Posts Tagged ‘Jackson MS divorce lawyer’

Corporal Punishment vs. Child Abuse: A Thin Line

Wednesday, August 1st, 2018

Can your child be taken away because of a simple spanking? When I was elementary school at a public institution in Rankin County, Mississippi, I had the misfortune of enduring the school principal’s penchant for enforcing rules by use of a very large paddle, equipped with golf-ball sized holes in order to increase the velocity of each collision. In the early 1990’s, it was standard fare to expect a good old-fashioned whipping from school administration for playground roughhousing or any other number of youthful misdeeds. Boy, how times have changed.

In today’s world of political correctness and fear of legal liability, it seems that those days are long gone, and will likely never return. Parents have often asked our office whether or not a Youth Court or Chancery Court has the authority to take their children from their physical custody wherein there has been significant corporal punishment. Gone are the days of schools bruising the rear-end of a miscreant child (usually boys, alas).

Desoto County, Mississippi recently dealt with an appeal revolving around the question of distinguishing between reasonable discipline versus child abuse, and the line is very thin and broadly within the discretion of the trial court in civil matters. In this particular instance, the appellate court had to consider the sufficiency of evidence utilized by the trial court in removing four children from their father’s custody. At hand was a simple query, at least at first glance.

The appellate court first, and a matter of proper judicial due course, considered the bare language of the applicable Mississippi statute, section 43-21-105(m). In pertinent part, said statute provides that an abused child is one “whose parent….has caused or allowed to be caused, upon the child… emotional abuse, mental injury, non-accidental physical injury or other maltreatment”. Wow, talk about a broad definition, allowing wide discretion for the judge. However, the statute on point also states that “physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section”. Thanks for the semi-clarification, right?

It seems to me that the question of whether or not corporal punish ment of a child is violative of Mississippi law comes down to good old-fashioned common sense. While the criminal statutes regarding abuse of minors are relatively easy to interpret, the civil law remains open to broad interpretation. It is my hunch that any physical punishment that is accompanied by bruising or other visible signature will likely run afoul of the statute on point, but the margin for interpretation is razor-thin. Foremost, always remember that the court will have wide leeway in drawing the line between abuse and reasonable corporal punishment. No two judges are the same and may see the same thing differently. Reasonable minds may, and will often, disagree.

If you are dealing with allegations of abuse or neglect and need guidance and effective legal counsel, we will gladly be of assistance. Always trust your better judgment and recognize that any child punishment of a child must not be done out of anger. In the words of the American author and Unitarian minister Robert Fulgham, “All I Really Need to Know I Learned in Kindergarten”. Well said.

Matthew Poole is a Jackson, Mississippi family lawyer focused on case evaluation and domestic conflict management. He was admitted to the Mississippi Bar in July, 2004.

Age 12: Not A Magic Number

Wednesday, October 11th, 2017

The law is full of misconceptions, and one of the most common ones that our office receives calls about is the role a child plays in a custody case. Many people seem to believe that when the child reaches age 12, they have the choice of which parent to live with. While age 12 does have some significance in custody cases, it does not give the child license to make that decision entirely on their own. It does, however, allow the child to express a preference, and the way the child chooses to do that may largely affect the outcome.

It is often a joke with lawyers that if we allowed children to make their custody decision, the child would pick whichever parent allows them to jump on the bed and have ice cream for breakfast. That is a slight exaggeration, but judges acknowledge that many 12-year-olds do not have the maturity to make the best decision for themselves. Several factors go into the judge’s decision on how much weight to give the child’s preference, such as the child’s age, their reasons for their preference, and the judge’s personal sense of the child’s maturity level.

If the child has good reasons for picking the parent they want to live with, a judge will most certainly consider the child’s preference. Good reasons include the school situation, the home environment, and, to some extent, the child’s community record. Reasons that will most likely not persuade a judge include picking the more lenient parent, being closer to a girlfriend or boyfriend, or, like the old joke goes, the parent who lets the child eat pizza for every meal. Ultimately, the case largely leans on the child’s ability to make a thoughtful, reasonable argument to the judge about what living arrangement is in the child’s best interest. Below are some examples of good and bad arguments by a child for their preference.

What may work: “Your honor, I want to live with this parent because I believe this environment is best for my personal growth and educational opportunities.”

What will probably not work: “Your honor, this parent is stricter than the other, and therefore I do not wish to live with them.”

