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

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Child Support; What you Owe

Mississippi Code Section § 43-19-101 specifically details the Child Support Award guidelines.

Number Of Children              Percentage Of Adjusted Gross Income   
1                                                             14%
2                                                            20%
3                                                            22%
4                                                            24%
5 or more                                        26%

Basically you take your gross income for the year and subtract state and federal taxes, and mandatory deductions.  This leaves you with your adjusted gross income. Divide this amount by 12.  This equals your monthly adjusted gross income.  Multiply this number by the appropriate percentage and that is the amount of child support you owe.  For example. Let’s say that you make $3,250 per month, gross. First, deduct state and federal taxes, Social Security and Medicare. (State $125, Federal $200, Soc Sec. $180, Medicare $47 = $552.00 in deductions.) $3,250.00 – 552.00= $2,698.00.  Multiply this by 14%.  $2,698.00 x .14= $377.72  Your monthly obligation is $380 in child support.

Below is the paraphrased statute and includes more detailed information for child support calculations.
The amount of “adjusted gross income” as that term is used in subsection (1) of this section shall be calculated as follows:
  1)  Determine gross income

What is counted towards “gross income” income for child support purposes?

  • wages and salary income;
  • income from self employment;
  • income from commissions;
  • income from investments, including dividends, interest income and income on any trust account or property;
  • absent parent’s portion of any joint income of both parents;
  • workers’ compensation, disability, unemployment, annuity and retirement benefits, including an individual retirement account (IRA);
  • any other payments made by any person, private entity, federal or state government or any unit of local government;
  • alimony;
  • any income earned from an interest in or from inherited property;
  • any other form of earned income; and
  • (Not to be Counted) However, gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent’s current spouse;

2) Subtract the following legally mandated deductions:

  • Federal, state and local taxes;
  • Social security contributions;
  • Retirement and disability contributions (except any voluntary retirement and disability contributions* and most are voluntary*);
  • If the absent parent is subject to an existing court order for another child or children, subtract the amount of that court-ordered support;
  •  If the absent parent is also the parent of another child or other children residing with him, then the court may subtract an amount that it deems appropriate to account for the needs of said child or children;

3) Compute the total annual amount of adjusted gross income based on the above,

4) Divide this amount by twelve (12) to obtain the monthly amount of adjusted gross income.

5)  Multiply the monthly amount of adjusted gross income by the appropriate percentage

**The statute applies in cases in which the adjusted gross income as defined in this section is more than  One Hundred Thousand Dollars ($ 100,000.00) or less than Ten Thousand Dollars ($ 10,000.00), the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.** (The figures above were changed by the MS legislature in the 2013 session from $5k-$50k, the above figures are the current amounts)

What else is included over and above child support?

6) All orders involving support of minor children, as a matter of law, shall include reasonable medical support. Notice to the obligated parent’s employer that medical support has been ordered shall be on a form as prescribed by the Department of Human Services. In any case in which the support of any child is involved, the court shall make the following findings either on the record or in the judgment:

(a) The availability to all parties of health insurance coverage for the child(ren);
(b) The cost of health insurance coverage to all parties.

The court shall then make appropriate provisions in the judgment for the provision of health insurance coverage for the child(ren) in the manner that is in the best interests of the child(ren). If the court requires the custodial parent to obtain the coverage then its cost shall be taken into account in establishing the child support award. If the court determines that health insurance coverage is not available to any party or that it is not available to either party at a cost that is reasonable as compared to the income of the parties, then the court shall make specific findings as to such either on the record or in the judgment. In that event, the court shall make appropriate provisions in the judgment for the payment of medical expenses of the child(ren) in the absence of health insurance coverage.

Matthew Thompson is a family law attorney in Mississippi and encourages you to have an attorney review your support obligations annually.

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@bowtielawyer.ms

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What to do when your Differences Cannot be Reconciled?

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.

Stuart Miles/free digitalphotos.net
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.

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@bowtielawyer.ms

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

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