Posts Tagged ‘custody law’

Beware of the Third Adult

Wednesday, February 13th, 2019

Divorce is never easy. This could be the “Captain Obvious” statement of the year. No one ever gets married thinking “the divorce from this person will be painless.” Of course not-people don’t get married with the thought going into it that divorce is inevitable. In fact, there are several clients at the Matthew S. Poole law firm that have declared Pre-Nuptial agreement was not contemplated prior to marriage because the dissolution of the marriage was unthinkable. “No way will we ever be divorced!” Sound familiar? Of course it does. You and I either are those people or we know people who come to mind immediately. And so I will repeat myself: Divorce is never easy.

No matter the reason for the divorce, there is always a recovery period for each party. Often times an ex-husband busies himself with his work, or an ex-wife occupies her time with the kids, perhaps one moves away to be closer to their family, or takes a new job. Personal feelings change and may also stay stagnant as life moves on ever so constantly. Everything is fine…until that fateful day that the ex meets that new someone else. I’ll call them the “third adult”.

As the title of this article suggests, I am not a proponent of the third adult in terms of the impact on children. I am also not a big fan of the forth adult. They are the people who make a family lawyer’s practice thrive. They are the new love, the new “voice of reason”, at least hopefully. The third and forth adults in this equation are the new people that one meets and begin a new and, hopefully, lasting relationship with. And they always have a different agenda than yours of just a few short years ago. That is, the new love interest comes into your life and, more importantly, the lives of your children, with a new and different set of priorities. BEWARE.

Beware does not mean steer-clear forever, but proceeding with caution. Beware from this writer’s point of view does not mean that meeting someone new and falling in love and starting fresh is inherently bad. Beware means please keep in mind the best interests of your children, as the new person in your life may not have adhere to these same priorities. All of a sudden there are yours, mine, ours, his, theirs, etc…. the already disjointed family dynamic takes on a whole new twist. Invariably what may have been an uncomfortable, awkward and time consuming holiday transfer of the children can become an all-out “battle royale” to determine at whose house Santa actually comes. Summer vacations become a contest instead of a relaxing time.

Your new significant other may not appreciate your child support obligation as a legal mandate. They may want to spend that “wasted money” on a new car. Your budget may not allow for all things that everyone wants and needs, and it’s always easier to appease the voice that is closest to your ear. Don’t fall into this trap! Not only is it the beginning of the next round of Contempt filings in Court, but it is not fair to your kids. Be cognizant of your children, their needs, and your legal and moral obligations to them. Also, your ex is the parent of you children and, in most cases, is not your enemy. Your divorce notwithstanding, you have a common goal: to raise your children to be happy (as happy as they can be)…to become well adjusted adults who thrive in their own lives, despite your own shortcomings. Don’t allow the new person in your life to negatively impact your role.

Let me now take a bit of the sting off of the harsh realities presented here. So far, all that I have stated is that the new person in your life is no good, all bad, not welcomed. Please understand that I am not at all suggesting that people who are divorced should not seek to find love and happiness in their lives. Nothing could be further from the truth. Happiness is (or should be) the ultimate goal for all of us. In fact, my children would both readily tell you that my only wish for them in their lives is for them to be happy. (Full disclosure: I am thrilled that my daughter is happy living in Denver, Colorado, despite the fact that it makes me quite unhappy that she lives so far away and I only get to see her twice a year…the fact is that her happiness is not contingent on my happiness.) I am, therefore, urging you parents of broken families to simply consider your children, and their happiness, before you put your own wants and needs, and especially the wants and needs of your new love intetests, at the forefront.

This article is meant to warn you against placing new priorities, because of new people in your life, where they are not proper. The theme of this article is consistent with my other offerings: keep the welfare, best interests and overall protection of your children as your top priorities, no matter in what new situation you find yourself. To do otherwise is, by definition, contrary to the best interests of your children. The law always values and encourages parental involvement and the bonds that come from interpersonal ties, as it should.

I will make clear to include more subtle points of law in my next addition and I hope you will read as I expound on this subject: Child Custody Modification.

Michael Louvier: B.S. University of New Orleans (1988), J.D. Mississippi College School of Law (1994)

Custody/Divorce Mediation Pro’s and Con’s

Friday, January 18th, 2019

Mediating a domestic case can often provide significant benefits to everyone involved–with the right mediator, that is. First, let us briefly discuss what mediation is, and is not. Mediation is defined (by Black’s Law Dictionary) as “a private, informal dispute resolution process in which a neutral third party, the mediator, helps disputing parties to reach an agreement”. In essence, it is simply a facilitator of communication and compromise between those in conflict. A cooler head is so often needed in the emotional turmoil of custody and divorce law.

