Posts Tagged ‘Jackson’

Albright Factors: Age, Health, and Gender

Tuesday, January 16th, 2018

Many of you are probably thinking that, according to our last post, that the age of the child is no longer considered a major factor in child custody decisions. This is not true, as even though the tender years doctrine is no longer treated as a hardline rule, the age of the child is still a factor that courts weigh in these cases, along with the health and gender of the child. The Mississippi Court of Appeals noted that sometimes all three factors are grouped into one larger factor, and sometimes age is separated from health and gender as its own factor. Flowers v. Flowers, 90 So.3d 672, 679 (Miss. Ct. App. 2012). While these factors may seem rather cut and dry, there are many ways that an attorney can construe these factors in the favor of their client to swing the balance of the court’s decision on child custody.

While most parents are concerned and interested in the health of their child, not all of those parents can give the child the attention their health deserves. Children afflicted by serious illnesses require a lot of personal care, and that means a lot of doctor’s appointments. Courts may look to see which of the parents is more able to accompany the child to these health-related appointments in making their decision on custody. That parent may also be better able to spend more time with the child making sure they feel safe, loved, and often simply to take their mind off their illness. While a parent with a demanding job can feel a huge amount of concern for their child’s health, they also cannot be in two places at once.

As mentioned in our previous post, the age of the child was given large consideration in child custody decisions, and although it is not the only factor, courts still use it in their analysis. The age of the child often relates to breastfeeding, as the standard was that during the child’s “tender years” that the presumption lied with the mother being the best guardian until either parent could equally care for the child. Before the prevalence of formula, this factor would have all but certainly favored the mother, leaving fathers with an uphill battle for custody of their child.

Related to the application of the tender years doctrine is the factor of the gender of the child. This factor can play a part as the child grows older and enters adolescence. Mississippi courts have noted that growing and maturing boys could need guidance from their fathers, as well as maturing girls from their mothers, and that this needed help and direction should be considered when making a custody decision. Parker v. South, 913 So.2d 339 (Miss. Ct. App. 2005).

The health, age and sex of the child factors in child custody cases may seem like afterthoughts compared to some others that will follow in this series, however these can still play a pivotal role in a chancellor’s decision in awarding custody. If a parent is able to spend more time with a child affected by illnesses, a chancellor will consider that. If the child is entering a confusing and frustrating time in their lives and one parent is better suited to help them through it, a chancellor will consider that as well. Many people will probably skim over this factor because it is often not a “smoking gun,” but it is still worthy of consideration, because it can play a large role in the outcome.

Introduction to Albright: The Tender Years Doctrine

Wednesday, January 10th, 2018

One of the more common misconceptions we hear from clients in our office is that there is an inherent bias toward the mother in child custody actions. While it is often true that the mother has been the child’s primary caregiver, there are still 11 other factors that courts weigh to make the decision that is in the child’s best interest. However, before these factors were spelled out in Albright v. Albright, Mississippi courts often made this decision with emphasis on the tender years doctrine.

The tender years doctrine basically stands for the idea that during a child’s “tender years” (birth to around 3 years old), that the child’s best interests were served by remaining with the mother. Under the common law, fathers had an absolute proprietary right to the custody of his legitimate minor children. Later, the law shifted and began to favor the mother. The case of Johns v. Johns established this presumption in Mississippi law, stating that “In all cases where any child is of such tender age as to require the mother’s care for its physical welfare it should be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared for by other persons.” Johns v. Johns, 57 Miss. 530 (1879). Of course, this seems closely related to breastfeeding. For many years, courts in many states followed this as a rule instead of a factor in custody.

Later, the tender years presumption came under scrutiny from courts around the United States. Some of the concern from courts came from the supposed discrimination against fathers in child custody cases based solely on their sex. The Mississippi Supreme Court recognized the decline in other state courts’ consideration of the tender years doctrine, noting that although the doctrine should not be disregarded, that other factors should be considered as well. These factors were outlined in the case of Albright v. Albright. In that case, the Court noted that while the age of the child was an important factor in the decision of the child’s custody, that it wasn’t rational to base that decision solely on age. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). Later in the opinion, the Court laid out the factors that should be considered in a child custody case, and those are the factors used to this day.

