Posts Tagged ‘preference’

Mississippi Child Custody Considerations: Preference of the Child

Sunday, March 11th, 2018

Perhaps one of the more daunting and trying considerations for parents involved in a child custody dispute is the preference of the child. Parents contesting child custody are often nervous that their child’s preference will not be favorable to them because of a number of different reasons manipulating that child’s decision making. Sadly, this could even include the other parent’s influence. However, the preference of the child is but one of many considerations that chancellor’s weigh in their analysis of the Albright Factors to decide the best interests of the child.

By statute, the preference of the child will not be considered by a chancellor unless the child is 12 years old or older. After the sufficient age of 12, a child in a child custody case could be allowed by the court to express their preference as to which parent they would prefer to live with. A chancellor, however, is not required to honor the wishes of a child as to whom he/she would prefer to live with, but will only make that decision based on whether the best interests of the child is served by allowing them to express a preference.

This consideration is considered dismaying by some because of a parent’s ability to manipulate the feelings of a child in regards to the other parent. For example, there unfortunately are parents that will promise their children a later curfew, a new phone, or even a new car, just to manipulate the child into wanting to live with that parent. Although offering favors to their child may sway that child to their side momentarily, ultimately, a chancellor deciding the case will see that for what it is and take that into consideration when making his final decision.

Even though there are parents who attempt to essentially “bribe” their own children to make them want to live with them, a court will not make a decision based on the child’s preference if their preference is not in their best interest. It is understandable that this factor can cause a sense of uneasiness and worry in parents when dealing with a child custody dispute. Our office handles child custody disputes every day, and can help ease those worries. If you have any worries or concerns involving your custody disputes, or just have any questions at all involving your custody related issues, please contact our office. Thank you for following this series and please continue to follow along each week as we explore the Albright Factors.

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.

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.