The sole downside to mediation is that it is not binding on the parties and not enforced as would be a judgment in court. The local sheriff will not help in effectuating a mediator’s judgment, because frankly there is no judgment at all. Mediation is still a highly effective tool, and I will lay bare the reasons that I strongly believe it more often helps than hurts.

  • Court dockets are slow, mediation can resolve dispute quickly. A good mediator knows how to lean on both parties and seek middle ground within weeks, not months and even years. Time is precious and domestic court cases are not sensitive to how much of it you will spend.
  • Mediation is private. Do you want harmful allegations and bare emotion made a part of public record? It does not take much for anyone who looks to see all of the details of a nasty court case, whereas mediation is confidential and private.
  • Mediation can (not always, but most often) save you attorney fees and protracted litigation, multiple court appearances, and the stress that accompanies them.

I would like to state unequivocally that a good mediator be neutral yet decisive and be able to exert pressure on each party to compromise. One of the best domestic mediators is going to be John Grant III, a recently retired Rankin County Chancery Court judge. He now works for the Shows Law Firm in Flowood, Mississippi and embodies all of the qualities an effective mediator requires. I am not being compensated in any way for this opinion, and want to be clear that my thoughts are a result of having practiced in front of him for well over a decade. He is thoughtful, neutral, and will push to resolve domestic disputes confidentially and in fairness to all.

Matthew Poole Speaking at National Business Institute Seminar on Divorce Practice and Procedure

I want to briefly mention that I will be speaking on divorce practice and procedural issues at the National Business Institute Continuing Education Seminar on July 18, 2019 at the Marriott Hotel, downtown Jackson, Mississippi. I am joining 5 other lecturers for the “Family Law A-Z” seminar and look forward to (hopefully) making some sense of the steps in simplifying a path to a clean, stressless divorce which can save your clients, or you, time money. I hope to make this as fun, yet informative as possible. My fellow lecturers and I will surely have some insight that is useful and practical for domestic practitioners.

Matthew Poole is a Jackson, Mississippi domestic attorney and nationally recognized expert in the area of custody and divorce law. He was admitted to the Mississippi Bar in 2004 and is located in northeast Jackson.

ARE DADS STILL THE UNDERDOG IN A CUSTODY BATTLE?

Monday, December 10th, 2018

Let’s face it: Fathers who are “fighting” for custody of their children start out with the figurative “one hand tied behind their back”. But in the past decade or more, great progress has been made to allow for a more level playing field. Let’s briefly explore this subject and, hopefully, shed some positive light on this complicated issue.

I am not hesitant to use the phrase “custody battle”, but many times that is the best description of what this type of court case is, or becomes. Many cases might begin with the parents declaring to each other, their lawyers, their families, and most importantly their children, that they only want what’s best for the children. Some parents even try to adhere to this promise. But all too often the proceedings drag on and frustrations set in and what began as a “cordial” case turns into just what we didn’t want or expect: a Battle.

Fighting it out with your ex often becomes the only way to assert your rights regarding everything, including the custody and visitation of your children; unfortunately, the fight itself almost always makes the dad out to be the bad guy. That is, those dads who refuse to accept the “standard visitation” schedule of every other weekend and an extra day or two sprinkled throughout the month are classified as “combative” or hard-to-deal with. The old-fashioned mindset was: How selfish! Those guys are only thinking of themselves and aren’t putting the kids first, some might say. *A personal note: If someone suggested that I was only allowed to see my kids every other weekend as they grew up, there would be more than a battle to ensue – there may have been a pair of handcuffs involved in that conversation. Thankfully, the mindset in this area is more open to the ideas of “Joint Custody” and “Shared Custody” and other forms of co-parenting scheduling plans that include and facilitate the involvement of BOTH PARENTS, not simply more time with mom and less with dad. Of course, when mindsets change, the laws and court decisions follow suit, and that is encouraging.