Our office often receives calls from people who are simply ill-informed about the decision-making of courts in child custody actions. Due to this, our office feels that people deserve to know what courts actually use to make that huge decision. Following this blog post, we will be publishing a new post about each of the factors considered when hearing the case from each party that will change that child’s life for good. If you or someone you know has a question about the Albright factors, or you’ve simply always heard that the child goes with the mother, call the Law Office of Matthew Poole. Our office has the knowledge of these factors and their application to answer any question you may have. Thank you, and please continue to read the rest of our Albright factor series that will be published over the coming weeks.

Minimums and Maximums in a Child Custody Case

Thursday, January 4th, 2018

First of all, our office would like to wish you and your loved ones a happy New Year, and we hope your holiday season was a time of relaxation and fellowship with those you care about. The beginning of the year is naturally a busy time for our office, as we receive many calls from both existing and prospective clients reenergized from vacation to pursue their domestic case. When going through a child custody case, there is obviously a minimal and a maximum effort you can put forth. Our office feels that clients should know what these two efforts look like in order to know that their case is being handled with the correct level of diligence.

As you can probably guess, the minimum effort required in a child custody case is filing a petition for custody and a motion for temporary relief. Filing the complaint starts the process, and a temporary hearing is where the judge awards or denies relief and sets forth an order for the parties to abide by until that temporary order is replaced by a more permanent one after the case has been fully heard. Sometimes, this is all effort required, as the parties may find it easy to obey that court order and see no reason to go back to court. However, this is the exception and not the rule. Putting forth full effort in a child custody case requires diving into the discovery process with both feet forward. This starts with the issuance of interrogatories, requests for production of documents, and the noticing of depositions.

Interrogatories are questions about the subject matter of the case that the other side has 30 days to answer in writing. These questions often relate to witnesses, employment of the responder, and explanation of claims found in pleadings. Interrogatories lay the groundwork for a child custody case, and so issuing them is a step in the right direction of pursuing a custody case. Listing witnesses is especially important, because if you do not list a potential witness, that person cannot testify at trial.

Discovery also includes requests for production of documents. The documents sought in this phase of discovery will provide the bulk of the evidence used at trial. These requests often asked for are financial documents such as bank and credit card statements, utility bills to show expenses, and tax returns. Many clients often express reluctance in producing these documents, however an important part of a child custody case is showing that you are able to financially provide for that child. Like witnesses, requesting and disclosing proper documents is very important, because you will waive your right to use them at trial if you do not.

Another helpful discovery option available to you is the well-known tool of a deposition, which is a scheduled interview with the other side in the presence of a court reporter. The advantage of conducting a deposition is twofold. First, it helps your attorney gauge the other side’s reaction to a question in real time, as the other side has no time to prepare an answer as in written discovery. Second, it helps to nail the other side down to a narrative of their case. That story must either be adhered to or later contradicted, which can call into question that person’s credibility.

As with many things in life, in a child custody case you can either put forth the minimum effort required or go beyond that. It may be that filing a petition and a temporary order works out for you and gets you the relief you seek. However, life is messy, and cases as volatile as child custody will most likely require more effort. Engaging in discovery and applying pressure to the other side to match your effort is the best way to come out ahead in a child custody case. If you have questions about what should be done in your child custody case, call the Law Office of Matthew Poole. Our office has the knowledge and experience to give you a complete and honest answer to any domestic law question you may have.

Winning and Losing a Custody Case

Friday, December 29th, 2017

The smallest events can have a large significance on the outcome of a situation. A custody lawsuit is no different, as the testimony of one witness or the smallest behavior by a party can be the deciding factor in who gets custody of a child. Our office has had many cases hinge on a seemingly insignificant occurrence or detail. Our office wants our current and future clients to know the impact that things can have on their custody hearing, and what they can do to influence the outcome.

