you are attempting to come up with a viable solution.

All of these different problems and headaches and obstacles to a simple issue: I just want to see my kids! Is there a solution? The short answer is YES – Always. When a schedule of visitation is no longer workable, and the parents cannot come to an agreement or a meeting of the minds, the Courts are available for a modification. Remember that your rights as a parent are NOT diminished by the distance between you and your children. In fact, the Constitution of the United States guarantees a parent’s rights, and the protection of those rights. These rights are defined as fundamental rights; that is, the most protected of all rights. See Santosky v. Kramer, 455 U.S. 745 (1982). What this really means to you, the non-custodial parent, is that any decrease in your visitation should be viewed as more than simply “not good for me and my kids”…it is viewed as Unconstitutional!

The Mississippi Chancery Courts are referred to as the “super-guardians” of the children involved in cases that they handle. That is: the Chancellor must put the protection and best interests of the children as a paramount standard. And it is without debate courts hold that maximum involvement of both parents is consistent with the “best interests of the children” policy. With these tenets in mind, it stands to reason that a reduction in visitation because of the re-location of either parent would be inherently contrary to the best interest of the children. Protect your rights – cherish and protect your relationship with your children – and doing may very well mean that you have to go back to Court. Extended holiday periods, travel expenses, or even a true modification of custody are all issues that are on the table after a move of parent/children.

My next article will open yet another can of worms common to the subject of child custody/visitation: the introduction of the “Third adult”. I hope that you will log in to read that one, too.

Michael Louvier is a graduate of Mississippi College School of Law (1994). He has been married for 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20).