Posts Tagged ‘Support’

The “Other Factor” That Can Sink Your Custody Claim: Alienating Child Affection

Monday, August 20th, 2018

I was recently in trial in the northern part of our great state and had a unique case wherein I had the good fortune of securing custody of a four-year-old little boy for my client, the father. The case was one of the most difficult I have ever handled in 14 years- both legally and emotionally. It was a roller-coaster of facts and subjectivity of the law, to say the least. The opposing attorney was highly competent; a seasoned prosecutor from Lee County- one of the best I have ever faced.

My client was guilty of some degree of minor violence; domestic abuse which was relatively easy to prove, and yet he obtained custody of his son. How can this happen, you may ask, and rightfully so. It seems the long odds stacked against my client were impossible to overcome. This case lasted 23 months in total. The victory was by a razor-thin margin. I was on hanging on every word from the court and counsel opposite until the very end.

Any custody attorney will harp on the factors a court will consider in determining the best interests in a child’s physical placement. Mom no longer has a clear and plain advantage, due in large part to the equal protection clause of the U.S. Constitution. The “tender years” doctrine has been significantly eroded, to the point that only breastfeeding an infant child confers some advantage to mom. Dad now starts on equal footing in a custody battle for all practical purposes. As a single father with sole legal and physical custody of my son, I have reaped the benefit of the recent change in law.

Beginning January 10, 2018 our office began a series of articles outlining all of the Albright factors- the defined matters for a court to consider in a custody dispute. We did not write only one article on the only non-specific Albright factor which is the most subjective; the one that is most easily described as a “catch-all”. Up for grabs and potentially up-ending any custody case are “other relevant factors”. What could these possibly be?

In all of the custody experience I have, never did I imagine that I could win a custody case based on these mysterious and elusive “other factors” when my client lost more than half of the specified Albright issues. Not in a million years did I believe that some undefined, highly subjective issue would win the day. And then, exactly that occured. I am still somewhat surprised by the result– pleasantly surprised, that is. The ugly head of parental alienation was the “other factor” that swayed the balance to my client’s victory.

Parental alienation of a child has always been regarded as paramount to a Mississippi court- even more so lately. That said, I have increasingly witnessed first-hand that if the alienating parent’s behavior is severe, courts will likely deem it to be tantamount to child abuse, negating what would be an award of physical custody to the opposing parent. To be frank, a decade ago this “other factor” would have been considered as just another Albright issue. Today, it can upend an entire case. That is music to my ears. Times have certainly changed.

Alienation comes in many shapes and forms. Most often it is in the nature of passive-aggressive parental alienation; making it difficult to get a hold of a child by phone, making subtle comments about the other parent’s morals and character, or even stoking a child’s concern about whether their other parent cares about them. Other times parental alienation takes on an overtly aggressive form.

The case that prompted me to write this article involved mom, who had a bi-racial son, instructing him to call his father and his family a “bunch of n___ers”. And it was all caught on tape. It didn’t happen only once, this four-year-old little guy, half African American, had made the infamous N-word a part of his vocabulary, all thanks to mom. It was horrible to hear on tape, heartbreaking at the very least.

The focus of this article is not necessarily parental alienation, it is a forewarning to parents who engage in extreme behaviors to the psychological and emotional detriment of their child. Be it excessive shaming of a child, prolonged absence, or just plain verbal cruelty, beware of the “other factors”–they can flat sink what would have otherwise been a custody victory. Chancery courts have broad discretion in child custody matters, and anything you say-to your child or anyone involved-can and will be held against you.

My last piece of advice is relatively simple. Mother Theresa once said, “Not all of us can do great things. But we can do small things with great heart”. I couldn’t have said it better. When navigating the treacherous waters of child-custody litigation, do not forget that children need love, happiness, and innocence of adult issues as much as they need food and water. It is easy to lose sight of this fact when angry at an ex-lover. Keep sight of what matters most: protecting your child from turmoil and shielding them from despair.

If you are involved in a child custody case that requires a robust knowledge base and formidable experience, I will gladly attempt to point you in the right direction. Be forewarned- simple answers to complex issues, particularly those involving child custody, are elusive and require a high level of competency. If you need just that, contact us anytime.

