Tag Archives: custody

Child Custody, Divorce, Marriage

Cheetah, Cheetah! (The Cheater Gets Nothing? Not Necessarily.)

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Your dirty, no-good, lying, sorry sack of spouse is a CHEATER. Obviously when the Court hears about this that so-and-so will be excoriated and will never show their face again in town. They certainly won’t get anything, right?

In Mississippi, an Affair is a fault ground for divorce. If your spouse is guilty of an affair it will get you a divorce, but don’t count on that fact alone meaning you get everything and they get nothing. It does not mean that he will have to pay you or that the CHEATER cannot get alimony or even custody.

Back in the olden days, some may say the “Good ‘Ol Days”, a lady was barred from receiving alimony if she were guilty of adultery. This is no more, though contributions to the stability and harmony of the marriage are considered and an affair can play a part in what is ultimately received.

Additionally, a spouse having an affair is not barred from being awarded custody. In the olden days a mom that had an affair could be putting her children at risk. Today, a parent’s adultery or morality pursuant to the Albright Custody Factors is considered, but an affair with no adverse impact to the child – will not automatically mean the CHEATER will not get custody.

So, cheat with impunity? No. Just know that cheating ain’t what it used to be, unless it is.

Matthew Thompson is a family law attorney and Cheetahs do NOT change their spots.

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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Child Custody, Child Support, Divorce, Grandparent Visitation

‘Til Death, Even in Divorce

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There  is an old joke that the only sure things in life are death & taxes.  Even in divorce you still have to worry about death and taxes.

Death:  I have had several pending cases ended by death.  In one instance my client’s spouse died very suddenly of an accident.  It ended a contested divorce and custody case that had been progressing very slowly and not particularly amicably.  While the divorce and custody issues were over, it created new issues with the deceased spouse’s family. Grandparent visitation issues and intestacy issues arose, since the spouse died without a will (intestate).  This made the surviving spouse and children equal beneficiaries.  This was something the deceased’s side of the family was not to keen about.

I was also involved in a case where the non-custodial parent got custody of the children when the custodial parent died after the case was “over.”  They had been divorced for a few years.  But upon the custodial parent’s death the children when back to the surviving parent.

Death does not end the issues you have with the other parent or former spouse.  I know a lot of divorcing spouses may think it will solve all of their problems if that so-and-so would just die, but it could leave your children without their other parent.  It can create issues with the former in-laws, who now may be pursuing their rights of grandparent visitation.  It can create financial uncertainty as support obligations end at death, usually, and there might not be insurance or enough insurance.

Be careful what you wish for…

Matthew Thompson is a family law attorney that hopes your case is not prolonged or shortened due to the death of your attorney.  (Taxes will be the subject of another riveting post).

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

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Child Custody, Divorce

Guardian Ad Litems – Representing Children in Court

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The Judge’s job in a custody/divorce case is  to determine the best interests of the children when mom and dad are fighting. The Judge considers mom’s testimony and evidence as well as dad’s and even the children’s testimony (clickable).  But there is also another implement in the tool box of information available to the Court, the Guardian Ad Litem (GAL).

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A GAL is a person, usually a lawyer, appointed by the Court to take on one of two roles.

1) The first of these is to be an Attorney for the Children.  To represent the child in the same capacity any attorney would represent a client, with the same duties, obligations and confidences that every attorney owes to each client.  This role is fairly uncommon in custody/divorce actions.

2) The much more common role is that of Investigator for the Court.  Judge’s routinely appoint an attorney to serve as the Court’s eyes and ears on the ground.  Judge’s are limited to what they can hear.

They are limited by time constraints, objections, admissibility issues, and lawyer’s abilities.  A GAL appointed by the Court as an Investigator has much more readily available access to information.  

