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The Holiday Season: Heartwarming or Heartbreaking?

Christmas

The end-of-year holidays are upon us – a time for food, time off work, and loved ones. The extra time spent with family and friends often enriches and strengthens relationships. Gift-giving and cooking family meals afford an opportunity to be selfless and to focus on others.

Unfortunately, not everybody’s holiday experience is positive.

Holiday gatherings often mean spending time with spouses, exes, in-laws, and others whose presence reignites former and current tensions. Going from one relative’s house to another in a short period of time can create a “pressure cooker” environment that widens cracks in already-strained family relationships. Some relationships simply don’t survive the season.

For family law attorneys, the last part of November and the month of December can be a strange time. Like an eerie calm before a storm, many couples with crumbling marriages try to will themselves to “make it through Christmas together.” Some are truly committed to repairing the relationship; others are consciously prolonging the inevitable.

Likewise, many parents struggle during the holidays with their custody arrangement. Tensions build with the other parent and tempers sometimes explode. In these cases, “Merry Christmas” turns into “I’ll see you in court!” In January, our office sees the aftermath, a swell of prospective clients.

To be sure, I’ve seen individuals act in ways they never would have if not for the holiday pressure. Arguments get more extreme and threats come into play. Sadly, in a lot of cases, law enforcement has to intervene.

When relationships can be mended and custody issues resolved without conflict, it’s nearly always the best option. But what if you know there’s no resolving the issues? What if there’s no saving the marriage? In these cases, tempers can run hot, and you may feel like you have to do something, anything, to make a change.

If you know that you may be headed for divorce or a custody case, here are some proactive steps you can take instead of losing your cool:

1. Start researching lawyers. The internet is a great resource, but so are friends and loved ones. Until you ask, you may not be aware that someone you know has had dealings with a particular attorney. Look for a lawyer who is competent, but also for a lawyer who shares your values and will understand your goals for your case.

2. Gather your information. Documentation is key in most divorce and custody cases. Start gathering tax returns, pay stubs, photographs, notes, and anything else that may relate to your case. I always tell my clients that I would rather have more documentation than I need than risk not having enough.

3. Think through your payment options. You know representation isn’t going to be free, so don’t wait until you’re at the consultation to think through what you can afford. Think about what money you can get together up front and what you can do in the long run. Some lawyers want all their fees up front, but others will work with you on a monthly payment plan.

4. Get a consultation. It’s vital to speak with a qualified family law attorney. Many lawyers offer free consultations during which they estimate costs and discuss the process and possible outcomes, giving you an idea of your options. Knowing what to expect often makes things easier, rather than letting your imagination conjure up your worst fears.

5. When in doubt, try to step back and take a breath. Family matters like divorce and child custody can make us feel like the world is literally crashing down. Keep in mind, though, that the actions you take today will almost certainly impact your future. Bad actions can be used against you, while planning can give you the advantage.

Which Parent Should Get Custody?

Child Custody Factors

The second in a series on child custody.

When meeting with new or prospective clients, I often hear the following phrase: “I’m clearly the better parent, so I know the judge will give me custody of my child.”

In Mississippi, chancery court judges are directed to make custody determinations based on the best interests of the child. In many ways, determining the “better parent” overlaps with determining the best interests of the child. But “better parent” and “best interests” are often difficult to define objectively. So how does a judge decide what’s in the best interest of a child when it comes to custody decisions?

To ensure more correct and consistent custody determinations, judges in Mississippi must base their decision on certain factors. These factors, called the Albright factors or the Albright test, are intended to provide a framework for evaluating the aspects of parenting and family life most likely to impact a child. In many custody determinations, judges are required to expressly list each factor and the judge’s assessment of that factor.

For each Albright factor, a judge weighs the facts and determines whether the factor favors the mother, the father, or neither parent. It is important to note that the Albright test is not a simple score where the highest number wins. A single factor could be more important than the rest – such as in the case of child abuse.

The Albright factors are listed below, along with a brief description of each:

1. Age, Health, and Gender of the Child: Based on the child’s age, health, and gender, which parent would be the better choice to serve as primary caretaker?

2. Continuity of Care: Which parent was the primary caretaker of the child prior to the start of the divorce, custody, or modification case?