Custody cases are a naturally volatile process, and when you introduce the emotions and concerns that these cases raise, they become even more so. One part that may be hard on the parties is a temporary visitation and custody order that the court puts in place until a trial on the case is heard. Having contact with the other person for exchange of a minor child for visitation can be a tough thing for people to go through, as many former romantic partners harbor some sort of ill will toward each other. Mississippi Courts have held that interference in a parent’s visitation schedule may amount to a material change in circumstances in extreme cases. Ash v. Ash, 622 So.2d 1264, (Miss. 1993). Though it may be difficult, the best thing is to adhere to the court’s order as closely as possible. Court orders are not suggestions, and keeping in line with that order will only help your case.

Another common thing we see in our office is disparagement of one parent by the other. Mississippi courts have held held that, if extreme enough, parental alienation or disparagement can amount to a material change in circumstances that can be enough to award custody to the non-offending parent. Potter v. Greene, 973 So.2d 291, 293 (Miss. Ct. App. 2008). It is natural to want to make your case to both the Court and your child, however that energy is better spent showing the child why they should live with you, and not just why they shouldn’t live with their other parent. These remarks can be very damaging to the relationship between the child and the other parent, as well as to the child themselves.

There is simply no way around it: custody lawsuits are tough. They combine they already stressful process of a lawsuit with decisions that will impact a family’s life for the foreseeable future. Although both parties to these cases care about the welfare of the child, too often their disdain for each other shines brighter than that concern. Our advice is to be careful of your conduct during a custody lawsuit. This is simple advice that when combined with the highly emotional nature of these cases can become difficult to keep in perspective. The other side is just as invested as you are, and if they believe reporting your behavior to the court will help their case, then they will. If you have questions about what to do outside of the courtroom in your custody case, call the Law Office of Matthew S. Poole, and we will help you in any way we can.

Questions for Your Attorney? Ask Them!

Thursday, December 21st, 2017

A lawsuit can be a confusing process for someone who has never been involved in one. They involve a language totally different than the everyday vocabulary of most people. Attorneys usually expect questions from clients because of the large amounts of questions they themselves had at the outset of their career. Divorce lawsuits are especially stressful, as they delve deep into some of the most well-guarded areas of a person’s life. Knowing what questions to ask your attorney can help very much in cutting that stress down, and to help you make sure your case is in good hands. Here are some examples of questions you should be discussing with your attorney.

Question #1: Have you issued discovery, and what did that discovery request?

Discovery is the part of the lawsuit where attorneys send requests for information to the opposing side to be answered. This often involves interrogatories, which are questions about the case to be answered, and requests for production of documents that may be used as evidence at trial. Discovery is an extremely important part of a lawsuit, as it gives a party the time to possibly object to some requests and to carefully build their case. Asking about the issuance and substance of discovery is a way for you to make sure that the attorney you hired is taking the right steps to build your case.

Question #2: What was included in the pleading?

Pleadings are how you ask the court for the relief you want, and therefore should be done with care and should include every remedy possible. For example, there are twelve grounds for divorce in Mississippi. Asking questions about those grounds can help your attorney know what grounds you may have, which will therefore help in crafting the best pleading possible for your case. It’s your story, so help your attorney tell it.

Question #3: What witnesses should I call to help my case?

The answer to this question from an attorney will most likely be “it depends.” Witnesses may testify to things they have personally seen or heard as well as things told to them. You know better than anyone the people in your life who may be able to help present your case, and your attorney’s past experience may help in discovering other potential witnesses as well. One witness’s testimony can be a huge difference-maker in a domestic case.

Question #4: What documentary evidence should I produce?

One question our office receives from clients almost without exception is “What do you need from me?” This often depends on what the other side asks you to produce. In domestic litigation, common documents requested involve finances and contact between a party and their spouse or child. Your attorney should know what document requests you can object to and which ones you will most likely need to produce to the opposing side. These documents will be the foundation of your case, and you should ask your attorney their plan for building that foundation.

Question #5: What things specific to my case can we ask the court to order?

Every situation in domestic litigation is different, as the experiences, wants and needs of different families intersect in each case. You should be asking your attorney what you could possibly ask the court to order that helps you in your situation. The attorney’s role in this is twofold: the attorney should have a basic idea of what the court will or won’t order while also offering a less emotional presence making the request. When a decision affects your family, you want to make sure it is the right one.