Matthew Poole is a single parent of an eight year-old boy, Lucas. He is well-acclimated to the various challenges that face single parents, both professionally and personally. His practice has been focused on child custody matters for 14 years as a parental advocate.

Expectation vs. Reality: My Lessons in Practicing Domestic Law

Friday, July 27th, 2018

My name is Kenneth Davis, and I have been working for Matthew for close to two years total now. When I first began working in domestic law, I fell victim to much of the overly optimistic enthusiasm that so many young lawyers encounter. Coming from a very close family that has never needed intervention to solve conflicts between us, I was rather naïve to just how petty people can be in litigation over family matters. Family is the most important thing in this world, and sadly that often gets lost in the maze that is a domestic lawsuit. I say this not to downplay people’s emotions or investments in their goals for their family, but rather to be up front with people on the things I see on a day-to-day basis.

Much like professional golf, a lawyer-client relationship is much more of a team than most people think. The client does not only sign a petition and then sit back and let the lawyer do the rest. Clients are their biggest advocate, and they know more about their case than anyone else. The lawyer’s job is to trigger the client’s mind for information they can use to prove their case, and to present that proof to the judge in an effective way. Like a golfer and their caddy, a client and their attorney must be on the same page every step of the way to achieve the best result possible.

When I tell people I practice domestic law, what follows is usually a form of “that must be dramatic.” It certainly is, as family law impacts people’s everyday lives and their relationships with their children. Most of the stories I tell are the really ridiculous ones, such as fighting over the most minor things. I then realized that while many litigants mean well with their lawsuit, sometimes they are mostly fueled by spite. That is most unfortunate, because often the client’s reasonable goals take a back seat to that anger toward the other party. That can add unnecessary baggage and stress to an already volatile situation, and it can put strain on the attorney-client relationship at the expense of the result.

Domestic law can be a challenging and stressful arena in which to practice, although for the most part it is satisfying. It brings me great pride to know that these clients have trusted me with their familial relationships, which are sacrosanct. As with any area of law, proper discipline and teamwork make a world of difference in the outcome of a domestic lawsuit. The most important thing in a domestic case is to never lose sight of what you are wanting to achieve. It can be easy to get lost in the trees and lose sight of the forest. This is truly the best advice I can give to anyone I meet, whether it be a litigant, another attorney, or anyone with a goal they want to achieve.

Finances In A Divorce

Monday, May 7th, 2018

A person’s financial situation has more influence over day-to-day life than almost any other aspect. Finances influence our ability to enjoy certain luxuries that life brings. Money is also a very private subject. Almost universally, it is considered rude to inquire about someone’s finances in a social setting, and also viewed as arrogant to brag about money. Therefore, when a prospective client comes to our office seeking to initiate or defend a domestic lawsuit, they are often surprised at the level of financial disclosure that comes with that proceeding.

Finances indicate more than personal wealth. They are a good indicator of a person’s ability to hold down a job, ably manage their finances, and to provide security for their families. Directing your finances in a sensible way shows the court a certain level of maturity. Money is hard to earn, and easy to spend. In domestic litigation, especially when children are involved, courts take into consideration how the litigants have been able to soundly oversee their earnings.

A parent’s finances are a factor in child custody cases, and the financial situation of the parents is even included among the Albright factors that chancellors use in making a child custody determination. You can view an earlier post on our website about that factor as well as the other Albright factors through our website’s blog search function. This does not mean that chancellors will simply look at which parent makes the most money and award custody to that parent. It is but one factor to show that the person seeking custody is able to provide for the child as they need and deserve.

Income also plays a large part in the awarding of alimony or separate maintenance. If one spouse in a divorce makes much more money and the other party needs some financial assistance, courts will take that into consideration when deciding whether or not to avoid alimony.

