Posts Tagged ‘family law’

A THREE PART SERIES ON GRANDPARENT’S VISITATION

Friday, June 7th, 2019

By: Michael Louvier

INTRODUCTION

More and more often, the calls and emails to the Matthew S. Poole law office are originating from concerned Grandparents seeking visitation rights with their grandchildren. This topic was briefly touched upon in December of 2018 (“Happy Holidays to Everyone…Especially Grandparents” posted December 29, 2018); however, I believe this subject matter deserves a much more thorough examination and explanation. To that end, in the following weeks I will submit three (3) separated blog entries dedicated to the issues related to and surrounding GRANDPARENTS VISITATION.

In the initial entry, I will discuss the specific language of Sec. 96-16-3 (Miss. Code Ann. 1972), which is the controlling statute of this matter of law. This installment may, indeed, be somewhat repetitive of the December 29, 2018 entry mentioned above; nevertheless, it is certainly worthwhile to re-examine the elements of the statute as included by the State legislature.

The second installment will explore in more depth the individual elements of the statute. Within that article, I will seek to explain what a “viable relationship” means as it relates to Grandparents and Grandchildren. I will also discuss within the second installment the importance of financial support, both before and after the birth of the child.

The final article in this series will include a discussion of certain and very specific cases recently decided in Mississippi courts. The sudden military deployment, or incarceration, or even the death of a parent can give rise to a grandparent seeking assistance to ensure that their precious grandchildren can/will visit.

There can be no debate that Grandparents visitation rights have become a more commonplace cause of action in Chancery Court. I hope to shed some light on this ever-changing subject while dispelling some myths and misconceptions. I hope that you will visit this site in the upcoming weeks to read this series.

Michael Louvier is a regular contributor to the Matthew S. Poole Website blog. Michael is a graduate of Brother Martin High School, New Orleans, LA (1983), University of New Orleans (B.A. Political Science/English 1988), Mississippi College School of Law (Juris Doctorate 1994). He has been married for 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20). Michael and his family have lived in the Jackson, Mississippi area since 1991.

Ever-Relevant…The World Wide Web

Sunday, May 26th, 2019

By: Michael Louvier

Does anyone even remember when we referred to the internet as the “World Wide Web”? That is where the “www” in the site addresses that we all visit daily originated. Back then we tried to be cool and called it “The Web”… That was back in 1990 something prior to Al Gore inventing the internet (rumored, yet to be proven).

Today the internet is as commonplace as travel by automobile. Google and Google Maps have completely replaced the phone book as the easiest and most used methods of finding a business. The computer that we all carry around in our pockets (commonly referred to as a smartphone) will deliver you the phone number, web address, ratings, directions to and almost any other information that you could possibly desire about a business. The Yellow Pages have gone the way of the buggy whip. If you don’t immediately what a buggy whip is (or was), that’s my point.

Immediate and almost unlimited access to information is what the internet delivers. Prior to the “immediate information age”, lawyers actually had to research the law in books. By using the correct search tools and key words, recent and relevant case law is literally at the lawyer’s fingertips after proper training. Today lawyers and law firms save untold amounts of money on books and paper, and they save even more time and money (client’s money, thankfully) by utilizing the internet for legal research and the online filing of pleadings, motions and other case related Court documents. A lawyer may now “e-file” a pleading in a case from his home or office laptop computer. Furthermore, he can accomplish this task at any time of the day or night, regardless of whether or not the Clerk of Court is open. Alas, the internet has made the modern law office much more streamlined and efficient.

Please do not interpret the phrase “streamlined and efficient” to mean that your divorce and/or custody case will now be “easier” or even “less complicated”. Quite the contrary, the internet has made the profession of law more complicated and more competitive than ever. The fact is, everyone has access to this information. Everyone has become more streamlined and efficient. Lawyers, litigants, Judges, and even the children caught up in a custody battle have more information at the ready than ever before. The onus is; therefore, on the lawyer to be well prepared to use this wealth of information or, if the facts gathered by the other side via the internet (Social media) are harmful, he/she must be somehow savvy enough to not allow it to burn his or her client.

As Matthew Poole has previously stated in his article “Facebook: The Great Divorce Equalizer” (posted April 14, 2019): “…a decent lawyer is only a subpoena away from obtaining every social media post and response thereto since the day you walked down that sacred aisle.” More to that point, a Subpoena Duces Tecum served on the wireless provider will provide data regarding texts and calls – that is: who texted or called whom, and when, and how long was the conversation, etc.

