Category Archives: Visitation

Guilty of Domestic Violence? = No Custody.

Divorce, family conflict and high emotion can sometimes lead to domestic violence, and sometimes domestic violence leads to high emotion, family conflict and divorce.  In addition to Domestic Violence being a crime, the perpetrator of family violence is presumed to be unfit for custody by law.

Mississippi Law provides that a parent with a history of family violence shall not have custody.  MCA Section 93-5-24 (9) applies to “every proceeding where the custody of a child is in dispute.  The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered.  Miss. Code Ann. § 93-5-24 (9)(a)(1).

Once proof of family violence is offered and findings of family violence is made by the court, the following must be enforced by the Court.

  1. That “there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in…physical custody of a parent who has a history of perpetrating family violence.”
  2. That the Court “shall make written findings to document…why the presumption was or was not triggered.
  3. That the presumption… be rebutted only by a preponderance of the evidence.
  4. That the six factors set forth in the statute be considered in determining whether the presumption was overcome. Miss. Code Ann. § 93-5-24 (9)(a)(iii)(1-6)  
    •  1.  Whether the perpetrator demonstrated that gaining custody …is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse or such other circumstances;

    • 2.  Whether the perpetrator  completed a  treatment program;

    • 3.  Whether the perpetrator  completed  alcohol or drug abuse counseling;

    • 4.  Whether the perpetrator completed a parenting class;

    • 5.  If the perpetrator is on probation, whether he or she is restrained by order, and whether he  has complied with conditions; and

      6.  Whether the perpetrator has committed any further acts of domestic violence.

  5. That the Court “make written findings…why the presumption was or was not rebutted.”
  6.  That if both parents had a history of family violence, that custody “be awarded solely to the parent less likely to continue to perpetrate family violence.”
  7. That the Court “award visitationonly if the court finds that adequate provision for the safety of the child and the parent who is a victim can be made.”

It is error for the  Court to not address the statutory requirements upon a showing of family violence.  Lawrence v. Lawrence, 956 So.2d 251 (Miss. App. 2006).

It is clear that the statute applies to all child custody matters.  93-5-24 (9) applies to “every proceeding where the custody of a child is in dispute.” Id.   Additionally, the statute contains no requirement that a party ask for its application. Instead, the statute requires a mandatory duty to make findings as to whether or not the presumption was or was not triggered by the history of family violence.  Lawrence v. Lawrence, 956 So.2d 251 (Miss. App. 2006).

Matthew Thompson is a family law attorney in Mississippi and cautions clients that violence makes everything worse.

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A Fool for a Client…and Lawyer

“He who represents himself has a fool for a client.”

– Abraham Lincoln

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Oh, I have heard the stories that so-and-so did it and “won,” but that is the exception and not the rule.  Family law cases are hard to manage anyway, much more so if you don’t know what you are doing and if your judgment is clouded by high emotions.  I have seen many a Pro Se client just do awful.

Pro Se is the term the Courts use. It is Latin, meaning “for oneself.”

Lawyers have specific training and education regarding Court rules, rules of evidence and procedure.  Legal matters require things be done in a certain fashion or they are not valid.  Lawyers, usually, have experience with that particular area of the law and the Judge handling the matter.

I was involved in a case where the father, representing himself, sued the mother for interfering with his visitation, according to him.  He filed the suit, had her served and got a Court date.  Oops!  He did it wrong.  After filing, he should have gotten the Court date, had a summons issued (the correct summons by the way, a Rule 81 Summons in this instance) and then had the mother served.  Because he did it wrong it, he could not get the relief he was seeking and had to do it over.  In the meantime, mom met with her attorney, who asked the right questions.  It turns out dad was well behind on his child support and that the child and the father had a significant altercation which prompted the visits to stop.  Now, mom was armed with a lawyer, the law and filed against dad.  Ultimately, dad was held in contempt for non-payment of support.  He had to pay mom’s attorney fees and once the Judge heard about the altercation between the child and father, he ordered anger management counseling for dad and restricted visitation until dad re-petitioned the Court for visitation, after completing the counseling.  I like to think that if I had represented dad it would have been a different outcome or perhaps dad could have tried to resolve things without Court involvement. He should have had an attorney.  Click here for blogs on “Do I Need an Attorney?” & “How do I Find an Attorney?

Representing yourself is about the worst thing you can do in a divorce and custody case!

Matthew Thompson is a family law attorney in Mississippi and thinks it wise to see an attorney before you try to represent yourself, and to not do it even after that.

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 or Matthew@wmtlawfirm.com.

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Want a Happy Birthday?! Don’t Forget this “Holiday.”

Happy Birthday! is something we all look forward to sharing with our children.  But, is this day saved in your Divorce Agreement?

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Happy Birthday/ BowTiePublishing

I have previously blogged on the “forgotten holidays” (Halloween, labor day) and visitation schedules.  Birthdays are also often overlooked at times of divorce.  A Court’s standard visitation does not include, specifically, children’s birthdays so it is up to you, as an attorney or client, to remember the dates that matter.

In most of my Agreements the child’s birthday is specifically considered.  The following is an example.

The Father shall have custody of the minor child, at least, as the following times… “On the child’s birthday in odd-numbered years, from 8:00 a.m. until 2:00 p.m., and from 2:00 p.m. until 8:00 p.m. in even-numbered years, or all other times as mutually agreed upon by the parties.  The child shall be with the Mother on her birthday, including overnight, and with the Father on his birthday, including overnight.

Some alternative language is as follows;

The parents shall cooperate on each child’s birthday and shall plan to attend and pay for the child’s birthday party on an equal and reasonable basis.  However, if the parents are unable to agree, then notwithstanding which parent has physical custody on the child’s birthday, the parent not having physical custody of the child on her birthday shall have the opportunity to celebrate the birthday with that child from 4:00 p.m. until 7:00 p.m. on her birthday.

None of the above language is perfect for every circumstance and the fact that it must be included could be an indicator that mom and dad are not working together in the child’s best interest.  Also, parties can disagree on how to “cooperate” and what is “reasonable.” However, if you are dealing with a battle-axe it’s much better to have specific language and not need, than to need it and no have it.

Matthew Thompson is a Family Law attorney and wishes Claire a happy, happy, happy birthday!

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 or Matthew@wmtlawfirm.com.

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