One of the most important documents in domestic litigation is the 8.05 Financial Declaration, named for the Uniform Chancery Rule that requires certain financial disclosures to be made. This document lists a person’s income, assets, and liabilities. Having an ex-spouse be able to see that information can make clients uncomfortable, but they are important declarations to make in these cases. Chancery courts, which handle domestic matters, are courts of equity. This means that chancery courts attempt to resolve disputes in a way that is fair to both litigants and that avoids unjustly enriching one party over the other. These rules regarding financial disclosures can be a friend to those who follow them, and a foe to those who don’t.

Our office understands the uneasiness that comes with giving out financial information, but we also have the experience to know that following these rules can only help the court look favorably upon a party. For a person involved in domestic litigation, being able to show the capability to control their finances will go a long way in achieving whatever goal that person wishes to reach. If you or someone you know has a question about the financial reporting involved in a lawsuit, call the Law Office of Matthew S. Poole. We will be happy to lend our knowledge to give you a response that is the truth, and to help you navigate any domestic legal issue you may have.

Matthew Poole is a Jackson, Mississippi domestic attorney who specializes in family litigation. He was admitted to practice in 2004.

The 8.05 Financial Declaration: Pen and Sword

Monday, December 4th, 2017

Change in life is inevitable, and these changes can often lead to large legal implications. Modifications of child support are no different. People change jobs, lose jobs, make more money and make less money. When these things happen, modifications of child support obligations are often one of the first things people consider. That obligation cannot be changed without an order doing so from the court that established the original decree. A helpful tool in this process is the 8.05 Financial Declaration, named for the Uniform Chancery Rule that requires it. While rather simple, this form can be the difference between a win and a loss in court.

The 8.05 is straightforward enough. It lists out the party’s income, assets, liabilities, and monthly expenses. The assets that must be listed include vehicles, guns, TVs, lawnmowers, and even furniture. Other things listed are mortgages and loans (in today’s world, often student loans). Clients are often concerned at how much financial information they are being asked to reveal, however when a party is requesting a modification of child support, full disclosure of finances is extremely important. The 8.05 is the requesting party’s way of showing the court their finances in a clear and concise way, and by swearing that the figures are accurate, the party is gaining the court’s trust that their modification request is being made in good faith.

As stated in previous posts, modification of a child support obligation requires a showing of a material change in circumstances of the father, the mother, or the minor child. This can be for any number of reasons, none of which really matter without an adequate showing of proof. This is why the 8.05 is so important. When filled out correctly, this document provides hard numbers for the court to look at to aid in their decision. The 8.05 also provides support to your attorney for any more abstract arguments they may use to plead your case. The pen is mightier than the sword, but an accurate financial declaration can act as both in a child support modification case.

Clients often have many questions when filling out an 8.05, and with the extensive information that is requested in the document, those questions are usually not a surprise. When help is needed, attorneys are glad to extend that to their clients, as they should be. A full and honest financial disclosure can be your best friend during a child support modification lawsuit. While the 8.05 is simple on its face, it should not be completed in a rush, as it is an extremely sharp sword to be used in your favor. If you or someone you know is seeking a modification of a child support obligation, call the Law Office of Matthew S. Poole. Our office has the experience to guide you through this difficult process, and emphasizes the little things that may turn out to be an important element in the outcome.

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.

What Visitation Rights do Grandparents Have?

Sunday, November 12th, 2017

Grandparents often hold a special and significant place in the lives of their grandchildren as a symbol of love, support, and, as many of us know, discipline. Grandparents also often step into the role of a parent for a child for any number of reasons. This special relationship is highly respected in Mississippi, and the laws relating to the visitation rights of grandparents are no exception. Courts in Mississippi understand the dynamic at play with grandparents and their grandchildren, and if the preservation of that relationship is in the child’s best interest, then that relationship should not be disturbed.

Mississippi law allows a grandparent to petition for visitation rights after the death or termination of parental rights of one of the minor child’s parents. A grandparent may also do so for other reasons, and the court will award those rights if the grandparent has shown a viable relationship with the minor child, that a parent has unreasonably denied the visitation, and that the grandparent’s visitation rights are in the best interests of the child.
Obviously, the phrase “viable relationship” is quite vague, and the statute goes on to define that as a level of financial support of the minor child by the grandparent for more than 6 months, the grandparent having had frequent visitation, including overnight, for at least a year, or the grandparents caring for the minor child for a significant period with the parent absent from the home (including military duty or incarceration).