Your attorney’s role in your lawsuit is to help you navigate the rules and procedures of a lawsuit, and asking questions can help you give your attorney all the help they need in building your case, as well as making sure your attorney is properly representing you. Lawyers expect those questions, so ask them! Many lawyers will either know the answer, or admit that they don’t and will find you the answer. In lawsuits, the right questions can be the difference between a good result or a bad one. If you have questions about your domestic case, call the Law Office of Matthew S. Poole. We will be glad to help you in any way possible.

The New Tax Bill: What Does It Mean?

Tuesday, December 12th, 2017

The Republican Party’s new tax bill that is currently in the works will have an effect on Americans and the amount of money they take home.Taxes are a necessary evil that Americans are all too familiar with. Taxes pay for roads, schools and medical expenses for many people. They are also a constant reminder of having a smaller paycheck. The Republican Party’s new tax bill that is currently in the works will have an effect on Americans and the amount of money they take home. The size of this effect is to be determined, but this tax plan is something that married couples who are considering divorce should be aware of.

As is being heavily reported in today’s news, the House and Senate Republicans have both passed a version of this tax bill, and will confer in the coming days to agree on a final version. And while the impact on corporations is likely to receive more news coverage, the bill is being touted by the GOP as a plan to allow the average working-class American to bring home more money after taxes. Many Mississippians fall into this category, so the tax bill will have a significant effect on residents of our state.

Of course, a tax bill as majorly different as the one that is currently being voted on could have major implications on married couples, and therefore on divorced couples. There is talk of some deductions increasing, namely the standard deduction and child tax credit. This could impact familial decisions regarding custody of the children more than taxes have before, so that is something for parties to keep in mind when discussing child custody.

Although none of the proposed tax provisions are set in stone, whatever version of the plan that is introduced is sure to have an effect on the finances of Mississippians, and therefore an impact on their decision making. The most important thing about receiving help is asking. Taxes are not something that the everyday person (or many attorneys) knows a great deal about, and therefore there is nothing wrong with seeking advice regarding how this new tax plan may impact your family. Knowledge is one of the most powerful weapons you can possess, especially when it involves your family’s finances. If you have a question about tax implications in your divorce, call the Law Office of Matthew S. Poole, and we will be glad to give any advice we can about this impact.

The 8.05 Financial Declaration: Pen and Sword

Monday, December 4th, 2017

Change in life is inevitable, and these changes can often lead to large legal implications. Modifications of child support are no different. People change jobs, lose jobs, make more money and make less money. When these things happen, modifications of child support obligations are often one of the first things people consider. That obligation cannot be changed without an order doing so from the court that established the original decree. A helpful tool in this process is the 8.05 Financial Declaration, named for the Uniform Chancery Rule that requires it. While rather simple, this form can be the difference between a win and a loss in court.

The 8.05 is straightforward enough. It lists out the party’s income, assets, liabilities, and monthly expenses. The assets that must be listed include vehicles, guns, TVs, lawnmowers, and even furniture. Other things listed are mortgages and loans (in today’s world, often student loans). Clients are often concerned at how much financial information they are being asked to reveal, however when a party is requesting a modification of child support, full disclosure of finances is extremely important. The 8.05 is the requesting party’s way of showing the court their finances in a clear and concise way, and by swearing that the figures are accurate, the party is gaining the court’s trust that their modification request is being made in good faith.

As stated in previous posts, modification of a child support obligation requires a showing of a material change in circumstances of the father, the mother, or the minor child. This can be for any number of reasons, none of which really matter without an adequate showing of proof. This is why the 8.05 is so important. When filled out correctly, this document provides hard numbers for the court to look at to aid in their decision. The 8.05 also provides support to your attorney for any more abstract arguments they may use to plead your case. The pen is mightier than the sword, but an accurate financial declaration can act as both in a child support modification case.

Clients often have many questions when filling out an 8.05, and with the extensive information that is requested in the document, those questions are usually not a surprise. When help is needed, attorneys are glad to extend that to their clients, as they should be. A full and honest financial disclosure can be your best friend during a child support modification lawsuit. While the 8.05 is simple on its face, it should not be completed in a rush, as it is an extremely sharp sword to be used in your favor. If you or someone you know is seeking a modification of a child support obligation, call the Law Office of Matthew S. Poole. Our office has the experience to guide you through this difficult process, and emphasizes the little things that may turn out to be an important element in the outcome.

