Posts Tagged ‘youth court’

Free Custody Lawyers to be Legally Mandated Soon? Time Will Tell

Thursday, October 11th, 2018

Interestingly, government has been increasingly involved in not only health care, but in matters normally centered in private markets such as law and legal rights. After the nationalization of healthcare, is it possible that the federal government will step into the legal realm and pay for an attorney when fundamental rights (like the right to be a parent) are involved? What evidence is there that we are heading in that direction? I would suggest that we are already taking baby steps toward a higher level of government fiscal involvement in domestic law. Here is a synopsis of my thoughts on point.

Law 101 makes clear that indigent criminal defendants have the right to free counsel if they are faced with penalty of a minimum of one year of incarceration. Indigency is defined by local rules but is largely derived from the precept of ability to pay an attorney, even if income is substantial. In what I would call a “quasi-criminal” area or domestic law, the government of the State of Mississippi provides a no-cost lawyer for those charged with abuse and/or neglect of a minor in their care during youth court proceedings. Interestingly, this dynamic is not entirely askew from a criminal scenario wherein the government both prosecutes and defends an indigent criminal defendant.

This recent development of providing a parent advocate to an indigent charged with abuse/neglect in youth court seems to signify a shift toward government-provided representation in matters that involve what would be deemed fundamental rights, such as the right to be a parent. Other fundamental rights would include those contained in the first 10 amendments to the U.S. Constitution (also known as the bill of rights), as well as rights which flow from the due process provisions included in the 14th Amendment to the U.S. Constitution.

The youth court parent advocacy program and the provision for free representation in these matters begs another question altogether; why do we not provide a free attorney for a person who is alleged to have abused/neglected in a chancery court proceeding? Why the distinction just because of the forum? I must admit, there is no logical answer that I can fathom.

Shifting gears somewhat, I have also asked myself and my colleagues why we do not provide an indigent contempt defendant (usually someone far behind on support or alimony, or both) with free counsel. These defendants are nearly always thrown into jail until the entire delinquency is erased. Is this scenario not tantamount to the provisions in the criminal context allowing for the appointment of a no-cost public defender? It seems to me that this presents a distinction without any real difference. The lines are certainly blurry at best.

Without being too lucid about my underlying thoughts, it is very clear that we have set up some arbitrary, even capricious standards as to who gets a free attorney when, why, and how. We have taken some steps away from requiring litigants to follow the “American Rule” (yes it really is called that) wherein people must pay for their own attorneys, as opposed to the “English Rule” wherein the loser pays all legal costs. It may not happen during my career, but I expect that in the near future, the government will provide no-cost lawyers in matters that involve fundamental rights and even those such as contempt where incarceration is a real possibility.

Matthew Poole is a Jackson, Mississippi family lawyer with 15 years of litigation experience. He has managed over 1,200 domestic matters since 2004.

Corporal Punishment vs. Child Abuse: A Thin Line

Wednesday, August 1st, 2018

Can your child be taken away because of a simple spanking? When I was elementary school at a public institution in Rankin County, Mississippi, I had the misfortune of enduring the school principal’s penchant for enforcing rules by use of a very large paddle, equipped with golf-ball sized holes in order to increase the velocity of each collision. In the early 1990’s, it was standard fare to expect a good old-fashioned whipping from school administration for playground roughhousing or any other number of youthful misdeeds. Boy, how times have changed.

In today’s world of political correctness and fear of legal liability, it seems that those days are long gone, and will likely never return. Parents have often asked our office whether or not a Youth Court or Chancery Court has the authority to take their children from their physical custody wherein there has been significant corporal punishment. Gone are the days of schools bruising the rear-end of a miscreant child (usually boys, alas).

Desoto County, Mississippi recently dealt with an appeal revolving around the question of distinguishing between reasonable discipline versus child abuse, and the line is very thin and broadly within the discretion of the trial court in civil matters. In this particular instance, the appellate court had to consider the sufficiency of evidence utilized by the trial court in removing four children from their father’s custody. At hand was a simple query, at least at first glance.

The appellate court first, and a matter of proper judicial due course, considered the bare language of the applicable Mississippi statute, section 43-21-105(m). In pertinent part, said statute provides that an abused child is one “whose parent….has caused or allowed to be caused, upon the child… emotional abuse, mental injury, non-accidental physical injury or other maltreatment”. Wow, talk about a broad definition, allowing wide discretion for the judge. However, the statute on point also states that “physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section”. Thanks for the semi-clarification, right?

It seems to me that the question of whether or not corporal punish ment of a child is violative of Mississippi law comes down to good old-fashioned common sense. While the criminal statutes regarding abuse of minors are relatively easy to interpret, the civil law remains open to broad interpretation. It is my hunch that any physical punishment that is accompanied by bruising or other visible signature will likely run afoul of the statute on point, but the margin for interpretation is razor-thin. Foremost, always remember that the court will have wide leeway in drawing the line between abuse and reasonable corporal punishment. No two judges are the same and may see the same thing differently. Reasonable minds may, and will often, disagree.

If you are dealing with allegations of abuse or neglect and need guidance and effective legal counsel, we will gladly be of assistance. Always trust your better judgment and recognize that any child punishment of a child must not be done out of anger. In the words of the American author and Unitarian minister Robert Fulgham, “All I Really Need to Know I Learned in Kindergarten”. Well said.

Matthew Poole is a Jackson, Mississippi family lawyer focused on case evaluation and domestic conflict management. He was admitted to the Mississippi Bar in July, 2004.