Category Archives: Child Custody

It’s “ok” to LIE to your Children.

10/18/2012 BowTieLawyer 3 Comments

It never fails. One of the aggrieved parties to a divorce tells the dirty details to the child regarding the other parent. This is never appropriate or “ok.” Never. Never to a young child. What about when….? No. Never.

But that parent, with their righteous indignation tells me, or testifies, “I do NOT lie to my child?” My response? “Well, what about the Tooth Fairy?“

We lie to our children a lot. A LiveScience.com article stated it better, “Parents Lie to Children Surprisingly Often.” This article concluded that parent’s lie to protect their child and lie to preserve some semblance of innocence and childhood for their children. These are all good things.

The Tooth Fairy question gets that indignant parent every time. There is no good reason to spill the beans about the other parent’s misdeeds to the child. You should be telling them that “mommy” loves them very much. Not that she cares more about dancing on a pole with bikers than being a decent mom, even if it’s true. When the kids are older they will realize the truth and appreciate you all the more for allowing them to have a childhood and to love their other parent, even if the other parent did not deserve it.

It’s okay to lie to your children. Who says so? Me, a divorce attorney.

Disagree? Tell me why in comments or via email.

Matthew Thompson is a Child Custody Attorney in Mississippi and believes sometimes lying to your children is in their best interests.

Follow the blog:#BowTieLawyer Visit the website: #Thompson Law Firm You may also contact Matthew with your family law matter or question at (601) 850-8000 or Matthew@bowtielawyer.ms

Child Custody, Child Support, Modifications

Changing your Court Papers; Custody vs. Visitation

10/01/2012 BowTieLawyer 2 Comments

Modification is the process that is used to change a Court Order. We previously discussed how NOT to modify your papers here.

Below are the basics for the right way to modify your current Court Order. Child Custody, Visitation and Child Support are always modifiable. However, each has a separate standard. Each require that you prove something different…

1. Child Custody is the most difficult to modify. The non-custodial parent, must demonstrate 1) a material change in circumstances, 2) adverse to the child, 3) in the home of the custodial parent. In English, dad has to show that there has been a big change, harmful to the child and it was mom’s fault. It does not matter how much better dad is doing. It does not matter that he has a new job, making good money, and has remarried Mary Poppins. The Standard concerns what is going on in mom’s house.

A material change could be bad grades, serious behavior problems, serious problems with mom or serious problem with mom’s new beau. Now, once you show the bad change, harmful to the child, and it’s mom’s fault, dad wins, right? No. That provides the Court the authority to go back through the Albright factors for the Court to determine which parent is in the best interest of the child.

2. Child Support is modifiable upon a showing of 1) a material change in circumstances, unanticipated at the time of the Order and that either the 2) paying parent’s income has increased (or a non-voluntary decrease) in a meaningful capacity or that the 3) child’s reasonable needs and expenses have increased, or both an increase in income and needs. It should be noted that Child Support is statutory, as noted here, and the paying parent’s responsibility to pay does not continue to increase, just because his/her income does.

3. Visitation has the lowest standard to modify. In order to modify visitation all one needs to do is demonstrate that the current schedule is not working. This can be shown by showing that a party moved over several hours away making every other weekend unworkable or by showing that due to the child’s schedule, or a parent’s work schedule the visitation plan is not working. This one is easier to pursue, but the outcome is not always predictable, so have a plan for what schedule will work if you are seeking to change it because of distance or a work schedule issue.

*Certain other aspects of Order’s can/may be modifiable as well; ie; alimony, other child benefits.

Matthew Thompson is a Mississippi Child Custody Attorney and reminds you to follow your papers.

Follow the blog: BowTieLawyer You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Child Custody, Child Support, Modifications

Modifying Your Divorce Without the Court, Think Again.

09/28/2012 BowTieLawyer 2 Comments

This is an all too common occurrence. Mom and Dad get divorced, rock along and a few years down the road they decide to change their deal. They are getting along, at least better than before the divorce, and both are burned from their past experiences with attorneys and attorney fees. So…they decide we can handle this like mature adults. Dad wants a custody tweak, Mom needs a support adjustment – bam-shabang– let’s just do it.

