Posts Tagged ‘custody modification’

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).

Child Custody Challenges Equal Danger + Opportunity

Tuesday, January 8th, 2019

Happy 2019 to everyone reading this post. I am truly amazed that thousands of people read them every month, in large part thanks to Google and its reach. That is truly humbling to know and I thank you all for spending the time– it truly makes writing rewarding. Now, on to one of our very favorite topics…..legal realities.

Anyone who is familiar with our blog knows that we enjoy debunking myths. I am certain that most people that contact us in a disputed divorce that is also coupled with disagreement about child custody, be it joint or primary custody, visitation with their kids, and so forth, are looking for easy answers. Some even think that we sneaky lawyers have a form you can fill out and submit it to the court to obtain custody. Some feel we are holding back for profit. I assure you, that is far from legal reality.

H.L. Mencken (for those of you not familiar with the now deceased journalist, look him up on Wiki…he was controversial and improper at times, but often right) once noted that “For every complex problem, there is a solution that is simple, neat, and wrong”. Americans, especially litigants, love simple solutions and immediate gratification. We are all made that way to some extent or another, myself included.

If I had to guess, over 90 percent of people seeking child custody advice are looking for a quick, cheap solution. Dealing with the rights and protection of children and what is best for them is never that simple. Children obviously bring a new dynamic to parent lives and therein lies the rub. All hope is not lost though; you may, and likely do have opportunity to better your children through the rough sea of custody litigation.

Although there has been significant debate about the interpretation of the Chinese word for “crisis”, often interpreted as “danger and opportunity”, the concept holds basically true in the narrower context of child custody litigation. So, you are probably asking yourself “what is the best advice for the parent fighting for custody, Matthew?”

My tip is a simple one: spend your energy not looking for a simple solution, look for the best solution for you and your kids. And remember, it is a whole lot easier, cheaper, and less stressful to get professional legal advice and do it the right way the first time. Going back and trying to undo what has been done is always the tougher path.

Think of it like this: It is far easier to build a home on a piece of cleared land than to go demolish an old house, clean all the debris and then start from scratch. Trust your instincts about the legal advice you get. And if you sense a lawyer is simply trying to get paid and push you into a prolonged battle, do not walk away, run. The opportunity to get it right may only happen once.

Matthew Poole is a 2018 Top 10 rated Mississippi domestic attorney by the National Association of Family Lawyers, 2004 Finalist of the Copeland Cook Taylor and Bush Trial Competition, and 2001 Millsaps Second Century Scholar.

The Best Child Custody Lawyers Get This One Thing: Attitude is Everything

Tuesday, September 18th, 2018

Never forget that taking a child custody lawsuit to trial is no easy task. It is not outside of the realm of possibility that it could take a year or more, a large amount of money, not to mention many sleepless nights. Not only can close cases be lost with the slightest missteps, relatively strong cases on facts, witness testimony, and documentation can be thrown away as well.

Sometimes what may seem to be a relatively simple win can become stretched into a very prolonged battle. So what gives? Is there a secret to improving your outcome when lifelong implications hang in the balance? Probably not, but unequivocally clients must understand that they only have a brief few minutes for judge to form an initial impression of them, and more importantly, their parenting.

Preparing a client for trial is never an easy task, but without question it can be relatively straightforward when a client is ready to tamp down their level of emotion. It is normal to be upset when your own flesh and blood are torn between you and the “other” parent. I will state that most Chancery Court judges can read you more readily than you realize. They are experts in lie-detection, human intention, and a myriad of other factors that will dictate the outcome of your case. Being honest and forthcoming, including admitting your flaws within reason can be very effective. The judge already knows you aren’t perfect.

We have discussed this general topic from various angles umpteen times through the years, and the repetition is intentional. Let me say clearly: no matter how strong your evidence may be, your demeanor while testifying is just as important in the eyes of the court. It is far too easy to hurt a would-be winner with a bad attitude, pettiness, greed, and anger. Stay cool, calm, even unshakable in the face of the opposing attorneys cross-examination– and trust me, it may seem brutal. Calm goes a long way.

