Posts Tagged ‘modify’

To Move or Not to Move; The Million-Dollar Question

Wednesday, July 4th, 2018

Our office frequently receives questions from both clients and curious would-be custody litigants as to whether moving from Mississippi will adversely impact their custody case and the corresponding rights they have to custody of their children. As expected, there is no simple answer to complex problems that life often presents parents and child custodians. However, a brief review of the applicable law does shed much-needed light into the darkness that accompanies ignorance of Mississippi custody law.

One can refer to the phenomenon as “home court advantage” or “home state preference”, but at the end of the day, the label is not what defines impact on parents’ and childrens’ lives. When a parent moves outside of Mississippi, the million-dollar question is always whether that move will trigger a potential modification of custody of the child/children. Our analysis and estimation of legal ramifications of moving must begin with the few things we can know with certainty. I will begin by stating with zero equivocation that I have recently seen a dramatic increase in litigation wherein the custodial parent moves far away from Mississippi.

The well-settled standard for modification of physical custody of a minor child (or multiple children) is relatively straightforward on its face: when custody has been awarded to one parent (by a court of competent jurisdiction) modification will be allowed ONLY upon a showing of:

1. A material change of circumstance—to be distinguished from a mere change which is not evocative of the well being of the children involved.

2. The material change in circumstance must demonstratively adversely affect the welfare of the child/children.

3. That a change in custody must be in the best interests of the child/children. {Polk v. Polk, 589 So.2d 123 (Miss. 1991), Pace v. Owens, 511 So. 2d 489 (Miss 1987)}. In Pace, the Supreme Court mandated that Chancellors make specific findings of fact in support of any decision to modify physical custody of children. All three prongs above must be addressed with specificity in the official court record.

It is notable that the standard for modification of custodial rights is applied in a different manner wherein the parents have joint physical custody and one parent makes a unilateral decision to leave Mississippi’s jurisdiction. The burden of the remaining parent is thereby reduced and there is no longer a requirement that proof demonstrate an adverse affect on the children, thereby prong #2 above would be null and void under these circumstances. McKree v. McKree, 486 So. 2d (Miss Ct. App. 1998).

So the answer to our query is well settled? Not so fast. It appears to myself and my clerk, the Honorable Kenneth Davis, Esq., that Chancellors across our great state have significant leeway and remarkable discretion in making determinations as to whether the “trigger” of modification of custody has been met, thus allowing a parent remaining in our state to initiate a well-founded claim for custody modification. Can the move of a custodial parent meet the threshold burden bestowed upon a non-custodial parent to achieve modification child custody? The best answer is probably, but not certainly. Most important is to recall that the POLESTAR (most important) consideration for any Chancellor is what is best for a child {Albight v. Albright, 437 So. 2d 1003. (Miss. 1983)}. See also Miss Code Ann. §93-5-24 (1972, as amended). The totality of circumstances will dictate the outcome in the vast majority of domestic litigation. It is reasonable and understandable that litigants want clarity and desire certainty. Finality is incredibly valuable. However, would-be litigants that are able to appreciate the big picture and viewpoint of Chancellors (who are the “super-guardian” of all children in their respective jurisdictions) and the subjective elements are most often successful in navigating treacherous child-custody matters.

I have 14 years of experience in domestic litigation and can say without shame that clear answers are often elusive. There is a best path forward in any family issue that you are facing, and my staff and I are dedicated to fight to vindicate your custodial rights. While there may be no simple answer, the path forward is always based in love for your children and a deep desire to impact their well-being in a meaningful and permanent way. It can be done. Where there is a will, THERE IS A WAY.

Matthew Poole is a Jackson, Mississippi domestic relations attorney with 14 years of determined focus in family law and domestic litigation with an emphasis on case evaluation and analysis.

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.