Mom and Dad agree that the Order will be “modified.” They switch to a week-on, week-off custody arrangement. The kids are older, it works. Dad starts paying support directly for the benefit of the kids. He pays for the child’s car and insurance, and picks up health insurance which was previously mom’s responsibility. Dad does not pay mom directly. It’s about the same money, probably. What could go wrong? A lot of things!

Court Orders may only be modified by other Court Orders. Once an Order is issued and in place the parties are bound to follow it. This is so ironclad that the Court has a mechanism in place to enforce its Orders that can result in the breaching party having to pay fines and/or go to jail. This process is called Contempt. If you are not following the Order in your case, you are subject to a contempt petition being filed by the other party.

But if we agreed what’s the big deal? The deal is that Agreement is not worth the paper its written on if it is not approved by the Judge. At some point in the future, and it never fails, Mom and Dad have a falling out, again. Mom goes to attorney and tells him that Dad has not paid child support in two years. Mom sues Dad for Contempt for all of the “back” support and then “un-agrees” to the custody change and goes back to an every other weekend schedule for visitation. Dad counter sues for a custody modification seeking custody now due to mom’s change and contempt over the health insurance issue. The only sure thing now is that each has considerable contempt for the other and the Court is left to sort it out.**

Dad scrambles to get his “proof” that he paid the car and insurance, but that is not what was ordered. Mom tries to justify her position on the visitation retread because that is what the papers said, as if her hands are tied now and the “papers” know best. Had they done an Agreed Order and had it approved by the Court, they could have accomplished the same thing and not left the door open for future problems of having the old Order used against them. Both would have been protected and still had the same “teeth” in enforcing their Agreement it would have just been enforcement of their new Agreement. Now both have risk and have conducted, at least, actionable non-compliance with the Court order.

If you modify your Order/Agreement do it in writing, signed and approved by the Court. It’s the only way to guaranty that the Agreement is enforceable and for protection from being subject to Contempt for not doing what was in the prior Order.

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Child Custody, Child Support, Opinion

Dads Have Rights Too!

09/26/2012 BowTieLawyer 6 Comments

(I recently spoke to a group of fathers, and a few others, about a Father’s Rights in a custody action. I also had a request, this week, from an online fan about blogging specifically about Father’s Rights. I agreed to do it, but these “Rights” apply to parents regardless of gender.)

Dads Have Rights Too!

One of the most frustrating things in my practice is a father who says he wants rights to his children but is unwilling to put his money where his mouth is, figuratively and literally. Those dads want the “fun” parts of the job and to spend time with the children, but do not want to do the “work” and do not want to pay child support or think whatever they are paying is enough. So first things first, pay your support, pay it on time and pay it every time. And when the need arises pay for something extra. With the support issue out of the way, in an initial custody determination, be it a divorce situation or a paternity/custody matter, mom and dad are on a level playing field. Yes, equal. Equal at least as far as the facts support that statement.

In a divorce situation or a paternity/custody matter, mom and dad are on a level playing field. Yes, equal. Equal at least as far as the facts support that statement.

The Court must conduct what is called an Albright Analysis (blogged about earlier, click here). This analysis looks at a number of factors including, the continuity of care* or who has been doing what for the child up to that point where you find yourself in Court, and what is in the best interest of the child. (*in initial determinations this is the biggest factor, barring extraordinary circumstances).

If you are dad and 1) have been doing the bulk of the child care, 2) are a good, 3) safe, and 4) active parent there is no genuine threat to you in a custody battle because of your gender. However, if mom has been doing the 1) day to day care, 2) taking to and from school and3) the doctor and 4) soccer and 5) everything else, and you, as dad, spend time with the children on the weekends when you are not at work – just because mom gets custody does not mean the system was fixed and the mom always wins.

Now the law does recognize a term called the tender years doctrine – which states a very young child should be with the mother, unless there is a compelling reason why the child should not, ie: mom is unfit- meaning a danger to the child. Sometimes if your child is very young and mom has the controls you just have to bide your time. The tender years ends between 2-3 years of age, with no definite, exact age.

But dads can and do get custody if the facts are there to support that outcome.

The other big peeve is dads that do not exercise their visitation. There is common acceptance out there that standard visitation is every other weekend (EOW), Friday to Sunday, Wednesday afternoons when you don’t have the weekend, alternating major holidays and 4-5 weeks in the summer. And some dad’s don’t take advantage of it. I call “standard visitation” a misnomer because there is technically no such thing as “standard visitation,” though that is in fact what is quite often ordered and/or agreed to.