Lastly, but not least, remember that Chancery Court judges are not concerned as much about your difficulties as they are of a child within their jurisdiction. They are the innocent victims. Be sure to keep testimony focused on the children. It is easy to get distracted, but can be avoided with proper preparation. I have had clients and opposing parties indicate extreme panic on the stand. Those scenarios present what I would call horrible optics for the court. Thankfully those cases are relatively few and far between.

If you need guidance in a child custody suit, we are prepared to extract the best results under your unique circumstances. And remember, attitude is everything.

Matthew Poole is a Jackson, Mississippi divorce and child custody attorney and proud father to his 8 year old son, Lucas.

Mom’s Advantage: Child Custody Myths Debunked

Monday, August 27th, 2018

Before I began my legal career in 2004 at Wilkins, Stephens, and Tipton, a large medical malpractice and pharmaceutical defense firm right here in Jackson, Mississippi, I was spared much of the knowledge and agony that regularly face domestic lawyers. Although the task of family attorneys can be very rewarding, it also presents the emotional rollercoaster that so many of us, lawyers included, seek to avoid on a daily basis. Practicing domestic law presents some certainties and a whole lot of grey area. A client’s ability to accept the human element and subjectivity that come along with family conflict are immeasurable to not only their own well-being, but that of their children.

There still exists a strong perception that mom has a significant advantage in a dispute with dad over the custody of children, particularly in the Southeast U.S.. We have time and again written on the Albright vs. Albright factors and their seminal importance in child custody litigation. They are extensively detailed in our prior blog posts. We began a series in January, 2018 that adequately outlines each of the factors that a court considers in child custody cases. The articles are written on an early college level so that readers are able to focus on substance over form and legalese.

I highly recommend to any litigant that they gain as much knowledge as possible to advance their cause. Knowledge IS power. Simply put, the Albright case outlines the criteria that a Chancery Court must consider in their deliberation as to the best interests of a minor child’s physical custody. Simple answers to child-custody cases do not exist, period. Years before I began practicing domestic law, Mississippi Chancery Courts were able to confer a modest legal advantage unto mom in child custody proceedings. Those times are essentially forgotten history.

The general rule of thumb prior to the Mississippi Supreme Court ruling in Albright was that a child was better served during their “tender years” by mom having physical custody. That is no longer the case. If I were advising a mother in a custody dispute, which I have hundreds of times, I would offer one simple tip: breastfeed as long as possible. Although breast-feeding alone is not an Albright factor, continuity of care is a factor, and Mississippi chancery court judges will always give great pause before even considering removing a child from the biological nurturing mom can provide. Score one for mom.

Do not believe the hype: Outside of the lone fact previously discussed, mom does not have any measurable advantage over dad in a custody proceeding. Partly due to the equal protection clause, a portion of the 14th amendment of the U.S. Constitution, and the changing dynamics in family structures, the law no longer favors a mother over dad in custody suits. It is crucial to any child-custody litigant to have recognition of the power vested in chancery judges. They not only interpret law, they find fact as in the role that a jury would in damages cases.

It is amazing that so many people with no legal training will continue to speak as if they are seasoned attorneys. They are not able to offer any appreciable wisdom to a custody litigant. It’s one more thing better left for the true experts such as myself. Ignore your friends attempts to be constitutional scholars, no matter how well-intended.

If you are going through a custody or visitation case, you already are aware of the stress and complexity they usually present. I am not only a single father, I have seen those battles from the front line likely as much as any single litigator around. I deeply understand the challenges that child custody cases present. We look forward to assisting you in your time of great need.

Matthew Poole is a seasoned Jackson, Mississippi domestic lawyer who has evaluated in excess of 6,000 domestic legal proceedings. His sole area of practice is family law.

The “Other Factor” That Can Sink Your Custody Claim: Alienating Child Affection

Monday, August 20th, 2018

I was recently in trial in the northern part of our great state and had a unique case wherein I had the good fortune of securing custody of a four-year-old little boy for my client, the father. The case was one of the most difficult I have ever handled in 14 years- both legally and emotionally. It was a roller-coaster of facts and subjectivity of the law, to say the least. The opposing attorney was highly competent; a seasoned prosecutor from Lee County- one of the best I have ever faced.

