Posts Tagged ‘parental rights’

Domestic Violence as a Bar to Custody/Visitation Rights – or Not?

Thursday, May 31st, 2018

According to the National Coalition Against Domestic Violence, there are approximately 10 million people physically abused by an intimate partner in the United States every year. Unfortunately, 1 in 15 children are exposed to this violence and 90% of these children personally witness the incidents. It is no secret that the effects of domestic violence extend far beyond physical injury to trigger mental illness, substance abuse, and even suicide. With this in mind, courts typically find that it is not in the best interest of a child to be placed in the physical custody of a parent who has a history of committing domestic violence.

A “history” of domestic violence includes not only a pattern of abusive behavior, but also any isolated incident that caused “serious bodily injury” to a partner or another family member. However, it is not impossible for people with this kind of past to get physical custody of their children. In fact, a court may find that parental custody would be in the best interest of the child even if both parents have a history of domestic violence. According to Mississippi Code § 93-5-24(9)(a)(iii), the court may consider the following factors when determining whether or not physical custody will be awarded to a parent with a history of domestic violence:

(1) Whether the perpetrator of family violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse or such other circumstances which affect the best interest of the child or children;

(2) Whether the perpetrator has successfully completed a batterer’s treatment program;

(3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate;

(4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate;

(5) If the perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and

(6) Whether the perpetrator of domestic violence has committed any further acts of domestic violence

If custody is not awarded to the parent with a history of domestic violence then visitation may be allowed instead. Generally, the court can mandate any condition that it deems necessary in order to ensure the safety of a child during visitations. Conditions may include, but are not limited to, supervision of the visitation, parent’s restraint from drug and alcohol use during and for twenty-four hours prior to the visitation, or prohibited overnight visitation with the parent.

Another rather interesting option the court has regarding visitations is to require payment of a bond for the return and safety of the child. In other words, the parent would pay a fee to take the child and then receive the money back once the child was returned without harm… Compared to the alternatives, this option often seems a bit out of place. For example, one may ask whether the safety and welfare of a child is really guaranteed by the leverage of a monetary payment. However controversial this option may seem, it is rarely used and is usually a last-resort measure. We must trust the chancellors of Mississippi to use the highest discretion to apply this option appropriately.

“Ne Exeat” (Latin for “do not leave”) security bonds are used to ensure the safe return of a child by preventing another party from leaving, or removing the child from, the jurisdiction of the court or state. Although Mississippi lacks a statutory provision for these bonds, they could still be required through the use of a chancellor’s broad equitable powers.

Ultimately, parents may still be granted physical custody or visitations with their children despite a history of domestic violence. If you or someone you know has a question about the custody or visitation rights of a parent with a history of domestic violence, please don’t hesitate to call us. The Law Office of Matthew S. Poole is highly experienced in these types of situations and we would be happy to help.

Written by Jessica Jasper, J.D. Candidate, Class of 2020, Mississippi College School of Law

Importance of a Father in the Home

Saturday, May 12th, 2018

Maintaining the family unit should be the number one goal of any mother and father. Even when going through a divorce, it is essential that both parents are just as involved in their child’s life as they possible can be. However, with divorce ever on the rise in the United States, an all too common consequence of parent’s separating can be an absence of the father in the home. This can mean a great deal of adversity for the children later on in life. Be it an increased risk of poverty or a higher chance of incarceration, living without a father puts a child’s life squarely at risk for all manner of difficulty.

Since 1960, the percentage of children living in two-parent homes has decreased dramatically from 88% down to 66%. This drop has been caused by many factors, but the most prevalent one is the rise in divorce. Across the nation, married couples are calling it quits and their children are stuck in the middle. Unfortunately, this increase in divorce has made some dads pack up permanently, leaving their ex-wife with the kids, and their kids without a father-figure. This can have an indescribable effect on the life of a child.

According to the Census Bureau, there are 24 million children in the United States, and one out of three of them live without their biological father in the home. Compared to children who live with both parents, these children are four times more likely to live in poverty, and two times more likely to drop out of high school. Combine these statistics with the poverty income level in the U.S. only being $12,140.00 a year, a child living in a single parent, fatherless home has to escape becoming another statistic just to overcome the odds already stacked against them.

Risks of poverty and lack of education aside, there is a darker and more horrifying concern of growing up without a father. One of the more striking statistics provided by the Census Bureau shows that 63% of youth suicides in the United States are performed by children of single-parent homes. This is an astonishing number. To put this data a different way, one of the only single identifying metrics that connects two thirds of all children from around the country that commit suicide is the fact that they are raised in a single-parent home. This alone shows the importance of why maintaining a two-parent household is integral in a child’s life.

Going through a divorce can be the toughest thing someone has to go through. Although most everyone would rather not split up their own family, it is often not that simple. When mom and dad cannot work it out, or even refuse to work it out, the child suffers. Custody battles can be the same way. When one parent refuses to let mom or dad be a part of their kid’s lives, it hurts the child most of all. If you want to be a part of their child’s life, but are struggling because of divorce, custody, or your spouse is refusing your rights as a parent, please do not hesitate to call us. The Law Office of Matthew S. Poole is well-seasoned to handle these types of situations and we would be happy to help.

Written by J. Tyler Cox, J.D., Class of 2018