3. Best Parenting Skills: Which parent is best equipped to handle clothing, feeding, disciplining, and supervising the child?

4. Willingness and Capacity of Parent: Which parent is most willing and able to serve as the primary caretaker of the child?

5. Employment Responsibilities of Parent: Is the parent employed? How would that employment and its responsibilities impact their ability to serve as primary caretaker of the child?

6. Age, Physical Health, and Mental Health of Parent: Is the parent healthy and capable of caring for the child?

7. Emotional Ties: How close is the emotional bond between the child and the parent?

8. Moral Fitness of Parent: How effectively does the parent encourage the child’s morality, both through example and direction?

9. Home, School, and Community Record of Child: How has the child performed, whether behaviorally or otherwise, in their activities inside and outside the home?

10. Preference of Child, if Child is Twelve or Older: Which parent would the child prefer to live with?

11. Stability of Home Environment of Parent: How stable is the parent’s home life? Do the residents of the home remain consistent, or are “new” partners/relatives/friends frequently living in the home? Has the parent moved residences frequently or been evicted?

12. Other Relevant Factors: Sometimes cases have unique factors that play a role in the custody determination.

The case that set out the Albright factors was determined in 1983, and since then the Mississippi Supreme Court and Court of Appeals have issued many rulings expanding upon and further interpreting each of the factors.

If you are facing a divorce, a child custody action, or a custody modification proceeding, it is very important to consult with a qualified family law attorney who knows the ins and outs of the Albright factors. Properly presenting evidence of these factors could make the difference in the outcome of your custody case.

 

 

The Language of Child Custody in Mississippi: An Introduction

The first in a series on child custody and visitation.Child Custody

Custody can come up as a contested issue in a divorce between married parents, or it can be a standalone case in the instance of unmarried parents. It can also be addressed in a paternity case or implemented as an addition to a child support case.

However custody comes up, it always comes with its own language. In order to “speak custody,” you need to know a few definitions.

What does “custody” mean? It all depends on the context.

You may hear someone say they have custody of a child, meaning that at that particular moment, the child is physically with them. This use of the word is correct in common parlance, but is not specific enough in legal settings.

Following are a few key terms in the language of child custody:

Physical Custody. In the context of a legal proceeding involving custody issues, physical custody relates to a parent’s legal rights regarding the physical presence of the child. In other words, physical custody means which parent(s) a child lives with.

Sole (or Primary) Physical Custody refers to a situation in which one parent (the “custodial parent”) is granted physical custody significantly more often than the other parent (the “non-custodial parent”). Sole Physical Custody by one parent generally means the other parent has the child only according to a limited schedule, called a visitation schedule.

Visitation for a non-custodial parent is spelled out in a schedule approved by the chancery court judge. The “default” visitation schedule in many Mississippi courts is called a Farese visitation schedule, and is usually comprised of visitation every other weekend for about 48 hours, alternating or splitting holiday time, and 2-4 weeks in the summer.

Visitation can be supervised or unsupervised. Most visitation is unsupervised, meaning the child and the non-custodial parent are not under any requirement to be monitored by a third-party. Supervised visitation requires third-party monitoring (often by a relative), and is generally reserved for instances where there is a concern for the child’s well-being while with the non-custodial parent.

Joint Physical Custody means that both parents share approximately equal time with the child. An example of joint physical custody is one parent having the child four days a week and the other parent having the child three days a week. Another example is one parent having the child for a week followed by the other parent having the child for a week.

Legal Custody. In the context of a legal proceeding involving custody issues, legal custody relates to a parent’s legal rights regarding the sharing of information about the child and decision-making related to the child.

Sole Legal Custody occurs when a court places the decision-making rights of a child solely in the hands of one parent.

Joint Legal Custody means that both parents are entitled to the child’s medical and educational information (such as doctor’s records or report cards), and that the parties are required to communicate with one another about major decisions in a child’s life concerning medical, educational, or community topics (such as where to attend school or what medical treatments to undertake). In the event of a disagreement over such decisions, the custodial parent’s choice generally trumps the non-custodial parent’s choice.