How Long Does a Mississippi Divorce Really Take?

Friday, December 1st, 2017

One of the more common questions about divorce in Mississippi is a totally understandable one: how long does it take? Clients are often surprised at how long their cases last, especially when in their minds it is clear that divorce will only benefit everyone involved. The answer to the question of length of a divorce case in this state is often the classic lawyer reply of “it depends.” This is an honest answer, as the length of a divorce can be fast or slow depending on many different things, and a major part of the process is the client’s proper understanding of the fickle nature of time in a divorce case.

As we have talked about elsewhere on our website, there are two ways to get a divorce in the Magnolia State. One is an irreconcilable differences divorce, sometimes referred to as a “no-fault” or “agreed to” divorce. In an irreconcilable differences divorce, much of the timetable for the process is the 60-day waiting period required after the filing of the complaint. After that period, assuming that the parties still agree with the terms of the split, the final judgment need only be signed by a chancellor of competent jurisdiction to be final.

The other way to get divorced in Mississippi is through a lawsuit, which has a much more volatile timeline than an irreconcilable differences divorce. Lawsuits involve filing pleadings, serving process on parties, and getting discovery requests out, and that’s just to get started! After the suit is initiated, it is likely that several court appearances will be needed to properly address the claims. These hearings take place for a number of reasons such as obtaining temporary relief, compelling documents that were properly requested but not produced, or asking for a continuance. Once you combine these hearings with crowded court dockets, the timetable for a divorce can be a total mystery, even to experienced legal professionals.

The process of a lawsuit is unfamiliar territory for many clients. Ideally, every stage of a divorce would occur without incident and on time, and divorces would be faster and easier to obtain than they are. However, much like life and marriage, divorce is a complicated issue with many variables at play. Combining two parties, the lawyers, the court system, the schedules of everyone involved, and possible mishaps during the lawsuit makes a natural cocktail for a wait that seems like forever. In a time where people desire concrete answers to questions, there simply is not one with the amount of time a divorce lawsuit takes.

Almost without exception, divorces are expensive, stressful, and, above all, time-consuming. When you add the client’s desire to get a divorce and be done with the experience, the process becomes even more of these things. Our office believes that clients should know the dedication and time that a divorce may require, so that they do not feel like they are in the middle of the ocean without land in sight. This is of course not the answer that many seek, but we firmly believe that in situations like divorce that honesty is truly the best policy. If you are in need of help through a divorce, please call the Law Office of Matthew S. Poole to schedule a consultation.

Defending a Modification Lawsuit

Wednesday, November 22nd, 2017

Along with stubbing your toe and trips to the dentist, being sued is one of the more unpleasant experiences someone can encounter. Being sued for a modification of child support, visitation or custody is no different. An alleged change in circumstances often pries into two of the most private areas of a person’s life: their home and bank account. When defending a modification lawsuit, it is important to know what the other side must show, and what you can do to combat that evidence.

As mentioned in our previous posts, to be awarded a custody modification, the requesting party must meet a three-part test. There must be a material change in circumstances in the custodial home that occurred since the original decree, that material change must adversely affect the child, and a modification must be in the best interests of the child. The analysis for a modification of support is very similar: one may be awarded if there has been a substantial or material change in the circumstances of the father, the mother, or the child or children.

When a person is sued for modification of child custody, often there is some sort of abusive or neglectful behavior alleged to show the material change. In these cases, a guardian ad litem (GAL) is appointed to represent the child’s interests in the lawsuit, which can include a home study of the child’s living environment. This part of the process literally invites the legal system into your home, which is one of the personal areas of life. If you are the parent defending a custody modification, the best way to interact with a GAL is to show that your home is a suitable environment for your child. That means keeping your home clean, having ample food in the house, and, depending on the season, working heat and air. If there is some question as to your relationship with your child, show the GAL that the claim has either been exaggerated or that you are honestly working to improve that relationship. The GAL’s opinion is a large factor in the outcome.