This information can, of course, be very damaging to the divorce litigant with that “special someone” waiting in the wings as they text love notes to each other at 2:00am. This data could certainly be used to show that a parent has no idea that the teenager at issue in the custody battle is also texting and calling and snapchatting at all hours of the night and day – during school hours and instead of studying. This could be used to demonstrate a lack of willingness to actually “parent” the child or, even worse, the lack of ability. The Albright Factors, by default, as discussed on this blog site many times, just got introduced to the digital age and the 21st century.

As the love interest in the movie “The Social Network” (2010) told Mark Zuckerberg, founder of Facebook: “it’s the internet…its written in ink”. So be aware of your digital footprint, as it is very easy to use against you in Court, or in your favor if your lawyer is inclined to do the dirty work against your ex for your benefit.

Michael Louvier was born in 1965 in Metairie, LA, graduated from Brother Martin High School in New Orleans in 1983, received a B.A. from University of New Orleans (1988) and a J.D. from Mississippi College School of Law (1994) and is a regular contributor to the blog tab on the world wide website of attorney Matthew S. Poole – www.mspoole.com. If you are reading this, then you obviously have access to the internet and are on the site. Odds are, you are no longer depending on a “dial-up” modem to support this visit. Please include this site into your favorites list and click onto this site often. And may the force be with you. (Sorry, I could not resist a 1970’s reference).

Michael Louvier is married 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20).

TAGS: Family Law, Subpoena, Custody, Divorce, Social media, Albright factors

THE DEPARTMENT OF HUMAN SERVICES – SOME FACTS AND SOME FICTION

Monday, May 20th, 2019

By: Michael Louvier

“The Mississippi Department of Human Services is dedicated to serving others while providing a wide range of public assistance programs, social services and support for children, low-income individuals and families. The agency seeks to empower families so they can become self-sufficient and responsible for their future success.” (Source: MS.gov)

The family law office of Matthew Poole fields many telephone calls and emails with a similar message: The DHS is handling a child support case for me and they aren’t doing anything. Before you roll your eyes and assume that this article is a “hatchet-job” against the DHS, please understand that this is not at all my intention. Fact is, the DHS has many hard working and dedicated case workers and social workers who are doing the very best that they can. As with many of our government employees, both State and Federal, they are very often over-worked and under-paid.

With that said, let me get right to the actual point of the article: What the DHS does and what they don’t do, as it relates to a child support case.

The Department of Human Services acts as a “debt collection agency” for the State of Mississippi. That is, the child support division, through the many case workers and attorneys, strive to enforce the statutory guidelines regarding child support against punitive parents. This usually means fathers of children, either unwed or divorced, who are neglecting to adequately provide financial support for their children. The DHS will take on such cases, free of charge, for individuals who qualify. And that is the key element to this difficult equation: there are so very many individuals who qualify because of their low income. It stands to reason that the lower income single parent needs the child support funds more urgently than the DHS can accomidate. This fact creates a “Catch-22” (my apologies to Joseph Heller) in that these cases are of vital importance to the parent trying to raise a child (or in many instances children) without sufficient funds and yet the DHS is overwhelmed by the sheer numbers of cases in each and every county throughout the State of Mississippi and; therefore, the system is slow and the receipt of these vital funds is delayed. The longer the delay, the more vital the funds become. And this circular pattern continues and will continue ad nausium.

Once a Judgment for Support has been obtained by the DHS through the Chancery Court of the county wherein the child (or children) resides, there are several ways that the Judgment can be enforced. The most common way is through wage garnishment. The DHS can garnish the pay of the punitive parent as much as 35% of the paycheck. Unfortunately, many of these fathers simply change jobs, and now the DHS must become “private investigators” to seek out and find the new place of employment. This game of cat and mouse is very common. Another tool at the disposal of the DHS is the interception and seizure of any tax refund that the punitive parent is entitled – State and/or Federal. This power is quite effective, unfortunately it is only a “once-a-year” tool. The DHS can have the driving privileges of the punitive parent suspended. And finally, if the amount owed becomes substantial enough and there is no reasonable efforts to pay, the punitive parent can be incarcerated. These last two measures are an effective motivation for a parent to pay; however, if these options are employed by the DHS, this does nothing to financially support the child. The punitive dad is now driving on a suspended driver’s license or worse, he is in jail…but little Johnny is still going to bed hungry.

Over-worked with massive and ever growing case loads, while seldom appreciated and most definitely under-paid and for the reasons stated above often incapable of making a real difference – this is the unfortunate status of the Department of Human Services.