My client was guilty of some degree of minor violence; domestic abuse which was relatively easy to prove, and yet he obtained custody of his son. How can this happen, you may ask, and rightfully so. It seems the long odds stacked against my client were impossible to overcome. This case lasted 23 months in total. The victory was by a razor-thin margin. I was on hanging on every word from the court and counsel opposite until the very end.

Any custody attorney will harp on the factors a court will consider in determining the best interests in a child’s physical placement. Mom no longer has a clear and plain advantage, due in large part to the equal protection clause of the U.S. Constitution. The “tender years” doctrine has been significantly eroded, to the point that only breastfeeding an infant child confers some advantage to mom. Dad now starts on equal footing in a custody battle for all practical purposes. As a single father with sole legal and physical custody of my son, I have reaped the benefit of the recent change in law.

Beginning January 10, 2018 our office began a series of articles outlining all of the Albright factors- the defined matters for a court to consider in a custody dispute. We did not write only one article on the only non-specific Albright factor which is the most subjective; the one that is most easily described as a “catch-all”. Up for grabs and potentially up-ending any custody case are “other relevant factors”. What could these possibly be?

In all of the custody experience I have, never did I imagine that I could win a custody case based on these mysterious and elusive “other factors” when my client lost more than half of the specified Albright issues. Not in a million years did I believe that some undefined, highly subjective issue would win the day. And then, exactly that occured. I am still somewhat surprised by the result– pleasantly surprised, that is. The ugly head of parental alienation was the “other factor” that swayed the balance to my client’s victory.

Parental alienation of a child has always been regarded as paramount to a Mississippi court- even more so lately. That said, I have increasingly witnessed first-hand that if the alienating parent’s behavior is severe, courts will likely deem it to be tantamount to child abuse, negating what would be an award of physical custody to the opposing parent. To be frank, a decade ago this “other factor” would have been considered as just another Albright issue. Today, it can upend an entire case. That is music to my ears. Times have certainly changed.

Alienation comes in many shapes and forms. Most often it is in the nature of passive-aggressive parental alienation; making it difficult to get a hold of a child by phone, making subtle comments about the other parent’s morals and character, or even stoking a child’s concern about whether their other parent cares about them. Other times parental alienation takes on an overtly aggressive form.

The case that prompted me to write this article involved mom, who had a bi-racial son, instructing him to call his father and his family a “bunch of n___ers”. And it was all caught on tape. It didn’t happen only once, this four-year-old little guy, half African American, had made the infamous N-word a part of his vocabulary, all thanks to mom. It was horrible to hear on tape, heartbreaking at the very least.

The focus of this article is not necessarily parental alienation, it is a forewarning to parents who engage in extreme behaviors to the psychological and emotional detriment of their child. Be it excessive shaming of a child, prolonged absence, or just plain verbal cruelty, beware of the “other factors”–they can flat sink what would have otherwise been a custody victory. Chancery courts have broad discretion in child custody matters, and anything you say-to your child or anyone involved-can and will be held against you.

My last piece of advice is relatively simple. Mother Theresa once said, “Not all of us can do great things. But we can do small things with great heart”. I couldn’t have said it better. When navigating the treacherous waters of child-custody litigation, do not forget that children need love, happiness, and innocence of adult issues as much as they need food and water. It is easy to lose sight of this fact when angry at an ex-lover. Keep sight of what matters most: protecting your child from turmoil and shielding them from despair.

If you are involved in a child custody case that requires a robust knowledge base and formidable experience, I will gladly attempt to point you in the right direction. Be forewarned- simple answers to complex issues, particularly those involving child custody, are elusive and require a high level of competency. If you need just that, contact us anytime.

Matthew Poole is a single parent of an eight year-old boy, Lucas. He is well-acclimated to the various challenges that face single parents, both professionally and personally. His practice has been focused on child custody matters for 14 years as a parental advocate.