Another common modification lawsuit is one that seeks to increase or decrease a person’s child support obligation. This arises when there is a belief that the obligor either has more or less income than when the agreement or order was entered. In these cases, one of the things that seems to bother clients the most is the revealing of their financial information. As private as finances are, a necessary evil of a support modification lawsuit is the ability to study this information to determine if there has been a material change in circumstances. Just as that information can be used to support a modification, you can introduce evidence that shows that your obligation should remain the same (or even be lowered). This could be for a number of reasons, such as the minor child now attending private school or having some major need that was unforeseeable at the time the agreement or order was entered.

Being the defendant in a lawsuit is not a fun thing, but it also isn’t the end of the world. Defending a modification lawsuit is similar to defending others: poke holes in the other side’s argument. If a problem in your relationship with your child has been falsely alleged, discredit that story. If there is a problem with that relationship, show an effort to be improving it. If it is alleged that you make more money and can pay more child support, put on proof of why that is not the case. Mississippi courts know that parenting is difficult, and co-parenting even more so. Showing a court that the child’s best interests are served by your custody or that your support obligation is what you deserve to pay is how to successfully defend a modification lawsuit. It sounds simple, but like many legal situations it can be extremely difficult. If you have a question about a modification lawsuit you are facing, call the Law Office of Matthew S. Poole at 601-573-7429.

How Do You Know A Change Is Material?

Thursday, November 16th, 2017

Of the many different legal situations that our clients come to our office with, modifications of child custody are some of the more complicated and misunderstood. Obviously, the custody of a child can only be changed by a court of competent jurisdiction, and the party requesting a modification has certain evidence that it must show to the court to win their case. A change in custody can be a very drastic measure for a child, and courts rightfully take this burden of proof seriously. Mississippians deserve to know what the state’s courts will likely consider a material change and what will not be enough to win a modification suit.

To be awarded a modification of a child’s custody, there must be a material change of circumstances in the custodial home since the original court order, that change must adversely affect the child, and the modification must be in the child’s best interests. This change must have been unforeseeable at the time of the original court order. If a material change is shown, the chancellor then determines whether that change is the one that adversely affects the child, and then analyzes the Albright factors (elsewhere on our website for your viewing) to make a decision on custody. Determining whether a change is “material” can be difficult, as even Black’s Law Dictionary merely defines “material” as “important” and “having influence or effect.”

In some cases, the materiality of the change is rather apparent. In Hall v. Hall, the father filed a petition for modification of child custody alleging, among other things, poor dental care rising to neglect and improper treatment after a dog bite. Hall v. Hall, 134 So.3d, 822, 824 (Miss. Ct. App. 2014). Testimony showed that one child’s teeth were rotten and black despite the father carrying dental insurance on the children, and that the mother failed to properly treat a child for a dog bite and also failed to inform the father about the bite. The chancellor, while acknowledging that accidents happen, considered the mother’s failures regarding the dog bite to be a material change in circumstances that adversely affected the child. The Mississippi Court of Appeals found no error on the chancellor’s part, and upheld the decision.

Other times, a change may be significant, but not material. In Giannaris v. Giannaris, the trial court awarded a modification in custody to the father after he argued that his relocation to California for work, the mother’s refusal to communicate with him, and the mother’s animosity toward the father’s new wife amounted to a material change in circumstance. Giannaris v. Giannaris, 960 So.2d 462 (Miss. Ct. App. 2007). The Mississippi Court of Appeals reversed, reasoning that since the Court had never found the relocation of a custodial parent to constitute a material change, that the relocation of a non-custodial parent did not either. This is just one instance in Mississippi case law where a change that many parents may see as material was determined to not be by the court.

Child custody cases are a fascinating blend of law and drama, as the wants and needs of many parties intersect, and often collide. These cases are also complex, with many pitfalls that may not seem obvious at first glance. Our office often speaks with clients that wish to pursue a modification who are surprised at the amount of evidence they need to show the court in order to win that case. Custody cases are long, expensive and stressful, and Mississippians deserve to know what they are signing up for when they decide to file a lawsuit for a modification. If you believe a material change in your child’s living situation is worthy of pursuing, call the Law Office of Matthew S. Poole. Our office is experienced in these matters, and believes that you deserve to know your realistic chances of being awarded a modification of child custody.