Posts Tagged ‘Family Law Attorney in Jackson Mississippi’

In Loco Parentis: A Mile In Their Shoes

Wednesday, September 27th, 2017

Many of us have figures in our lives that mirror the role our parents play. Someone you trust, respect, and love. In some adult-child relationships, those people can step into the role of a biological parent. The doctrine of in loco parentis, which roughly translates to “in the place of a parent” addresses these relationships, and attempts to protect the best interests of both the child and the adult. Because of the delicate nature of these situations, Mississippians should know their rights when they believe that a child belongs with them instead of the natural parents.

When a person stands in loco parentis, they have assumed the status and obligations of a parent. Farve v. Medders, 241 Miss. 75, 81, 128 So.2d 877, 879 (Miss. 1961). This means that person provides parental supervision, support and education as if the child were their own. W.R. Fairchild Constr. Co. v. Owens, 224 So.2d 571, 575 (Miss. 1969). In loco parentis status carries the same rights and liabilities that belong to a natural parent, including a right to custody of the child against third parties. Farve, 128 So.2d at 879.

Although in loco parentis grants these rights, the rights of the natural parents are still superior. Mississippi law recognizes the natural parent presumption, which presumes that the biological parents of a child are the best guardians for that child. A third party’s in loco parentis status, standing alone, cannot by itself rebut that natural parent presumption. Smith v. Smith, 97 So.3d 43 (Miss. 2012). For a third party to rebut the natural parent presumption, it must be shown by clear and convincing evidence that 1) the parent has abandoned the child; 2) the parent has deserted the child; 3) the parent’s conduct is so immoral as to be detrimental to the child; or 4) the parent is unfit, mentally or otherwise, to have custody. Smith, 97 So.3d at 46. This is obviously a high burden, especially given that clear and convincing is the highest standard of proof used in civil courts. Once the presumption is rebutted, courts may then decide the custody of a child using the Albright factors.  http://www.mspoole.com/case-results/albright/.

Children deserve to have the best parental figures available to them. Unfortunately, sometimes the best parent is not the biological one. When someone stands in loco parentis to a child, that child depends on them to be there for them, and the law can help that person keep their rights to do so. If you or someone you know has a question about in loco parentis rights, call the Law Office of Matthew S. Poole. Our office has the knowledge, experience, and passion needed to best address your legal situation, and to help you keep your rights to foster a relationship with a child who needs you. To schedule an appointment, call our office at 601-573-7429.

Considerations in Hiring a Domestic Lawyer

Thursday, December 8th, 2016

There are a huge number of variables to consider before hiring an attorney for any legal matter, and when it comes to a matter of domestic law, that consideration is especially important. This particular area of law is quite complicated and can be confusing, and there are certain criteria that prospective clients should be aware of before hiring an attorney for a divorce, modification, or custody issue. I have practiced in the domestic arena for thirteen years and have handled over twelve hundred domestic matters during that time.  Let me give you some basic advice that hopefully will benefit the interests of justice for yourself and your child.

First, I would like to make very clear that there is no one specific set of rules that dictate what makes a competent, ethical, and able attorney, one who will ensure that your rights are protected under any one set of circumstances.  In my opinion, all successful attorneys share one common attribute – they have the proper skillset to perform their job.  In other words, the best domestic/family law attorneys are always on the offense.  The general theory and belief amongst the best domestic attorneys is that as long as you are attacking the opposition, you are winning. Keeping them on the defense makes them unable to use their time to attack you.  It is always better to be on the offensive, and it is very difficult in any circumstance to score points with the court when you constantly have to defend allegations from the opposition.  This is not to say that frivolous accusations are heralded or met with favor from the court; however, in any domestic scenario, there are only so many angles at which to bring valid factual allegations against your opponent in order to gain favor with the court and to demonstrate with the court that you are in fact on the “high ground” in terms of the legal merits of your custody or divorce case.

I would highly suggest that anyone searching for a domestic attorney seek one who doesn’t “wear too many hats” – in other words, one who isn’t a proverbial jack-of-all-trades.  The reason I say this is that in Chancery Court we often see attorneys who handle car wrecks, DUI’s, felony criminal matters, and practically anything and everything else they can get their hands on in order to pay the bills.  I strongly advise against hiring an attorney who wears too many hats.  It’s possible for an attorney to be competent and able to practice in two or more different areas effectively; however, your bets are best hedged when you hire an attorney whose practice focuses on a more specific practice area. For comparison, would you entrust your health or the health of a loved one to a thoracic surgeon who is also a vascular surgeon, an oral surgeon, a family practitioner and a plastic surgeon? There is no way he or she could have mastered so many areas, all of which are vastly different and require vastly different skillsets. And whether it be medicine or law, the advice is no different: leave the “jack-of-all-trades” for the rural areas that have few options when it comes to either profession.