Anecdotally, the most common result of a custody dispute is for one parent to have sole physical custody while the other has visitation, with both parents sharing joint legal custody.

Custody also comes in other forms, such as temporary custody and emergency custody, which I will discuss in a later post.

Knowing the language of custody can help you understand and identify what you want from your custody situation. Because custody cases vary so significantly, it is very important to contact a qualified family law attorney about your case as early in the process as possible.

 

No-Fault Divorce - Basic Questions Answered

No-Fault Divorce

The first in a series on divorce basics.

Mississippi has two methods of obtaining a divorce: contested (fault-based) divorce and irreconcilable differences (“ID” or “no-fault”) divorce. This post is intended to give an overview of the no-fault divorce process. I’ll cover contested divorce and the specifics of each process in later posts.

 No-fault divorce in Mississippi requires both individuals to agree to the divorce. For most no-fault divorces, the process goes as follows:

1. The parties sign a petition for divorce called a “Joint Bill” and a Property Settlement Agreement (PSA), and both documents are filed at the courthouse.

2. A minimum of sixty days must pass after filing before a chancery court judge can finalize the divorce. At any point prior to the divorce being finalized, either party can withdraw their consent to the divorce and halt the proceedings.

3. Once a minimum of sixty days have passed after filing the Joint Bill and PSA, the chancery court judge can sign off on a document usually called a “Final Decree of Divorce,” at which point the divorce is final.

PSA

Arguably the most important document is the Property Settlement Agreement, which sets out how real estate, vehicles, personal property, alimony, money, and debts are to be divided. The PSA also spells out exactly how child support, custody, and visitation will be handled by the parties. When the divorce is finalized, the PSA is made a part of the final decree so that, if necessary, it can be enforced by the court later on.

Cost and DIY

One of the main benefits to a no-fault divorce versus a contested divorce is cost. Generally speaking, contested divorces cost significantly more than no-fault divorces. If you and your spouse can agree on terms, usually a single attorney can draw up the paperwork.

There are a number of do-it-yourself legal sites on the web these days. Some of them offer good quality forms and some don’t. It’s certainly possible to generate forms using one of these sites, sometimes for much less than hiring an attorney. However, if the forms have an issue, it’s often with the PSA. More often than not, the issue arises not from what’s in the PSA, but from what’s left out.

Issues with a PSA can arise years after the divorce, and can cost far more than the amount you may save with a do-it-yourself site. No doubt many divorcing couples never experience any problems, but for some, the realization that they cut one corner too many can come too late. Modifying errors in a PSA can be costly and, in some cases, impossible. It is incredibly important that your PSA spells out exactly what you and your spouse expect from each other

Special Situations

Not all divorces begin and end exclusively as no-fault or contested divorces. Sometimes a contested divorce is settled, with the parties agreeing to withdraw fault-based grounds and consenting to a no-fault divorce.

Also, while the usual procedure is to file a PSA that includes the parties’ agreement on the issues of property settlement, custody, and support, it is possible for a married couple to agree to a divorce and submit any issues on which they do not agree for the court to decide. In such a case, the chancery court judge would conduct a hearing on the topics upon which the parties cannot agree, and would make his or her own determinations about those issues. It is important to note that this type of divorce won’t always have the cost savings of other no-fault divorces, as the attorney(s) will have to prepare for and conduct a hearing in much the same way they would for a contested divorce.

Every Divorce is Different

If you’re considering a divorce, it is vital to consult with an attorney before you begin the process. It’s important to consider all the facts of your particular situation before starting down the path either to a no-fault or to a contested divorce.

NOTE: Nothing on this website is intended to create an attorney-client relationship and nothing posted constitutes legal advice. Use of this site does not create an attorney-client relationship with Hurdle Law Firm PLLC nor its attorneys. No information communicated through this website will be protected by either the attorney-client privilege or the work product doctrine. If you use this website to send a message, do not include any confidential, secret or otherwise sensitive information concerning any potential or actual legal matter in the message transmission. Such messages do not create an attorney-client relationship and confidential or secret information included in such emails are not privileged and can be subject to disclosure. An attorney-client relationship is only created after a conflict check and by a written representation agreement signed by you and an attorney of Hurdle Law Firm PLLC.

 

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