A child’s living arrangements is an extremely important decision, and courts prefer to have the child involved as much as possible. Allowing a child of 12 years or older to be able to show a preference and giving them the opportunity to speak on their behalf achieves that while still giving the court enough control over the situation to make the decision that is in the child’s best interest. We often hear the misconception that the child has control over their custody arrangement, and while they do play a role, it is not as great as many people believe. If you or someone you know has a custody problem, call the Law Office of Matthew S. Poole. Our office has the experience and knowledge to properly address your case and achieve a fair result. With any questions, call our office at 601-573-7429.

Grandparents Do Have Visitation Rights!

Wednesday, July 26th, 2017

Are you a grandparent of a child of divorce shut out of your grandchild’s life? In Mississippi, grandparents have a statutory right to visitation with their grandchildren, in limited circumstances. The polestar consideration in matters of child custody and visitation is “what is in the best of interest of the child?” In Mississippi, specific statutes confer upon grandparents certain visitation rights under specific circumstances. Below is the logical flow chart of the specific statutes that apply.

The statutory circumstances that apply to visitation rights are as follows:

Parent of the noncustodial parent;

Parent of the parent with terminated parental rights;

Parent of a deceased parent of the child; OR

Grandparents who do not fit any of the above three categories may still petition the court for visitation rights

Grandparent must prove an established “viable relationship” (defined below) with the child; OR

Grandparent must show the court that the custodial parent unreasonably denied the grandparent visitation rights; AND

Grandparent must convince the court that granting visitation rights to the grandparent are in the best interest of child.

“Viable relationship” as it relates to visitation rights of grandparents means “a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child, the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year, or the child has been cared for by the grandparents or either of them over a significant period of time during the time the parent has been in jail or on military duty that necessitates the absence of the parent from the home.”

Your rights to grandparent visitation are worth pursuing if such would be in the best interest of your grandchildren. The above summary of the statutory rights conferred upon grandparents by the legislature is not an exhaustive list of factors the courts consider when making a determination of visitation with a child. Furthermore, the particular facts of your case are determinative of the proper court in which to file your petition for visitation rights. Establishing visitation rights of grandparents can be complicated and should be done with advice and representation by a qualified attorney.

If you are a loved one has questions about grandparent visitation issues, schedule a consultation with the Attorney Matthew S. Poole. Matthew has over a decade of experience representing parties in all matters of visitation, including many grandparents.

Myth: Courts Give Mothers Preferential Treatment for Child Custody When Child is Young

Tuesday, July 11th, 2017

Early American courts favored mothers over fathers for custody of young children. The legal tradition of preferential treatment of mothers eventually led to the adoption of the “tender years” doctrine. However, Mississippi courts no longer give preferential treatment to mothers of young children in child custody cases, with limited exceptions.

The “tender years” doctrine is a 19th century principle rooted in common law and stood for the premise that a mother of children of tender years (generally 4 years or younger) was presumed to be the best parent to care for young children. This was the legal rationale courts used to award mothers custody. Mississippi, as have most states, has trended towards a more balanced examination of both parents in determining which one is the best custodial parent of a child. Rather than completely abolish the “tender years” doctrine, it has been included as an Albright Factor (discussed extensively in other blog entries). Thus preferential treatment, as it relates to the “tender years” doctrine, is still a factor, but weighed against all the other factors courts consider.

There are, however, rare exceptions to the general rule against preferential treatment of mothers. When chancellors (family law judges) apply the Albright Factors to their analysis of the parents in a child custody case they do so with the best interest of the child as the overriding determinant. Courts in Mississippi consider it the best interest of a breastfeeding child of tender years to remain with the mother, thus giving these breastfeeding mothers preferential treatment in cases of child custody. Of course a father may present facts to the court, such as drug use of the breastfeeding mother, which override the interest of a young breastfeeding child remaining with the mother.

Suffice to say that the preference given to mothers in child custody determinations has diminished in weight to an appropriate position as one of a dozen or more Albright Factors. Ultimately, courts are going to consider many factors when making a child custody determination of a child of tender years. If you are a father or mother of children of tender years there are many issues to consider with an attorney. Matthew S. Poole has the experience and expertise to assist you in all your child custody needs. If you or anyone you know has a question about child custody matters, please contact the Law Office of Matthew S. Poole at 601-573-7429.

Why Is My No-Fault Divorce So Difficult?

Wednesday, December 21st, 2016

Many people in the state of Mississippi, as in other areas of the country, seek to finalize and dissolve their marriage under what is commonly termed a no-fault divorce, also known as irreconcilable differences divorce in legal terms. No-fault divorces offer a variety of benefits for a prospective client, including that they are less expensive and less stressful than going through all of the arguing and fighting that accompany fault-based divorces and the lawsuits that are necessary in order to obtain a fault-based divorce.