The last bit of advice I would give anyone seeking an attorney for a divorce or child custody matter is to look at the amount of experience the attorney has in that realm.  I have occasionally run across attorneys who have practiced for four or five years, who are competent and who, at the very least, do a sufficient job in representing their clients.  However, I would caution that seven to eight years of experience should be considered the standard prerequisite for having mastered the nuances of the case law and statutes which permeate domestic litigation. An attorney’s experience is invaluable and crucial in helping you to obtain the best result for your own unique circumstances.

If you would like to speak with us regarding your domestic matter, be it divorce, custody, modification, or contempt in Chancery Court, please give us a call at (601) 573-7429 and we will be glad to schedule a consultation.

Separate Maintenance/Alimony Considered by Court of Appeals

Monday, August 29th, 2016

Recently the Rankin County Chancery Court was appealed on a claim by a wife for separate maintenance which is also considered separate alimony.  The claims of the wife include the issue of her being entitled to support outside of child support, which would be considered alimony or temporary separate maintenance.  The Rankin County Chancery Court heard a case in Spotswood v. Spotswood wherein the court was asked to consider a claim that the husband was required to reimburse the wife for insurance premiums that she paid through her employment and that she would also request payments for the mortgage of the marital home that the husband and wife owned jointly.  The Rankin County Chancery Court determined that the husband reimburse the wife for those insurance premiums as well as pay half of mortgage payments for the marital home, although the husband had departed the marital home.  The husband argued that the chancery court made an error in ordering him to make payments on the marital home as well as the insurance payments and essentially granted the wife’s request for separate maintenance or alimony even though the court specifically found that the wife was not entitled to the payment for separate maintenance or alimony.  The Court of Appeals determined, after reviewing the entire record, that if the lower court had found that the award of separate maintenance or alimony is not warranted then the court cannot order one spouse, in this case the husband, to undertake obligations for the benefit of the other spouse, in this case the wife.  Essentially the Court of Appeals was presented with a question that has been litigated in Chancery Courts around the state of Mississippi for decades.  The Court of Appeals resolved a solitary issue here and found that the wife was not entitled to separate alimony or maintenance because the court of Rankin County determined that she was not entitled to the same.  The court, in essence, determined that the husband was not required to make the payment for the mortgage of the home or insurance, as the Rankin County Court had previously adjudicated.  Therefore the Court of Appeals reversed and rendered the decision back to Rankin County Chancery Court in order to have them make a determination of the issues aside from the decision that was made; that the husband could not be required to make payments outside of the scope of alimony even if they were in the guise of insurance or mortgage payments after the determination had already been made that separate alimony or maintenance during the parties’ separation was denied.


If you need assistance with a separate maintenance or alimony issue, contact The Law Office of Matthew Poole, and we are best able to provide you with the assistance and advice in order to bring your case to a fair conclusion.

Matthew Poole (601) 573-7429.

Alternating Physical Custody of a Young Child

Sunday, August 21st, 2016

It has become common in the state of Mississippi, as well as other jurisdictions, that parties to a divorce as well as custody actions have requested that their minor child be as close to equally split in physical custody as the court will permit. On the day of the trial in a recent case that went to the court of appeals, the husband and wife agreed to consent to trial of the divorce on solely irreconcilable differences and permit the chancellor to resolve the issues of physical and legal custody of the minor child of the marriage. At the time of this marital dissolution the parties were jointly parenting a five-year-old little girl. After hearing evidence based upon the testimony of the parties excluding the fault-based grounds that were dropped ,the parties were both awarded approximately an equal split on physical custody until the daughter was able to attend kindergarten. The wife argued that the chancellor mistakenly failed to decide who would have custody of the daughter when she started kindergarten. The wife did not argue that the final order of the court was not final and appealable, but the underlying issue to be resolved was the parallel to this issue. In his ruling, the chancellor failed to specify the exact month and year in the final judgment of the child’s reversion to standard physical custody on the part of the mother. The wife also argued to the court of appeals that the chancellor failed to consider if the joint custody arrangement was practical due to the distance the daughter had to travel. At this point, the father lived in San Antonio, Texas. There was a significant argument as to the impracticality of traveling to San Antonio, Texas from Brandon, Mississippi, even prior to the child starting kindergarten at 5 years old. In this case, the chancellor found that shared custody was in the best interest of the child, despite the fact that she would have to travel significantly to spend time with either parent. Given the distance between San Antonio, Texas and Brandon, Mississippi, the court of appeals determined that the custody arrangement was not in the best interest of the minor child. Thus, the case was reversed and remanded with further instructions to the court to make adequate consideration of the travel time in order to effectuate this difficult provision in terms of travel for alternating custody. The important point to remember is that a significant amount of precedent discourages the use of alternating custody arrangements even prior to a child attending school.