There are several factors that each parent must consider when they are “battling” for custodial periods of time with your child. For example: always keep in mind the time constraints of your employment when you fight for the extra week-day. If you agree to, or are awarded by the Court, every Wednesday, but you must work until 6:00pm and you are unable to pick up your child from school, then what have you really gained? Geography and logistics must be considered, as well. Same scenario: Dad is awarded Wednesday and he must return the child to school on Thursday morning; however, he lives more than an hour away! The return trip to school must begin at 5:00 a.m. or earlier. Is this a victory for Dad? Is it a good situation for the child? Finances play a part (of course) as does the support system in place for each separated parent. Can Dad afford to take time off work for the extra time? And after this somewhat lengthy discussion, we have yet to mention the child’s wishes and needs. I believe it is safe to say that no loving parent – regardless of any other factor – would choose a custodial period with the child that interfered with an activity that is important to the child. Dads forced with this decision almost always defer to the wishes of the child. This becomes a sword that cuts both ways: now Mom and her legal team can suggest to the Court that Dad doesn’t want extra time.

The Conclusion, if there is to be one in this brief overview of an extremely complex issue, is that Father’s involved in a Divorce proceeding should take great care in avoiding the pitfalls of a “custody battle”. Consider the cost of “winning”. Who benefits? Who loses? Is there any common ground that should be explored? Has reasonableness been abandoned? And finally, but most importantly, what schedule and situation is best for the child?

Maximum involvement of both parents in the upbringing of the child(ren) should be the desired outcome in any case. In more and more jurisdictions, this is the presumption of what is in the best interests of the child. Father’s more and more are being considered “equal” parents. I see this trend as a good one – for Dads and for their children.

Matthew Poole is a Jackson, Mississippi family attorney specializing in domestic conflict resolution. He was selected as a 2018 top 10 family lawyer by the National Association of Family Attorneys.

How do Mississippi Courts View Joint Physical Custody Arrangements?

Friday, September 1st, 2017

Very commonly our office receives inquiry from parents seeking to obtain joint physical custody of a minor child or children. It is first important to recognize the distinction between legal and physical custody, which topic has been discussed in several of our previous posts, but I digress. The basic logic that is employed by the majority of Chancery Court judges in Mississippi is that it is preferable for a minor to have a primary physical residence, i.e., a soft place to land on a consistent basis without excessive “switching” of residences. Also, consider that most public school districts require proof of primary residence (as in one primary “home”) in order to meet admission criteria.

It is notable that statute in Mississippi mandates, with rare exception, that courts must approve of joint physical custody agreements. Therein is the rub: rarely are former lovers able to form an agreement that both can live with due to the highly emotional nature of child custody litigation whether in a divorce or otherwise.

There is no question that most commonly chancery judges prefer to award primary physical custody to the person deemed to be the better parent (based upon the best interests of the child) and to grant only standard visitation to the other. Standard visitation will be discussed at length in an upcoming entry, but basically consists of every other weekend, 10 days during the Christmas Holidays, alternating major holidays/birthdays, and two 2-week periods of summer visitation.

There are several judges we deal with on a regular visitation that local domestic attorneys refer to as “standard visitation” judges. They are not often inclined to deviate much, if at all, from standard visitation. That being said, there are others who will more creatively craft a schedule which is in excess of that contemplated by the statutes that clarify the meaning of standard visitation.

Many factors are at play, but for the purpose of this article we will exclude the chancellors who are not inclined to deviate from the basic fundamentals of standard visitation. This is not to say that many chancery judges cannot be convinced to award joint physical custody in spite of an inclination otherwise. Again, it is absolutely crucial that we are discussing this basic principle within the context of matters where a custody agreement cannot be reached by the parents.

In short, it should always be the first order of business to attempt to forge a joint custody agreement with your child’s other parent. If you are reading this, you have likely already recognized that it is much easier said than done. Only after you have turned over every stone to work together without success should you consider filing a contested custody matter.

When litigating child custody matters, always remember that joint physical custody of your minor children becomes more difficult the further away you live from the other parent. If you do in fact live relatively closely to your child’s other parent and you have a relatively healthy relationship with them and are able to communicate without significant friction, particularly regarding your child’s well-being, your odds of the court awarding joint physical custody increase a great deal.

It is always a partial victory, even when denied equal custody, to be awarded additional time with your children beyond standard visitation. Chancellors have broad discretion in these matters and may craft a visitation schedule in any number of ways, so make sure your attorney has considered making the vast array of arguments that suit your unique set of facts. Do not forget that tax consequences of a minor’s residence are most commonly based upon their primary residence unless agreed to otherwise.

If you have been unable to reach an agreement with your child’s father or mother regarding joint custody or to obtain something in excess of standard visitation, we will utilize all existing case law, statute, as well as subjective factual argument to your advantage.

Matthew Poole, Esq.,

Jackson, Mississippi

601-573-7429