Don’t Curse in Public! (Public Service Announcement)

In my profession as a “wicked” divorce attorney I hear lots of cursing and sordid tales. I see pictures, movies, texts, emails, and love letters that would make you blush. Plus I get paid to review this “evidence.” (All fodder for future blogs!). I am saying this just so you know I am not a “prude.” However, I have recently visited the most magical place on Earth and was astounded with what I heard. (**I do not attribute the amount of the cursing to the magical location. I think I was more acutely aware of the cursing due to the circumstances. Don’t sue me, Mickey!**)

stockimage/ freedigitalphotos.net

With that disclaimer, the following is a snippet of what I personally heard/observed;

  • “He’s an a**h****! See his badge. All the guys with badges are a**h***s.” (Said by a an early fifties male guest to his early fifties wife, about a park employee bus driver, as the wife nodded in agreement).
  • “More like Barbie B*tch.” (One mom said to another mom when the child was describing Tinkerbell Barbie to another child).
  • “That’s some bu**$***.” (Not sure of the context, but overheard a forty-something male saying to his friend).
  • Various “F-bombs.” (Mainly regarding waiting in lines; lines for the bus, for the rides, for the restaurants…there are a lot of lines).
  • AND overheard kids saying;
  • “$h**, mom! We missed Tinkerbell!” (I really heard a 12-year-old say this to his mother, mom responded that Tinkerbell will probably be back soon).
  • “Don’t be a ‘Whiny B#tt'” (Said by a 5-year-old to her 4-year-old sister).
Theatrical release poster/wikipedia

Okay, so you heard someone cussin’. What’s the big deal?

The big deal is that there were numerous children all within earshot of every instance, from babies to teenagers. I don’t use curse words, except professionally. I would especially prefer you to not curse around children. Also, it could get you cited for obscenity or disturbing the peace.

And kids cursing? Come on. Back in the day; b#tt, d@mn, cr@p and s#cks were bad words. Not to mention the unmentionables (four-letter words). Let’s keep those words taboo.

Want to cuss at your house? Have at it. Go to a public location attended by 1,000s of kids, try not to be the cast from The Usual Suspects. Want your child to gain friends and win influence? Teach them how to speak by setting the right example.

Don’t like my opinion? Cuss me out, but do it via email at Matthew@wmtlawfirm.com or the next time we are having a private conversation.

Thompson Law Firm, pllc Matthew@wmtlawfirm.com (601) 850-8000

Things Primary Custodians Know; Custody Battles

When mom and dad are getting a divorce, or even if not married, custody is frequently an issue.  In the event that they cannot agree to the Custody arrangement, the Court will decide for them by applying the Albright Custody factors.

Within these factors there are a few which carry more weight than others. (Ultimately the Jude determines the weight of each).  Today’s blog is focusing on the “continuity of care prior to separation.”  This means who has been the primary caregiver.  To determine this the Court conducts a factual review of the parties actions and conduct with regards to being the primary caregiver and knowing the things primary caregivers know.

Primary caregivers know;

  • School teacher(s)
  • Day care provider(s)
  • Pediatrician
  • Dentist
  • Close friends of the child
  • Child’s favorites; food, colors, TV shows, toys
  • Child’s physical health issues
  • Clothes sizes
  • Shoe sizes

Primary caregivers do the following;

  • Get the child ready for their day
  • Cook, clean, wash, bathe the child
  • Take the child to and from school
  • To and from the Dr.’s visits
  • Playdates
  • Birthday parties at the Jump Zone
  • School programs
  • Extracurricular Activities
  • Clothes shopping
  • Shoe shopping
  • Santa Clause, Tooth Fairy, Easter Bunny

While the division of the above chores is rarely even, and each parent has their role, more often than not one parent is doing more and the Court will consider the facts when determining continuity of care.

*The Court determines the weight of each factor.  Even if a parent was favored in continuity of care, that factor alone does not provide that they will gain custody in every circumstance.

Thompson Law Firm, pllc     Matthew@wmtlawfirm.com      (601) 850-8000

Can Children Testify in Court?

Child testimony is an often discussed issue between parents and attorneys dealing with family law cases. When parents are getting a divorce the children usually know more than their parents think and have “discoverable” information. The children most likely witnessed fights, arguments, or other “bad” conduct. Perhaps they knew of one parties misconduct and were asked to help hide it, or at least not disclose it. Also, the children frequently know there is more to the story than mom and dad can no longer get along.

“We reiterate that parents in a divorce proceedingimgres.jpg should if at all possible refrain from calling any of the children of their marriage, of tender years at least, as witnesses, and counsel should advise their clients against doing so except in the most exigent cases.”- Jethrow v. Jethrow

So, do the children testify or not? Typically having the children testify should be avoided if it can be. There are several seminal cases in Mississippi law that deal with child testimony. For Chancery Court, or divorce court, purposes the leading authority is Jethrow vs. Jethrow, 571 So.2d 270 (Miss. 1990). This case lays the groundwork that the Court should use when assessing child testimony. Different Courts and different Judges apply Jethrow in varying ways, but the basic premise is, as follows;

  • A child witnesses of tender years, 12 and under for testimony purposes, testifying is subject to the discretion of the Judge.
  • Before allowing such testimony the Judge “should satisfy himself that the child has the ability to perceive and remember events, to understand and answer questions intelligently, and to comprehend and accept the importance of truthfulness.”

Before excluding the testimony of a child witness of tender years in a divorce proceeding, the chancellor at a minimum should follow the procedure required by Crownover v. Crownover, 33 Ill.App.3rd 327, 337 N.E.2d 56 (1975):

  • The first hurdle is whether the child is competent to testify.
  • The Judge should confer in camera (meaning in the Judge’s chambers/office) with the child and determine whether or not the child’s testimony should be heard
  • The Judge has considerable discretion in conducting proceedings of this type, meaning it’s a judgment call.
  • The court should not, however, reject outright proposed testimony of a child in custody proceedings, where the omission of such crucial testimony might be harmful to the child’s best interests.
  • The trial court should take great pains to have an in camera conference with the child to determine the competency of the child,
  • as well as the competency of any evidence which the child might present.
  • The court should also then determine whether the best interests of the child would be served by permitting her to testify, or
  • Whether the child should be sheltered from testifying and being subjected to a vigorous cross-examination.
  • The Judge should report the essential material matters developed at the in camera conference on the record.
  • The Court should state the reasons for allowing or disallowing the testimony of the child, and
  • The Court should note the factual information which the court developed from the conference with the child which would be considered by the court in its ultimate determinations in the case.

Generally, the testimony of a child called as a witness in a divorce case should not be excluded for reasons other than competency, or evidentiary defects, or for the protection of the child. (24 Am.Jur.2d, Divorce and Separation, A 415). There should not be a summary refusal to inquire as to the competency of the child to testify and also of the competency of the proposed testimony of such child in a change of custody proceeding.

“We reiterate that parents in a divorce proceeding should if at all possible refrain from calling any of the children of their marriage, of tender years at least, as witnesses, and counsel should advise their clients against doing so except in the most exigent cases. The reason and wisdom behind this precaution need no amplification. We also hold, however, as we must that no parent can be precluded from having a child of the marriage in a divorce proceeding testify simply because of that fact.” Jethrow v. Jethrow, 571 So.2d 270, 274 (Miss. 1990).

A child testifying should be avoided if it can be, however if it cannot be avoided the above process will likely be used by the Court to determine if and how the child will testify.

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

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

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