Dads Have Rights Too!

(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.

Great Dad

 

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.

21 (And We’re Not Talking About BlackJack) Age of Majority – Emancipation

The age of majority in Mississippi is 21.  That means you pay child support and provide benefits for your child until he or she attains the age of 21.  It is NOT 18.  While your child may think he or she is grown at age 18, the state of Mississippi says otherwise. MCA 93-11-65.  The age of majority is also synonymous with emancipation, though a child may be judicially emancipated prior to 21.

So you are paying until 21, but there are exceptions.

Emancipation is a process of having the child “declared” an adult  shall occur upon the child;

  • Marrying
  • Joining the military and serves on a full-time basis
  • Is convicted of a felony and is sentenced to incarceration of two (2) or more years for committing such felony

Other forms of Emancipation include Court-Ordered Emancipation when your child;

  • Discontinues full-time enrollment in school having attained the age of eighteen (18) years, unless the child is disabled
  • Voluntarily moves from the home of the custodial parent or guardian, and establishes independent living arrangements, obtains full-time employment and discontinues educational endeavors prior to attaining the age of twenty-one (21)
  • Cohabits with another person without the approval of the parent obligated to pay support; cohabits generally means living together as if husband and wife.

Mississippi has lower rates, meaning amounts of child support, when compared with other states nationally, however, Mississippi makes up for it by extending payments to 21 in most instances.

Click here for Mississippi Child Support Rates

Pay your child support and pay it on time.

Matthew Thompson is a family law attorney that files Contempt actions against persons that are not paying their Child Support.  Don’t be one of those persons!   Trust the Bow Tie.

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.

Physical Custody; An Albright Analysis

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

black-bow

Divorce, Child Custody & Child Support, Alimony, Contempt, Modification, Youth Court, Adoption and Appeals.

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