But there is also a trend, over the last several years, where dads are getting more time, if they want it and meet a few other requirements. If dad has been an involved dad, wants more time and the parties live in the same community that EOW can be expanded to Friday to Monday or Thursday to Monday of every other weekend. Research shows that dad being responsible for a school night results in the kids doing better. It also makes dad responsible for time that is not all “Fun” time AND it puts most of the pick-up and drop-offs at school, which means less of a chance of an altercation with mom. Dads can be more than every other weekend dads if they are willing to do it.

Go to their ballgames, school programs, and dance recitals. Know who their teachers are and doctors. Don’t rely on mom for all of that and be mad when she does not give it to you. Get it yourself. How? Go to the school. Call the Dr.’s office. Mississippi law provides a means for you to have the right to those records. MCA Section. 93-5-26. (click here).

Finally, don’t be intimidated by mom and her lawyer. Hire a lawyer. (Don’t say you can’t afford one, you cannot afford to NOT have an attorney). Mom and her attorney will not run you over unless your conduct provides them the truck to do it. And if your conduct does provide that truck, STOP. Act right. Do it for your children and yourself.

Child Custody

Physical Custody; An Albright Analysis

09/21/2012 BowTieLawyer 18 Comments

If there is going to be a fight in a custody case it will be over physical custody. Physical custody is different than Legal custody. Physical custody concerns which parent has actual, physical possession of the child. Within Physical custody there are officially only 2 types;

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1) Joint Physical custody which by statute means each parent spends a significant portion of time with the child (though it does not have to be 50/50); and much more common is the second type

2) (Sole) Physical custody to one parent, subject to the other parent’s visitation. This is far more common in Mississippi. A lot of your Agreements may have the term “primary” in the physical custody language and some Judges even insist that it be specified, but “primary” has no statutory significance, meaning it is not a term that carries legal meaning. Lawyers, including myself, still use the term however.

If the parents cannot agree on Custody the Court will conduct what is known as an “Albright Analysis.” Albright v. Albright, 437 So. 2d 1003 (Miss. 1983), is a Mississippi case from the early 1980’s that lists 13 factors that the Court must consider when making an initial custody determination. The specific facts of your case are considered as they relate to each factor and the Court makes a determination as to which factor favors which parent. The Court also determines how to weigh each factor. For instance, the sex of the child while considered, will likely not count as much as the continuity of care for the child. The paramount consideration is “the best interests of the children” A court should determine that by looking at the following factors:

1. Age of the child.

2. Health of the child.

3. Sex of the child.

4. Continuity of care prior to the separation.

5. Which parent has the better parenting skills and the willingness and capacity to provide primary child care.

6. The employment of the parent and the responsibilities of that employment.

7. Physical and mental health and age of the parents.

8. Emotional ties of parent and child.

9. Moral fitness of the parents.

10. The home, community and school record of the child.

11. The preference of the child at the age sufficient to express a preference by law. (Must be at least 12, and it’s ONLY a preference)

12. Stability of home environment and employment of each parent.

13. Other factors relevant to the parent-child relationship.

For additional information please click Dads Have Rights Too!

**Note, marital fault should not be used as a sanction in custody awards. Relative financial situations should not control since the duty to support is independent of the right to custody. Differences in religion, personal values and lifestyles should not be the sole basis for custody decisions.

Matthew Thompson is a family law attorney and will fight for your custody and visitation rights.

Follow the blog: BowTieLawyer Visit the website: Thompson Law Firm

You may also contact Matthew with your family law case, question or concern at (601) 850- 8000

Matthew@bowtielawyer.ms

Child Custody, Divorce, Irreconcilable differences

What to do when your Differences Cannot be Reconciled?

09/19/2012 BowTieLawyer 8 Comments

Irreconcilable Differences (“ID divorce”) is Mississippi’s answer to the NO FAULT* divorce. Mississippi is not a true NO FAULT state. In MS both parties must agree to the divorce and to all the terms of the divorce, including ALL issues of child custody, child support, equitable distribution (how MS divides your stuff) and alimony, if any. Every issue has to be agreed upon to gain an ID divorce***. If ALL can be agreed upon, an ID divorce is just about the quickest and least expensive way to get a divorce in MS.

