Posts Tagged ‘judgment’

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.

Hindsight is 20/20: Lessons From an Attorney Divorcee’

Monday, July 3rd, 2017

I am currently an attorney in the state of Alabama and have known Matthew Poole since 2003 during our time with the Mississippi Attorney General’s Office. Following is a first hand experience that is significant when confronted with divorce.

The old saying “hindsight is 20/20” is certainly an overused cliché, but could not be more fitting to describe my experience with divorce.  I learned some difficult lessons over the course of what I describe as my “4 year divorce” and my goal is to provide you with a map to avoid the same mistakes I made. You may hear that no divorce is the same, but most divorcees face many of the same pitfalls.  If my open and honest discussion helps just one other dad avoid four years of trials and tribulations, then this blog will be a success. If one child benefits from the message about the importance of co-parenting, this is a pure success.

To paraphrase a wise saying, “you can’t know where you are going until you know where you have been.”  Four years of journaling my divorce provided me the unique opportunity to reflect on where I was emotionally at each step of my divorce.  My journal is a snapshot of my thought process at the very moments I made each mistake in my divorce and would certainly be the “knowing where I was” and having the opportunity to see it in hindsight gives me the clarity I need to “know where I am going.”

Wrong turns in divorce don’t start at the moment the divorce is finalized; not even close.  Vital decisions are made in the pre-divorce period that will carry long-lasting implications and results in newly divorced fathers facing nearly insurmountable odds of being the best dad they can be.  There comes a point in the pre-divorce process that the inevitability of divorce sets in.  For me, this crucial point came after months, or more realistically years, of efforts to keep my family together.  I was physically exhausted, emotionally drained, and filled with anxiety about the unknown.  That is when I made not just the first wrong turn, but THE wrong turn that set me on a path that took me fours years to begin to correct.  I have a name for it. I call it my moment of “white flag surrender.”

Waiving the proverbial white flag was my way of doing what I thought was best for my children.  Remember, if you are in unfamiliar territory and you are exhausted and desperate, you will not make the best decisions for your family.  I agreed to give my ex-wife everything and I mean everything.  My wife got the kids, house, condo, cars, bank accounts, and even family heirlooms.  I walked away with my clothes. I made the mistake of representing myself, and that is something even the finest lawyer should avoid.

My first wrong pre-divorce decision directly resulted in my starting my new life as a single dad unable to support my kids in the way they needed. If you have yet to hear your attorney or judge use the phrase “best interest of the child,” you soon will.  Every decision made during the entire pre-divorce and divorce processes should be made through the lens of what is in the best interest of your child.  That is to say, while contemplating decisions you face, you must ask first “what is in the best interest of the child?” Having two emotionally and financially secure parents is always in the best interest of your children, and by doing what I thought best. I wrecked myself financially and then emotionally, thus, leaving my children with less than 2 reliable parents.  

Navigating the divorce process was stressful, but by putting myself in a position of weakness (i.e. impatience) during my pre-divorce surrender, I fared much worse in the final divorce decree (more on that in later blog entries).  Every hasty decision (there were many!) I made was in the interests of receiving finality instead of with the realization that the court’s order would be in place barring monumental litigation.

Divorcee Life-lesson One:

Pre-divorce is not the time to throw in the towel to all of your ex’s desires and demands, even if you think this might be what is best for the kids.  Remember, two financially strong and emotionally stable parents are what is ultimately in the best interest of the kids. Pre-divorce is tough. The whole process is foreign to you.  You will be scared.  You will be emotionally drained.  You just want the pain and discomfort for everyone to end.  Believe me, I know.  But you will only make matters much worse for your kids, your ex and yourself if you do not position yourself to exit your marriage as financially secure as you can justly make it for yourself. If you resist the urge to surrender (and dang it is a strong urge), you will be a better single father, a better ex-husband, and ultimately, that is all that matter to your children.      

As you set out on your new journey as a single dad, you will need to prepare yourself for the stresses that await you throughout the divorce process. It is pivotal that you fight the urge to waive that white flag before you ever get started. Do not set out on this path alone and don’t be ashamed to ask someone to be a part of your support network. Use every tool you have to remain focused on the best interest of the kids while fighting that urge to throw in the towel. If you will heed this advice you can come out the other side of your divorce much better prepared to take care of your kids while avoiding the four-year journey I took down the wrong path filled with pitfalls disappointment and heartache.

If you are contemplating a divorce, whether it be high-asset based or the primary concern is that of your child’s well-being, The Law Office of Matthew Poole has the experience and expertise to assist you in making one of the most crucial decisions of your life. Don’t attempt going it alone, even if you are an attorney.

Consent Judgments in Child Custody

Monday, May 22nd, 2017

One common misconception about family law in the state of Mississippi is the way that agreements regarding child custody operate. In cases involving child custody, consent judgments may be entered into by parties to best create a custody arrangement for that child.

A consent judgment is a contract of the parties entered upon the records of a court of competent jurisdiction with its sanction and approval. That consent must be present when any order is entered, and the order is considered void if either party withdraws that consent before the judgment is entered. If a party believes that the consent judgment is invalid, they bear the burden of proof in showing that invalidity to the court. Consent judgments allow parents in Mississippi to work out a custody schedule for their child with a lower level of confrontation, stress, and money than in litigation.

We understand that often parties will be tempted to not involve the court system in child custody matters, often to avoid involving the minor child in a lengthy and stressful process. However, as appealing this may seem in the beginning, it is not a good practice to follow. If one party refuses the other party time with the child, there is no court order that a party can seek to have enforced. This is the largest reason that consent judgments should be considered from the outset of a child custody matter. It protects the rights of parents to spend time with their minor children, and it can ease the hardship on the minor child when one parent attempts to have them “pick sides.”

Children are not goods; they cannot be bartered for, and their custody should be taken seriously by all parties involved. Consent judgments in cases involving child custody are often the preferred route for everyone involved, and if done properly they can minimize the stress that these cases have on the parents, the lawyers, and most importantly, the child or children. If you or anyone you know has a question about judgments involving child custody, please contact the Law Office of Matthew S. Poole at 601-573-7429.