If you need help with a complicated or complex custody arrangement or need advice on how to best proceed in order to parent your child or children, call the Law Office of Matthew Poole, and we will be happy to help in any way that we can within the bounds of existing legal precedent.

Matthew Poole (601) 573-7429.

“Can Parental Alienation of Children result in Contempt of Court?” – A Summary Prepared by Matthew Poole, Jackson, Mississippi Child Custody Attorney

Sunday, May 15th, 2016

Although some states recognize parental alienation as a separate cause of action without the need for showing direct contempt of a court order, Mississippi Law has yet to directly correlate parental alienation with the laws that require compliance to the strict terms of the judgment of the court. It is well accepted that contempt of a Mississippi court order regarding visitation, custody, or support is based upon a standard that has been clear precedent for decades. In general, contempt of a court order can be shown by demonstrating; 1. The presence of a lawful valid court order, 2. A violation of that court order, 3. That the violation was willful or “contumacious”. Violations of court orders are common place throughout every jurisdiction, however, without a showing of contumacy there can be no holding by any Mississippi Chancery jurisdiction that contempt is present. Contempt has traditionally been held as a disregard of or disobedience to the rules or orders of a judicial body by disorderly behavior so as to disturb the proceedings or impair the respect to that judicial body. The normal sanction for contempt is either monetary sanction or incarceration until the contemnor has complied with the court order and thus purged themselves of contempt.

It is common that court orders regarding child custody, whether by agreement or after a trial, include language that prohibits disparagement to the children of either parent. It is also well held law that modification of custody may be based upon substantial interference with visitation or extreme interference with either party’s parental relationships with their children. Interestingly, a violation of a non-disparagement clause in a court order has also been held also to warrant modification of custody, visitation, or any of the terms of visitation. In order to obtain a modification of physical custody, there must be a showing that the disparagement of one parent to the child has an adverse impact on the child. There have been several cases in MS where children have exhibited of high levels of anxiety and depression that has been linked to the disparagement and conflict between the parents.

It is highly recommended that in any divorce or child custody proceeding that a non-disparagement clause be explicit since there is no direct recognition of alienation syndrome in MS. Without specific language in the court order prohibiting such conduct it is likely that disparagement will not be held to be contumacious and will solely be potential ground for modification of custody or visitation. Keep in mind that a showing of contempt requires far less proof than seeking modification of any prior court order.

If you would like to schedule a consultation with a MS family law attorney with extensive experience in these matters, call Matthew Poole at 601.573.7429. We practice primarily in Hinds, Rankin, and Madison County, Mississippi but also cover any county in Mississippi.

Although some states recognize parental alienation as a separate cause of action without the need for showing direct contempt of a court order, Mississippi Law has yet to directly correlate parental alienation with the laws that require compliance to the strict terms of the judgment of the court. It is well accepted that contempt of a Mississippi court order regarding visitation, custody, or support is based upon a standard that has been clear precedent for decades. In general, contempt of a court order can be shown by demonstrating; 1. The presence of a lawful valid court order, 2. A violation of that court order, 3. That the violation was willful or “contumacious”. Violations of court orders are common place throughout every jurisdiction, however, without a showing of contumacy there can be no holding by any Mississippi Chancery jurisdiction that contempt is present. Contempt has traditionally been held as a disregard of or disobedience to the rules or orders of a judicial body by disorderly behavior so as to disturb the proceedings or impair the respect to that judicial body. The normal sanction for contempt is either monetary sanction or incarceration until the contemnor has complied with the court order and thus purged themselves of contempt.

It is common that court orders regarding child custody, whether by agreement or after a trial, include language that prohibits disparagement to the children of either parent. It is also well held law that modification of custody may be based upon substantial interference with visitation or extreme interference with either party’s parental relationships with their children. Interestingly, a violation of a non-disparagement clause in a court order has also been held also to warrant modification of custody, visitation, or any of the terms of visitation. In order to obtain a modification of physical custody, there must be a showing that the disparagement of one parent to the child has an adverse impact on the child. There have been several cases in MS where children have exhibited of high levels of anxiety and depression that has been linked to the disparagement and conflict between the parents.

It is highly recommended that in any divorce or child custody proceeding that a non-disparagement clause be explicit since there is no direct recognition of alienation syndrome in MS. Without specific language in the court order prohibiting such conduct it is likely that disparagement will not be held to be contumacious and will solely be potential ground for modification of custody or visitation. Keep in mind that a showing of contempt requires far less proof than seeking modification of any prior court order.

If you would like to schedule a consultation with a MS family law attorney with extensive experience in these matters, call Matthew Poole at 601.573.7429. We practice primarily in Hinds, Rankin, and Madison County, Mississippi but also cover any county in Mississippi.