Posts Tagged ‘Yazoo’

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.

Communication and Consideration: No-Fault Divorce Revisited

Wednesday, August 15th, 2018

Everyone wants a cheap and stress-free divorce when they are ready to move on. Who can blame them when their marital circumstances are beyond repair? No one wants the agony and cost of fighting in a court of law over assets, child custody, or the myriad other factors associated with divorce litigation. Unfortunately, no-fault divorce isn’t easily achieved without some degree of tension in most cases. Again, there aren’t easy answers to complex issues, but the more that can be disputed likely will be, and costs often soar as a result. So what is the best solution?

As in marriage, divorce presents many challenges that lack a simple solution, particularly when children are involved. I cannot speak directly to the exact price other local lawyers charge for irreconcilable differences divorces (or “I.D.” as they are often referred to), but I can say that they will always be far less expensive than fault-based divorce, which often requires multiple open-court hearings and dozens of hours of attorney fees. The stress and turmoil of a legal battle are also not easy to avoid on some level, at least.

Even at a relatively modest rate of, let’s say $225 per hour and an optimistic time for resolution of, for instance 35 hours, the math gets scary quickly (225 x 35 = $7,875). When adding in court costs and other fees such as service of process and investigative fees, it is easy to see why the national average cost of divorce in 2017 was $15,500. We presented the relevant statistics in detail in our April 28, 2018 blog article and reference to a Nolo Legal study evaluating divorce costs. I highly recommend reading that in combination with this posting.

When recognizing that no-fault/irreconcilable difference divorce is usually less than $1,200, it is hard not to see the appeal. However, the appeal and low-cost of I.D. divorce has one danger that is often ignored by clients: If you don’t have 1. Communication, and 2. Consideration for fairness to both parties involved, you are most likely wasting your time and hard-earned money. It’s absolutely paramount that clients understand that Mississippi is not a “true no-fault state” at this time. In other words, you either both must agree to all terms of divorce, such as child custody and visitation, insurance issues, asset division, even alimony in some cases–or you must litigate. And therein lies the rub.

Our neighbor to the west, Louisiana, permits that a no-fault divorce be granted after 365 days of separation whether there is an agreement to divorce or not. While this seems an easy solution to a complex problem, it isn’t quite as appealing when we realize that issues such as child custody and financial matters still will require contested hearings unless the parties agree. Often this means that the cost won’t be any less than in Mississippi.

In 14 years of practicing domestic law, I can say that, despite making very clear to my clients that they may waste their money on attempting I.D. divorce, approximately one-third of them did exactly that because of overly-optimistic enthusiasm. I don’t blame any one of them one iota for trying the cheap route to divorce, but it is not without its downfalls. There are myriad factors that can derail what should be a simple divorce. It’s very easy to throw your money away because of optimism. As a former associate of mine used to say, “Haste makes waste”.

So, what is my advice? First of all, cooler heads usually prevail. The level of emotion and the amount one spends on domestic legal fees are strongly correlated. Therefore, 1. Make a checklist of all issues that require attention before contacting an attorney. 2. Have a calm, frank discussion with your spouse, and 3. Give your spouse appropriate consideration on all of the issues that need to be addressed–remember, you both start with equal marital rights. If you can do these three simple things, you will likely have saved yourself and your children a lot of emotional turmoil and cold, hard cash.

If we can give you assistance in determining the best path toward the dissolution of your marriage, please feel free to give us a call. I have 14 years of focused domestic law experience– we do not practice in any other area– and take great pride in helping find my clients the easiest and least expensive way out of tough spots. Even if a no-fault divorce is not an option, where there is a will, there is always a way.

Matthew Poole is a Jackson, Mississippi family law attorney who specializes in domestic case evaluation and marital conflict resolution.

Through the Eyes of a Child; Divorce Life Lessons

Friday, July 20th, 2018

It is all too common that we forget the smallest things in life, sometimes to our detriment. More often than not, forgetting the simple is counter-productive. Going through a divorce, it is usually the best path forward to revert to the basic that you know with certainty. Attempting to preserve your marriage requires the same thinking.

When Kareem Abdul-Jabbar, arguably the best basketball player, if not athlete of all time, was inducted into the Hall of Fame, he spoke true words of wisdom. When asked by a nationally renowned reporter, “What made you so successful?”, the great said simply, “I just try to do the little things right. To most people it seems like small stuff, but it often makes the difference between winning and losing”. Well said.

We’ve written so many articles about the best approach to get a fair and just result when going through a divorce. We decided it would be refreshing to write on a related topic; a topic intended to assist people in preserving their marriage. This may have lifelong implications for children and is so important to our society. And yes, we are aware of the irony of the article as written by a divorce lawyer.

It is absolutely fundamental that we must work to recognize the concept that Robert Fulgham advanced in his famous book, “All I Really Need to Know I Learned in Kindergarten”. It is necessary to our happiness as well as the well-being of those we care about that we remember the lessons learned as children, and some of them are so simple that they are easily forgotten; be nice to others, don’t hit people, remember to pick up after yourself, work hard, pay attention, and the list goes on as such. These are such simple concepts that in our everyday lives their importance often gets lost in the clutter. That is a true tragedy.

So many adults could bring happiness to not only themselves but their spouse, who is a reflection of themself, and also most importantly to their children by simply remembering the lessons we learned so many years ago.

My office regularly receives calls from prospective divorcees seeking information as to how to obtain a divorce. It is amazing to me that so many people will have failed to even have a discussion with their spouse about whether or not a divorce is a good idea for either spouse. It is my firm belief that this world would be such a better place if we considered others’ feelings, our childrens’ well-being, and the happiness of the one we married as a paramount concern. They are too easily forgotten and brushed aside.

If I may leave you with a simple piece of modest wisdom, ask yourself if you have fulfilled your marital vows, if you have considered your children’s future thoroughly before even contemplating severing the bonds you made in matrimony. Ask yourself through the eyes of a child. If you have truly exhausted all possibilities and are still unhappy in your marriage, you may have very well earned your way out of a bad place. If my office can help you receive justice and fairness as a last resort in the severance of your marriage, give us a call.

Matthew Poole is a Jackson, Mississippi family attorney who is focused on the preservation of fairness and justice and the best interests of children. He was admitted to practice in 2004.

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.