As we’ve discussed many times on this website, and as is known by the majority of the legal community, fault divorces require the filing of a traditional lawsuit against your spouse. Many people wonder “why is it that my no fault divorce seems to be so difficult?” In short, no-fault divorce really has nothing to do with whether or not one of the parties or both have committed wrongdoing during the course of the marriage. No-fault divorces exist only when both parties have a clear agreement as to all of the issues involved in the divorce. When the parties have a child or children, own property, or have established separate living arrangements will complicate matters. No-fault divorces become less and less likely when more issues are involved. It is usually our recommendation that in a scenario where both the husband and the wife own little or no property, a no-fault divorce is easily attainable and should be pursued.

It is important, however, to note that in instances where there is not a firm agreement on all issues, a no-fault divorce is not an option. If the payment of attorney’s fees, alimony, whether or not one party wishes to stay in the house with the objection of the other, the visitation schedule of the children, or the possession and payment of automobiles or expenses related to any property owned by the couple is not agreed to, fault divorce is needed.

I’ve practiced domestic law for in excess of thirteen years, and have realized that there are several scenarios where the parties are very close to an agreement; however there are a few sticking points that have precluded them from reaching some final resolution to the dissolving of their marriage. Always remember that it is cost effective to agree on terms of divorce, but this is more easily said than done.

My general recommendation would be that if you are close to an agreement but have not yet obtained one with your spouse, make a short list of the issues that you do agree on prior to contacting an attorney. If you are able to make a list of the things that you do agree on and have very few things left over that could be resolved with a minimal amount of effort, you are on the path to a no-fault divorce. If the filing of a lawsuit against your partner is necessary, you will spend a significant amount of money that can go toward a better use, such as the support of your minor children or the sustenance of your daily living expenses. It is likely that you will need to contact an attorney at some point in order to get some advice about whether or not your divorce is in fact a no-fault or irreconcilable differences matter. If you are able to make some accommodation with your spouse in terms of resolving the major issues, it seems that likely that you will be able to obtain a no-fault divorce with minor adjustments to any initial draft of your agreement with your spouse. Don’t try to win every battle, just win the ones that matter most.

If you are seeking advice as to whether or not a no-fault, or “I.D.” divorce is attainable in your current scenario, we’re best equipped to provide you with assistance in making that determination and advising you as to the best path moving forward. Please feel free to call us for a no-cost telephonic consultation any time at 601-573-7429.
Law Office of Matthew Poole.

Why You Should Avoid Dating During Mississippi Divorce

Monday, November 25th, 2013

Many divorcing spouses are eager to re-enter the dating world.  Often, one’s marriage has been effectively “over” long before the divorce papers were signed.  Given the emotional toll of divorce and its isolating effect, it is natural that some soon to be divorcees desire to re-enter the dating world as soon as possible.  However, dating before your divorce is final can be dangerous to your case, as well as to you and your family.  Here is a list of reasons why you should avoid the temptation to date before you are completely divorced:

  1. Dating can negatively impact your spousal support and property division – dating could impact your divorce in a few ways, including financially.  If you plan to move in with your new partner, it can impact your receipt of spousal support and even property division.  Further, dating while still married is a form of adultery in Mississippi and can be grounds for fault based divorce.  You do not want to give your partner the ability to use this fault ground against you.
  2. Dating can negatively impact child custody – dating can become a factor in child custody determinations.  A court looks to a parent’s “moral fitness” in determining the best interests of the child for custody decisions, and dating while still wed, even if the marriage feels over for you, can have negative implications.  Further, courts will want to address whether the new partner is being left alone with the children or spending a significant amount of time with them.  If your new love interest has a criminal record or somewhat unsavory character, you could lose time or even custody of your children due to dating this individual.  Generally speaking, for a child custody determination, dating is not going to be positively viewed in court.
  3. Dating can lead to jealousy, anger, and in turn less cooperation from your spouse or even retaliation – uncovering your soon to be ex-spouse is dating another individual before the divorce is even final can naturally lead to feelings of anger and jealously.  When you are trying to negotiate a favorable divorce settlement, these are not the emotions you wish to evoke in your former spouse.  Dating while divorcing may cause a breakdown in negotiations or revocation of a previously reached agreement.  It may even cause your spouse to act irrationally, seeking retaliation.  Possible retaliatory acts could include requesting sole custody, fighting against an alimony obligation, or reneging on a previously reached property settlement agreement.
  4. It can harm you emotionally – you are just leaving a marriage and emotions are undoubtedly high.  Divorce is a psychologically traumatic event for anyone to experience.  Starting a new relationship before you have completed your divorce and been single for awhile can be emotionally damaging for you, as well as for your new partner.
  5. Your children may suffer – there is no way around it, divorce is hard on children.  Children are often trapped in the middle of a divorce, feeling like their family is being broken apart.  This is a time when your children need all the focus and attention you can muster.  Adding another individual to the mix at this crucial time in a child’s life is generally not in their best interest.