The wording of the statute gives grandparents many different ways to prove a viable relationship worthy of having visitation rights awarded. Previous overnight visitation is one of the more powerful showings of a viable relationship, as a grandparent being allowed to keep a child overnight demonstrates a large amount of trust and respect between the parent and grandparent. One caveat that grandparents need to be aware of regarding overnight visitation is the presence of the word “including.” A strict reading of this makes it seem as though a grandparent who has not had overnight visitation has no claim, like if the grandparent lives next door to the child and has had frequent visitation, but never overnight. A court’s interpretation and an attorney’s argument of the Legislature’s intent behind this phrasing may both be the difference in a case like this.

Still, a viable relationship between a grandparent and a grandchild can be a tough thing to show in a court of law, as those relationships often go beyond hard proof. Testimony of the grandchild may be the key factor in many of these cases, and many grandchildren are likely too young to have their testimony hold much weight in court. These are just a few of the gray areas that these cases can find themselves in. While cases involving the visitation rights of grandparents can be stressful, expensive and time-consuming, the Law Office of Matthew S. Poole is extremely well-equipped to handle your case with professionalism and personal service. If you believe your visitation rights as a grandparent are not being properly respected and would like to fight for those rights, call our office at 601-573-7429 to schedule a consultation.

Constructive Desertion: When You Just Know

Monday, September 11th, 2017

This is the way the world ends. Not with a bang but a whimper.” T.S. Eliot’s words from his poem “The Hollow Men” can unfortunately describe the end to many marriages. Mississippi law states that desertion of a marriage may act as grounds for a divorce, but the statutory desertion period is one year. When that time period has not been met but there are signs the marriage is ending, courts look to constructive desertion to entitle a party to a divorce. Constructive desertion has been defined by Mississippi courts as conduct that renders the continuance of the marriage unendurable or dangerous to life, health or safety. Benson v. Benson, 608 So.2d 709 (Miss. 1992).

In Benson, the trial court did not grant the parties a divorce on the grounds of cruel and inhuman treatment. The husband alleged that the wife had committed cruel and inhuman treatment by habitual ill-founded accusations, threats and malicious sarcasm, insults and verbal abuse. The trial court found that the martial problems were mostly based on the incompatibility of the parties, which is not a ground for divorce in Mississippi. The Court of Appeals found that the trial court had correctly denied a divorce on cruel and inhuman treatment, but remanded the case for the ground of constructive desertion.

As you can tell by that standard used by the courts, constructive desertion can take many forms. What makes a marriage “unendurable” is different for different people. Mississippi courts have held that inexcusable, long-continued refusal of sexual relations warrants a divorce on the ground of constructive desertion. Tedford v. Tedford, 856 So.2d 753 (2003). As silly as that may sound to some people, this could signal that two spouses have basically become roommates, and the marriage has therefore been deserted.

This conduct may also stem from monetary support issues. If a husband has the means and ability to support his wife, and negligently or willfully does not, then the wife will be justified in severing the marital relationship and leaving the home. If the husband still refuses to support her, then he will be guilty of constructive desertion even though the wife left the house. Deen v. Deen, 856 So.2d 736 (Miss. Ct. App. 2003).

As dramatic as divorces often are, sometimes their end comes with a whimper and not a bang. Sometimes, you just know a marriage has no chance of lasting. Constructive desertion is a ground that many spouses in Mississippi can use to leave a marriage that has not yet reached the statutory time requirement. If you or someone you know is in a marriage that meets the criteria of being unendurable for a reasonable person, or if the person’s life, health or safety is in danger, call the Law Office of Matthew S. Poole. Our office is experienced in courts throughout Mississippi with our full time and energy dedicated to domestic matters. This allows our office to know the nuances of the law, and to provide you with your best representation. Call the Law Office of Matthew S. Poole today at 601-573-7429.