Some things that the DHS cannot do for their clients (or payors) include the enforcement of a schedule of visitation, nor can the DHS dictate the manner in which collected funds are spent.

All too often, a parent will complain that his child support obligation is being satisfied (either voluntarily or though some collection/garnishment activity) however the custodial parent will not allow for any substantial visitation with the child. This is not something that the DHS will assist you with. Another common complaint is that the mother is using the child support funds on herself: getting her hair and nails done or buying new clothes for herself but not the child. Again, the DHS is not interested in this type of problem. And while the DHS cannot and will not assist you with these issues that are relevant to the best interests of the welfare of the child, these are certainly NOT excuses or valid defenses for not satisfying a child support obligation.

Michael Louvier received a B.A. from University of New Orleans (1988) and a J.D. from Mississippi College School of Law (1994) and is currently a contributor to the blog articles for attorney Matthew S. Poole. Michael is married 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20).

Can I do this by Myself?

Monday, April 1st, 2019

At the law office of Matthew S. Poole, we field a myriad of questions from callers and emailers about the vast subject of Family Law. Some questions are well-versed, imaginative and even thought provoking. Others are laced with raw emotions and these may take us some time to determine the real nature of the call. And then there are those calls that seem to take our collective breath away. Some silly, some sublime and far too often the inquiry is, even for us simply unbelievable. One such inquiry that seems to recur about twice a month now involves a party to a newly filed Divorce proceeding who wants us to direct him to the forms that he can use to represent himself through the legal battlefield. Read that again. Takes your breath away, right? I’ll let you in an a very poorly kept secret: There are no forms that you can use to prepare you for this legal matter.

Let me paint the picture for you, as follows:

You and your wife (or husband, but I will be gender specific just to represent the male in this article) have decided that this is “it” – the marriage is over and a divorce is eminent. And so you decide together that you will agree to save money and only hire one attorney. No worries, right? After all, we have agreed to a divorce….what could go wrong? In a word: Everything.

Be advised that an attorney can only represent ONE party in any adversarial proceeding. And I can hear you whispering under your breathe that this divorce is agreed to and is not “adversarial”. Wake up and understand this: all divorce proceedings are adversarial by definition. That is not to say that everyone must be opposed to the other person involved about every issue; however, a divorce is “you versus me”. Otherwise, why are you getting a divorce?

Now I hear you whispering that you are smarter than that “pencil neck” that your wife hired….And you might be correct , but unless you are an attorney, then you are outmatched. You may be thinking “There is no way can that hired gun can understand everything about my case and my family as well as I do. No way can I be outsmarted in my world by someone not in my world”. Makes sense to me. After all, everyone wants to play fair, right? Don’t kid yourself. That lawyer, pencil neck or not, does this for a living and he is NOT on your side. He cannot be on your side, as this is specifically prohibited by the Rules of Ethics. That’s right – the Rules dictate that he must represent his client against you with zeal. (Please refer to blog article of December 5, 2018 “Are you smarter than…”).

Perhaps there is absolutely nothing that you are prepared to fight about. The marriage is over, the kids are grown and gone and there is no value to anything that you have accumulated during the course of the marriage. She can have the furniture and the new blender and you get the lawnmower and the poodle pup. This situation, while not very common, does occur. Even in this instance, an attorney should be utilized to make sure the pleadings are correctly drafted and appropriately filed with the Court and, most importantly, that the Final Judgment of Divorce is presented to the Chancellor and entered. Can you imagine if you sought to save a few dollars and ended up doing it all wrong, only to find out years removed from the filing that your Divorce was never finalized? We have dealt with this exact occurrence and the conversation with the new fiancee’ explaining why the upcoming nuptials must be postponed was more than a little uncomfortable.

More often; however, there are minor children involved, assets and liabilities that must be divided and satisfied. The subject matter is a maze: a legal minefield chock-full of traps and pitfalls. The pleadings can be confusing and the Property Settlement Agreement is usually more than 20 pages in length. There are several ways that you can be confused, or misled, or worse – lied to. Can you spot all of the angles and complexities? Probably not.

A friend of mine who was going through a divorce in a neighboring State commented to me that he couldn’t afford to hire a divorce lawyer. He had 3 children all under the age of 11, a house with a hefty mortgage, some savings and other assets as well as some debts incurred by both he and his estranged wife. He said that they were going to work it all out and he was going to represent himself. Sound familiar? I gave him this same advice that I now give to you, my reader: You can’t afford NOT to hire a lawyer.

