Posts Tagged ‘Rankin County Mississippi’

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.

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.

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.

Why Is My No-Fault Divorce So Difficult?

Wednesday, December 21st, 2016

Many people in the state of Mississippi, as in other areas of the country, seek to finalize and dissolve their marriage under what is commonly termed a no-fault divorce, also known as irreconcilable differences divorce in legal terms. No-fault divorces offer a variety of benefits for a prospective client, including that they are less expensive and less stressful than going through all of the arguing and fighting that accompany fault-based divorces and the lawsuits that are necessary in order to obtain a fault-based divorce.

As we’ve discussed many times on this website, and as is known by the majority of the legal community, fault divorces require the filing of a traditional lawsuit against your spouse. Many people wonder “why is it that my no fault divorce seems to be so difficult?” In short, no-fault divorce really has nothing to do with whether or not one of the parties or both have committed wrongdoing during the course of the marriage. No-fault divorces exist only when both parties have a clear agreement as to all of the issues involved in the divorce. When the parties have a child or children, own property, or have established separate living arrangements will complicate matters. No-fault divorces become less and less likely when more issues are involved. It is usually our recommendation that in a scenario where both the husband and the wife own little or no property, a no-fault divorce is easily attainable and should be pursued.

It is important, however, to note that in instances where there is not a firm agreement on all issues, a no-fault divorce is not an option. If the payment of attorney’s fees, alimony, whether or not one party wishes to stay in the house with the objection of the other, the visitation schedule of the children, or the possession and payment of automobiles or expenses related to any property owned by the couple is not agreed to, fault divorce is needed.

I’ve practiced domestic law for in excess of thirteen years, and have realized that there are several scenarios where the parties are very close to an agreement; however there are a few sticking points that have precluded them from reaching some final resolution to the dissolving of their marriage. Always remember that it is cost effective to agree on terms of divorce, but this is more easily said than done.

My general recommendation would be that if you are close to an agreement but have not yet obtained one with your spouse, make a short list of the issues that you do agree on prior to contacting an attorney. If you are able to make a list of the things that you do agree on and have very few things left over that could be resolved with a minimal amount of effort, you are on the path to a no-fault divorce. If the filing of a lawsuit against your partner is necessary, you will spend a significant amount of money that can go toward a better use, such as the support of your minor children or the sustenance of your daily living expenses. It is likely that you will need to contact an attorney at some point in order to get some advice about whether or not your divorce is in fact a no-fault or irreconcilable differences matter. If you are able to make some accommodation with your spouse in terms of resolving the major issues, it seems that likely that you will be able to obtain a no-fault divorce with minor adjustments to any initial draft of your agreement with your spouse. Don’t try to win every battle, just win the ones that matter most.

If you are seeking advice as to whether or not a no-fault, or “I.D.” divorce is attainable in your current scenario, we’re best equipped to provide you with assistance in making that determination and advising you as to the best path moving forward. Please feel free to call us for a no-cost telephonic consultation any time at 601-573-7429.
Law Office of Matthew Poole.