Matthew S. Poole is a compassionate Jackson MS divorce attorney who understands your desire to re-enter the dating world.  Matthew has extensive experience advising divorcing couples on the do’s and don’ts of divorce, and will ensure you do not inadvertently harm your divorce case through dating or any other actions.  Call The Law Office of Matthew S. Poole today at (601) 573-7429 to schedule a free case analysis.

When Dividing up the DVD’s Stalls Out the Divorce

Wednesday, September 4th, 2013

Anyone who has seen the movie “War of the Roses” probably believes that real couples would never go to such extremes during a divorce. They would be wrong. There are scores of divorce horror stories out there, each one more extreme than the last. There is the story of the husband who literally cut the marital home in half with a chainsaw to spite his wife, or many instances of couples who “draw a line” through the middle of the home, daring the other to cross it. While we assume that it would be the big ticket items like the house, car and retirement pension that create the most disagreement during a divorce, in many instances it is the small, seemingly insignificant items that can put a divorce on hold indefinitely.

Couples have been known to fight for years over the family dog, Aunt Emma’s china or even the book or DVD collection they amassed during the marriage. Even though the couple involved in the fight over “stuff” is probably aware on some level just how crazy it is, that “stuff” is always more than a thing—it is a source of deep emotions between the spouses. These “things” can be a symbol of the couple’s relationship and the part of their lives they had invested in one another. Unfortunately, judges are known to get downright crabby when they are required to spend their valuable time trying to convince couples to divide the household goods and some may make arbitrary decisions that nobody is happy with should an agreement not be reached.

When Outside Help is Needed
The problem with fighting over the couch in the living room, the weed eater in the garage or the ceramic owl salt and pepper shakers is that thousands of dollars in legal fees are being racked up every time negotiations ensue. In some cases mediation may be the only way to resolve the issue or a neutral friend might be able to move things along, acting as the calmer voice of reason. It is important that both parties understand the courts will typically award a household asset at a garage sale value. In other words the court will not place the same value on your things as you do. In the case of really high-dollar artwork or antiques, bringing in a professional appraiser will be necessary, but in the case of most people’s household goods, it is unlikely anyone else believes they are as valuable as you.

How to Get Past the Stall
Before you get into arguments about your things, make a comprehensive inventory. You may do this the old-fashioned way—with a paper and pen—or with a video camera or computer-generated list. Both parties will look at the inventory, making notes of what they would like to have, what items they don’t care about one way or another, and what they absolutely must have. On a piece of paper, make a “his” column, a “her” column, a “sell and divide the money” column and, finally, the column of things you are unable to agree on. The items which one person wants and the other does not are easy to categorize. The items nobody cares about, place in the “sell and divide” column. When at all possible, don’t break up sets—keep the table with matching chairs or the matching set of dishes together. Go through the entire inventory until you are left with the dreaded fourth column of items you both want.

Distributing Items You Both Want
Once you get to this point you can either use the method where one person picks one item, the other picks one and so on until the column is empty (flipping a coin to see who goes first), you can agree to sell all the items you can’t agree on and split the money, you can let the judge make the decision and hope for the best or…you can ensure your attorney is able to take that vacation he or she was hoping for. Be aware, however that the longer your divorce stretches on due to disagreements over things, the more negative feelings are likely to build—as your pocketbook shrinks. In the end, it may be necessary to remind yourself that it could be worth losing some of your things in order to get on with the next chapter of your life.

How Matthew S. Poole Can Help
Your divorce attorney can put some perspective on disagreements over household items, and it is wise to allow that to happen. It can be difficult to see the “big picture” when you are flooded with emotion, so listening to your divorce attorney is a wise decision. Matthew S. Poole understands the emotions involved in divorce and has the experience necessary to assist you in making the difficult decision on all aspects of your divorce. Matthew will work tirelessly to ensure you get your fair share in the divorce, while offering the calm voice of reason when necessary. For a consultation, call (601) 573-7429 today or visit our website for more information.