The basic process is;

1) File a Joint Complaint for Divorce (begins the 60 day waiting period**),

2) Exchange Financial Statements (called an 8.05),

3) Draft and sign an Agreement stating all of the details of who gets what, and who pays what (called a Property Settlement Agreement or PSA),

4) Draft and sign a Final Judgment (the actual divorce), and finally

5) Present all to the Judge for approval.

The Judge will review the Filings, Financial Statements and Agreement, and if the judge finds it “adequate and sufficient” will sign off. Upon the signed Final Judgment being filed and recorded by the clerk- You are DIVORCED.

Well that is fine, but what if we thought we could agree and now we cannot? What can I do then?

Either party can prevent an ID divorce by;

1) Not agreeing;

2) Not signing anything;

3) Filing on Fault;

4) Filing a Notice of Withdrawal of Consent.

An ID divorce is the most often granted type of divorce in Mississippi and even most fault based divorces are converted into an ID divorce. The benefit to an ID divorce is that it does not require adversarial positions to be taken in Court and it gives you, the parties, the ability to agree and have the say in the outcome of your situation. Anything that could be had in a fault based divorce can likewise be achieved in an ID divorce, with the sole exception of having the divorce granted on fault.

* In a NO FAULT state either party can secure the divorce regardless if the other party agrees . In the event they cannot agree the Court can divide the property.

** The 60 day waiting period is the minimum time that the parties to an ID divorce must wait. It is designed as a cooling off period.

*** There is also the possibility of a hybrid situation where you and your spouse can agree on the divorce and agree to let the Judge decide the issues that you cannot agree upon. This technique, however, has its risks and should not be gone into lightly and certainly not without consultation of an attorney.

You may also contact Matthew with your family law case, question or concern at (601) 850-8000

Child Custody, Divorce, Pets

Footballs and Labradors: Wild Custody Battles & Compromises

09/07/2012 BowTieLawyer 1 Comment

With High School and College Football in full action it reminded me of some of the lighter, or at least non-traditional, custody battles that I have been involved in.

Season Football Tickets- I was involved in a case where the parties were arguing over who got the season football tickets.

The tickets were secured by one party who had been getting them for years, but were actually paid for by the other party, so both felt they had a legitimate claim, additionally both genuinely wanted the tickets. It was not posturing by the wife to get a better deal or more support. The solution was joint custody.

Each picked certain games that they would attend each year and on the ones that both wanted to attend they agreed to alternate even years and odd years to determine who got to go. Another interesting aside was that there were 2 tickets for each game. Who the guest would be was also an issue. Neither wanted the other to be able to take a bf/gf. The compromise there was that the other ticket would be used by a family member or a minor friend of the children. (Minor meaning under 21, not just small). The custody of the tickets was one of the last issues to get resolved. It really did matter.

Dogs- In a similar vein, I have handled several cases involving pets. Pets, under Mississippi law are considered personal property (like an item or thing), however the parties are free to treat pets as members of the family should they so elect, and many do.

The parties ultimately agreed on a week-on, week-off custody arrangement for the dog to be with each “parent.” The agreement also addressed the expenses associated with the dog, including food, care and vet bills. Don’t forget those items!

Almost anything can be negotiated.

Child Custody, Divorce

Labor Day and Visitation

08/31/2012 BowTieLawyer 2 Comments

With Labor Day approaching it is a good time to reflect on the contributions and achievements of American workers. Those efforts are the reason we celebrate Labor Day, and have since it became a Federal holiday in 1894.

Labor_day : Labor Day Design with the handoff worker holding the wrench Stock Photo

Labor Day is also a good reminder for paying attention to visitation issues. It is extremely common in the divorce agreements that I prepare that the non-custodial parent receive additional time, more than the every other weekends that seem “standard.” I often include that the weekend extends through the Monday holiday. This gives that parent additional time with the child of uninterrupted visitation.

In fact, I have a schedule of all Federal and State Holidays and routinely have this specifically addressed in custody/visitation agreements. There is almost one Monday holiday in every month. These times add up and provide both parents additional welcomed time with the child and perhaps, even, a much needed break. Pay attention to the details when ironing out the specifics in a custody/visitation agreement and make sure you address the other holidays and not just the “big” ones.