Posts Tagged ‘Modification’

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.

Child Custody Modification: What Does It Take?

Monday, October 2nd, 2017

Child custody arrangements are almost never easy to deal with, legally or emotionally. They become increasingly complex when one parent decides they deserve more time with the child. Modifications of child custody are long, stressful and expensive. You can probably imagine why, as the living arrangements of a child have a large impact on their development, and therefore courts prefer to leave no stone unturned in deciding on the best situation. Unfortunately, many times a parent is not granted custody because the court has some reservation about that parent’s ability to raise a child. The flip side of that coin is that people can change, sometimes for the better. When a parent who has lost custody improves their situation in some way, it may be natural to believe they are entitled to a modification of child custody. While this is certainly a factor, there are others at play in the court’s decision.

Proving a positive change in the non-custodial parent’s life can often be the easy part of a modification case. In order for child custody to be modified, the non-custodial parent must prove there has been a substantial change in the circumstances affecting the child, the change has adversely affected the child’s welfare, and that a change in custody is in the best interests of the child. Johnson v. Gray, 859 So.2d 1006, 1013 (Miss. 2003). Improvement in the condition of the non-custodial parent does not justify making a change. Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss. 1996).

This is where child custody modifications become the complicated cases they can be. The non-custodial parent could have very well improved an area of their life that the court felt was a concern, but if there has been no adverse change in the custodial parent, a modification of custody will probably not be successful. Therefore, the burden of proof for a non-custodial parent in a child modification case is twofold. The non-custodial parent must show that something has changed with the other parent that has negatively affected the child while also proving that a change in custody over to them serves the best interests of the child. This is quite a high burden to meet, which adds into the stress and expense of these kinds of cases.

Choosing which parent gets more time watching a child grow up is not a fun process, and it can be a difficult thing for parents to hear. Our office believes that child custody should never be dealt with lightly, and that Mississippians deserve to know their options going into a modification case. If you believe you are entitled to a modification of your custody arrangement, call the Law Office of Matthew S. Poole. We have the knowledge of the law regarding child custody modifications to make you feel confident in our legal services, and we also have a great passion for helping children and parents be together as much as possible. Call the Law Office of Matthew S. Poole at 601-573-7429.

What does “custody” really mean?

Wednesday, July 19th, 2017

You’ve probably heard it before: “I have full custody of my kids” or “I have legal custody” or “He has physical custody of the children” or “We have joint custody of our child.” All those mixing of terms can make child custody confusing, but it shouldn’t be. Child custody in Mississippi is awarded in two ways – “legally” and “physically” – and can be combined in a number of ways to fit the best interest of the child.

Legal custody” pertains to the rights bestowed upon a parent to make decisions of health, education and welfare of the child. “Physical custody” describes the time a child resides with a parent. When parents use “joint custody” to describe their custody arrangements then the court has granted both parents shared rights of custody either physically or legally or both. Generally, parents with “joint physical custody” equally share physical custody of their child and it is exercised every other week. “Joint legal custody” means the parents share in the significant (i.e., not whether the child needs a band-aid) health, education and welfare decision making of the child, regardless of which parent has physical custody of the child at the time decisions are made. The right to share all of the child’s official records is presumed and paramount. Parents might share joint legal custody while one parent has physical custody or parents could share joint physical custody while one parent has legal custody. It should be noted that good communication between parents is paramount to the court’s consideration of whether joint legal custody is in the best interest of the child. Even if the court determines that both parents are equally capable of making legal decisions in the best interest of the child, poor communication between the parents typically results in the Chancellor arbitrarily designating one parent as the sole legal guardian of the child.

Each child custody case is different as evidenced by the many combinations of legal and physical custody, however all custody cases are decided using the same polestar determinant: What is in the best of interest of the Child?

If you or someone you love has questions about their child custody issues then schedule a consultation with the Attorney Matthew S. Poole. Matthew has over a decade of experience representing parents in divorces where child custody is the central issue and in child custody modifications.

Separate Maintenance/Alimony Considered by Court of Appeals

Monday, August 29th, 2016

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


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

Matthew Poole (601) 573-7429.

Alternating Physical Custody of a Young Child

Sunday, August 21st, 2016

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

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

Matthew Poole (601) 573-7429.

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

Sunday, May 15th, 2016

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

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

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

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

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

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

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

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