Michael Louvier received a B.A. from University of New Orleans (1988) and a J.D. from Mississippi College School of Law (1994) and is currently the lead Law Clerk to attorney Matthew S. Poole. He is married 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20).

THE ALBRIGHT FACTORS REVISITED

Thursday, March 21st, 2019

Each and every Chancery court case in the State of Mississippi that determines the primary care and custody of a minor child (or children) will cite the case of Albright v. Albright. Within Albright, the Mississippi Supreme Court provided a list of factors that the Chancellor must consider when making the determination about the best interests of the minor child as it relates to the parent who should be awarded primary physical custody.

The factors, together with a brief explanation of each, are as follows:

  • The age, health, and sex (gender) of the child;

The commonly referred to “tender years doctrine”, which had suggested that very young children can only be cared for by the mother, has been on the decline. However, the gender and age as it relates to puberty and the corresponding biological issues can be considered in this factor. Also, any chronic and/or specific health issues that the child may be facing are to be considered. This factor would favor the parent that can better or more consistently attend to these needs.

  • The continuity of care of the child prior to the separation of the parents;

This relates to the stability of the relationship between parent and child and it can be difficult for a Chancellor to determine if this factor favors one parent over the other. (I suppose this is true of all of these factors). Testimony about the day-to-day care for the children is important. The consideration can become more clear if one parent moves out of the house and/or moves away and there is a lapse in time between those actions and the trial.

  • The parenting skills and willingness and capacity to provide primary care for the child;

Let’s face it, some people are not good with kids, even their own, and not all people have the desire to put in the time and effort to be the primary custodial parent. But where there is a court case about the custody of children, we can assume that they are willing to do so. Willingness notwithstanding, not all people have the mental, physical or perhaps financial capacity for primary custody.

  • The employment of the parent and the responsibilities of that employment;

Some parents are “penalized” for being the bread winner and can’t take off work whenever there is a crisis. On the other hand, self-employed or the business owner might have great responsibilities but also enjoy freedom of schedule.

  • The physical and mental health and age of each parent;

This factor seems fairly straight forward. Sick or mentally ill or alcoholic parents will be at a huge disadvantage, and perhaps they should.

  • The emotional ties of the parent and the child;

Unlike number 5, above, this factor is not so “cut and dried”. Witness testimony regarding how the child interacts with each parent is usually helpful. Therefore, your lawyer should know very early in the process about your potential witnesses. Some bonds are not mistakable and irreplaceable and we should all hope that the Chancellor, with the help of witness testimony, will be able to spot this kind of bond.

  • The moral fitness of each parent;

An “at-fault” party in a divorce proceeding may face the firing squad twice. An adulterous affair or proven addiction to drugs or alcohol would provide grounds for a divorce while simultaneously conceding this factor to the other party. Bad behavior of a parent, bad habits, poor morals, are often punished in Chancery Court.

  • The home, school and community record of the child;

For children advancing in age, active in sports, school and/or church activities wouldn’t want to uproot them. This factor can also be meshed in with factor #3, above. The parent who shows more involvement in schoolwork and other associations of the child will enjoy an advantage.

  • The preference of the child, when the child has achieved the age sufficient , by law, to express such a preference;

There is a common misconception that as soon as the child turns 12 (usually the recognized sufficient age) that this is the only factor… it is only one factor and in a Modification case, the other facets must be met first, as indicated in my prior blog article.

  • The stability of home and employment of each parent;

The Court would be reluctant to award primary custody to the parent who has a difficult time paying the rent, keeping a job, etc. Unlike factor #4, above, this one recognizes that a parent that holds down a steady job can be favored. So it would appear at first glance that these two factors (#4 and #10) are at odds with each other. Rest assured, they are not. Job stability, or the lack thereof, is the focus of this factor.

  • Any other factors relevant to the parent-child relationship;

This is the “catch all”. Chancellor that depends on this factor will most often define in clear terms what he is talking about and what piece of evidence or part of testimony during the trial that he has based this decision.

An Albright analysis is not supposed to be a score card system; that is, you don’t just add up each side to find the “winner.” Factors can favor one parent over the other, strongly favor, slightly favor, or they can be neutral. More or less emphasis can be placed on one factor over the other. An experienced family law attorney will be very knowledgeable about these factors and he should also be familiar with any specific “slants” or pre-conceived notions that the Chancellor assigned to your case might have.

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).

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.

ARE YOU SMARTER THAN…..