Three Common Mistakes When Dealing with the Guardian Ad Litem Assigned to Your Mississippi Child Custody Case

Friday, November 18th, 2016

First of all, it’s important to understand the basic role of a guardian ad litem in a child custody matter (a.k.a. child custody lawsuit).  If a guardian ad litem has been appointed by a Mississippi Chancellor (often referred to as a Chancery Court Judge) to investigate facts that are relevant to your custody case and make a recommendation to the court as to what they believe is in the best interests of a child, there are three common mistakes that people can and will make that can adversely impact the result and report of the guardian ad litem.   It is important to know that guardian ad litem is a latin term for “guardian at law”.  These guardians are generally appointed by the court in order to perform a fact finding expedition and make a recommendation as to the placement of physical and legal custody of a minor child or children.  It is also crucial to note that the court does not have to follow the findings of the guardian ad litem, although deviations from the general recommendations of the guardian are rare and have to be supported by substantial evidence as presented to the court.

The most common mistakes we see in dealing with our client’s involvement with guardians ad litem are as follows; not sufficiently communicating with the guardian ad litem as to the issues that need to be investigated.  For instance, we have clients that have three or four (or sometimes half-a-dozen) issues that they wish to be investigated by the guardian ad litem, but they only communicate those to us—they expect all communication to go through their lawyer (which is not unreasonable, but impractical at best).  It is important that the client take an active role in speaking with the guardian in order to facilitate the investigation and keep costs down, and it is also important that the client be able to shine a light on all of the issues that they believe are relevant to the best interests of the minor child.  It is important to stay abreast of the guardian ad litem’s progress in their investigation and the various things (i.e. factual issues relevant to custody) that they are considering in making in a recommendation to the court.

It is also important, when possible, to communicate with the guardian ad litem in writing so that there will be a substantial, provable record as to the issues that you wish to be investigated.  It is crucial to know that the more issues and the more complex issues that exist, the guardian’s investigation will have to be more extensive and often this will require that you incur additional cost due to that additional work required in performing the investigation.  

Another very common mistake we see clients make is disparaging their spouse or ex to the guardian ad litem.  This is not well-founded, and we always advise against this ill-advised conduct.  Put simply, it does not cast the disparaging parent in a positive light.  If you have criticisms of your ex’s conduct as it relates to what is best for your child or children, then those issues need to be dealt with in a mature, rational way.

It is important though that the thrust of your argument doesn’t consist of disparaging or demeaning or name calling of your ex-spouse or your ex-girlfriend or ex-boyfriend.  The child’s parent deserves respect regardless of the behaviors that you complain of.  But be objective, and make sure your focus is on what is best for your child or children, not winning the moral high ground.   Courts and domestic attorneys are very familiar in dealing with situations where the motive is not the protection of the child or children, but moral vindication—feeling that you “won”.  The long and short of dealing with your custody matter is essentially taking the objective approach; don’t be angry, don’t  be upset, don’t be overly emotional, just lay the bare groundwork  for the issues that you believe are important that the guardian ad litem consider in making in making their custody recommendation to Chancery Court.  Trust their expertise.  

The next common mistake that we see is failing to have a clear educational plan or path for your minor child or children.  You have to be engaged with your minor child in order to demonstrate to the guardian ad litem that you are the parent that is more involved in facilitating that child’s education and will continue to do so in the future.  It is not necessarily important that you have a college plan for a five year old, however it is important to actively monitor your child’s progress and address issues and short- comings where you are able to make a positive impact and help the child improve in their educational  performance.  It is also crucial to consider having a plan in place for children above seventh grade for their ultimate placement in college and potential course of study.  It is not say that you must have their entire future planned out, but addressing your child’s strengths and weaknesses in the classroom bit-by- bit is important, and will show the guardian ad litem demonstrably that you are the parent with the best ability to effectuate your child’s best interest and goals.  Most importantly, it shows that you care.

If you have a question about this article or would like to share your thoughts, please feel free to contact us at The Law Office of Matthew Poole (601) 573-7429 or matthewspoole@gmail.com.  We are best equipped to assess your situation and give you some practical advice on steps you can take to increase your odds on gaining custody of your child or children.