Wednesday, December 5th, 2018

Do you remember the popular television game show “Are you smarter than a 5th grader? The host, comedian Jeff Foxworthy, would ask an adult contestant general 5th grade appropriate questions. The more correct answers given, the more “cash and prizes” the adult would win. It was a fun show to watch, especially when the contestant would get an “easy one” wrong; fun for everyone except of course, the contestant.

Your family court dispute is certainly more important than a television game show, and so I will refrain from any “Family Feud” references. But the premise of the game show and your court case is very similar: correct answers are the key to you to winning, while wrong answers can always cause you to lose. With that in mind, let’s discuss the strategy of your case so that you will be able to answer the questions correctly and win the “cash and prizes” that are at stake in your case.

Preparation is the always the key. Gathering your relevant information, anticipating the strengths and weaknesses of your case (as well as your opponent’s), and familiarizing yourself with the process are the steps that the wise litigants take. Listed here are some of the more common steps to this process that you may prepare for, and doing so may make you a better “contestant”, and may save you some money along the way.

Initial questions from your attorney, both before and after you retain his services:

This is an often undervalued or overlooked part of the process; however, wrong answers at this early stage of your case can torpedo the entire effort. Moreover, the questions that are left unasked, either by the client to his attorney or visa versa may leave some of the more important information uncovered. You know your case better than anyone, and so it certainly makes sense for you to prepare for this meeting. Most lawyers have standard intake questionnaires” that are used for the basic information.

Written questions called interrogatories:

This can be very expensive, especially if you are not willing or able to assist your legal team. Its best to have the financials, tax returns and bank records ready when you first meet with your attorney, as this information is almost always going to be needed. Bottom line: the more you can help your attorney with this process, the more familiar you will be with the legal “game”. Be thorough and prompt when you are asked to provide these answers and information.

Demands for your information:

This includes your tax information, banking information, employment information, medical information, social media information, cellular activity, and , any and all other information that is exclusive to you. (YES, they are going to ask these questions, and they are entitled to the answers and information!).

These “questions” are most often asked by Subpoena Duces Tecum issued by the Court and served on either you, or your CPA, your employer, your cellular provider, your medical provider…you get the point. Properly issued subpoenas are honored by the recipient and your private information is certainly in play in this very high stakes game. Beware: social media posts are also fair game. You should always consider that whatever you post might be read by your mom, your priest, or worse: your opponent’s attorney!

Oral questions asked at a deposition:

Deposition subpoenas can be issued for you, or for anyone else who may have information useful to the case (witnesses). Not every case will employ this measure, but there are some things that you should be aware of if you are deposed. Consider a deposition as a practice run for trial. This process, much like the interrogatories, can be very costly simply due its the time-consuming nature. The wise participant prepares himself with his attorney. One helpful tip: Listen to the questions asked and answer it. Added information or expounded upon answers can help the other lawyer.

Oral questions asked at Trial or Hearings in your case:

All of the situations described, above, take place outside of the precence of the ultimate decision maker of your case. Any time the trier-of-fact (most commonly referred to as “the Judge”) is involved with the process, your answers must be correct. The trial portion is usually the end of the case and so these answers are the “Final Jeopardy” of the case. Inconsistent information in any facet of this process will make all of the answers wrong. That’s right: even correct answers at the end of the process, if preceded by a different (not necessarily wrong) response to the same question at an earlier stage in the case, can often prove very costly to the respondent. If the Judge believes you to be untrustworthy, dishonest, without credibility, or even just insincere or cavalier with your answers at trial, you have probably ruined your chances to have your case end successfully.

The best and often most successful contestants, both on the game show and in a legal proceeding are the ones who are best prepared. Any litigant, no matter the issue or type of legal dispute he is involved in, is more likely to satisfied with the results of the action if he is more prepared than his opponent. Therefore, the well prepared litigant in a family law case IS smarter than a 5th grader and the “cash and prizes” are more likely to be awarded to him in the end.

Matthew Poole is an award winning top 10 family lawyer and practices in Jackson, Mississippi. He has managed domestic cases in over 90% of the court districts in Mississippi over a 15 year period.

Doubling Down: Why Emergency Custody Matters Can Be Expensive

Friday, November 30th, 2018

Even in the most hotly contested asset-based divorces, when no children are born to a marriage, costs can be relatively predictable. Although true that alimony demands can often hang up the obtainment of a divorce, most of the time attorneys and litigants alike can come close to an agreement by doing a simple cost versus benefit analysis and a rudimentary calculation of the legal fees estimated to require a complete and final cessation of the marriage.

For obvious reasons, when children become involved, the level of complexity and thus expense of litigation becomes far more extended. So, what about emergency child custody matters? Why so expensive and unpredictable? The answer is simple: multiple hearings will be needed to finalize these often heart-wrenching cases.

In emergent child custody matters, the basic landscape (with some deviation depending on multiple factors) looks something like this;

  1. An initial hearing will be required in order to determine whether in fact the children are in harm’s way and an order is issued the corresponds with the evidence presented. These orders often only last for a short duration. The standards of proof in emergency hearings is often not precisely the same as in the other aspects of the case.
  1. The court then requires a second hearing to determine whether any relief granted should be temporary or extended until a trial date.
  1. The court often holds a third hearing to determine whether or not the emergency relief should be modified, clarified, or eliminated outright.
  1. Discovery (the process of obtaining evidence from the opposition in a lawsuit) issues often require another hearing on motions to clarify whether the parties have completely followed the rules of procedure and what outstanding obligations may exist. These are often simple but can range from basic to inordinately complex.
  1. A final hearing on the merits (trial) is held. Oftentimes there may be mandated a status conference prior to trial in order to shore-up any loose ends. These status hearings are usually not terribly time-consuming, but trial can last 4 hours or even an entire week, depending on how much evidence exists.

As you can see, emergency custody matters often require not just a couple of court appearances, but often approach or even exceed half-dozen mandated appearances and a large investment of time and attorney preparation. Although there is little question that these complex cases can be won based on the quality of preparation, no quick resolution should ever be expected by a custody litigant. Trust your lawyer’s advice assuming they are sufficiently experienced. Rookie lawyers often step on landmines along the way, further complicating matters that could have been relatively simple.

In sum, it is clear that emergency matters are far from the legal equivalent of ordering fast food. I would argue that they look far more like sitting for an extended five-course meal. My best advice is to not set unreasonable expectations. Be prepared for a drawn-out war, not a brief skirmish. There is always a path forward in order to do what is best for the young and innocent lives involved.

If you need help in estimating the requirements of your emergency custody case, feel free to give us a call.

Matthew Poole is a Jackson, Mississippi domestic attorney admitted to the state bar in 2004. He is a Millsaps Second Century Merit Scholar and has received national recognition in the area of family law.

Expectation vs. Reality: My Lessons in Practicing Domestic Law

Friday, July 27th, 2018

My name is Kenneth Davis, and I have been working for Matthew for close to two years total now. When I first began working in domestic law, I fell victim to much of the overly optimistic enthusiasm that so many young lawyers encounter. Coming from a very close family that has never needed intervention to solve conflicts between us, I was rather naïve to just how petty people can be in litigation over family matters. Family is the most important thing in this world, and sadly that often gets lost in the maze that is a domestic lawsuit. I say this not to downplay people’s emotions or investments in their goals for their family, but rather to be up front with people on the things I see on a day-to-day basis.

Much like professional golf, a lawyer-client relationship is much more of a team than most people think. The client does not only sign a petition and then sit back and let the lawyer do the rest. Clients are their biggest advocate, and they know more about their case than anyone else. The lawyer’s job is to trigger the client’s mind for information they can use to prove their case, and to present that proof to the judge in an effective way. Like a golfer and their caddy, a client and their attorney must be on the same page every step of the way to achieve the best result possible.

When I tell people I practice domestic law, what follows is usually a form of “that must be dramatic.” It certainly is, as family law impacts people’s everyday lives and their relationships with their children. Most of the stories I tell are the really ridiculous ones, such as fighting over the most minor things. I then realized that while many litigants mean well with their lawsuit, sometimes they are mostly fueled by spite. That is most unfortunate, because often the client’s reasonable goals take a back seat to that anger toward the other party. That can add unnecessary baggage and stress to an already volatile situation, and it can put strain on the attorney-client relationship at the expense of the result.

Domestic law can be a challenging and stressful arena in which to practice, although for the most part it is satisfying. It brings me great pride to know that these clients have trusted me with their familial relationships, which are sacrosanct. As with any area of law, proper discipline and teamwork make a world of difference in the outcome of a domestic lawsuit. The most important thing in a domestic case is to never lose sight of what you are wanting to achieve. It can be easy to get lost in the trees and lose sight of the forest. This is truly the best advice I can give to anyone I meet, whether it be a litigant, another attorney, or anyone with a goal they want to achieve.