  • GALs interview mom, dad and the children.
  • They can interview teachers, doctors, counselors, friends, and coaches.  
  • They can practically speak to anyone they think they need to.  
  • A GAL can inspect the home where the children stay and can do so unannounced.  
  • GALs can pay surprise visits.  
  • GALs can access school records, medical records, counseling records.  
  • GALs can request medical evaluations and even psychological evaluations.  
  • GALs, by and large, can do what is necessary to get to the bottom of the issues in a case.

So why does every case NOT have a GAL? 

1) They are only required in abuse/neglect cases, otherwise it is discretionary. The Court may not allow for a GAL.

2) It adds another layer of expense, another attorney to pay.  The Court usually makes both parties pay.

3) It can create delay.  The GAL may ask for more time to conduct the investigation and scheduling trial depends on another lawyer’s calendar.

4) The GAL may not believe you.  They are human and may believe the other parent over you, plus you may be lying to them.  It adds risk.

5) They may not do a good job.

GALs typically prepare a report that is provided to the Court and both lawyers. It recounts their efforts, interviews, documents reviewed and conclusions drawn.  The GAL report also includes recommendations, usually.  The Court is not required to follow the GAL recommendation.

Guardian Ad Litems can be a critically important tool available to the Court or parties in a contested custody battle, but the involvement of a GAL also has risks and expenses associated too.  Talk to your lawyer if you have concerns about abuse/neglect and whether a GAL may help in your case.

Matthew Thompson is a family law attorney that has served as a GAL and has handled numerous cases involving GALs.  He has seen the good, the bad and the ugly.  He also conducts GAL training sessions at Continuing Legal Education Seminars for  lawyers that want o become certified GALs;  topics include conducting GAL Custody Evaluations, GAL Investigations, GAL Reports and Testifying.

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.

 

Child Custody, Divorce, General Legal

Secret Spy (Hiring a Private Eye)

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One of the perks of being a divorce attorney is you get to be acquainted with a number of other people who have really cool jobs.  This post is about Private Investigators (PIs), when to use them and what they need from you.

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I have previously posted of some of the potential warning signs of an affair. (click here)  If you have suspicions that your spouse may be having an affair it may be wise to hire a PI.  A PI can follow your spouse, take pictures, document their whereabouts and identify third persons that your spouse may be with.  In addition to adultery situations, PIs may also be useful in locating hard-to-find persons/witnesses and even completing service of process.  A PI can also play a role in custody cases in documenting the other parent’s living conditions, if a third-party is sleeping over and the other parent’s comings and goings.

PIs have come a long way from hiding in the bushes snapping pictures, though it still happens.  There are hi-tech means of surveillance, GPS tracking abilities and computer forensics which can discover that nothing is truly deleted!

Here’s a starter list to provide a PI in the event you choose to hire one.

  • Pictures of who they are to follow.
  • Pictures and tag # of the car(s) they are to follow.
  • Where that person works and normal office hours.
  • Where that person hangs out, works out and/or chills out.
  • The usual routine; ie: on Wednesdays he always goes to Buffalo Wild Wings.
  • Address of the home and anywhere else the person may be staying.
  • List of suspected paramour(s).
  • Any and all information you have about paramour(s).
  • Your usual routine, too.  Knowing this the PI may be able to catch you-know-who where they should not be when you are at the Wednesday evening service.

Talk to the PI about fees.  These are not covered in attorney fees.  PIs usually charge a retainer and bill by the hour and for mileage.  Be careful about having your spouse followed to New Orleans, it may not be worth it if you don’t get the goods.  Also, make sure the PI generates a report, pictures and will testify in Court, if necessary.

The use of a PI is discoverable in litigation, which means if you use one and are asked about it you will have to disclose it.  Stay tuned for a blog about what to do if you think you are being followed.

Matthew Thompson is a family law attorney that leaves the private investigation to the PIs, but does review the pictures and videos from the investigations, as it is required by his job!

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.

Child Custody, Divorce, General Legal, Modifications

Jurisdiction; Where to Sue.

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Jurisdiction is one of those legal terms we hear a lot, but aren’t always sure what it means.  In the legal world, for a Court to be able to act upon a  filed complaint and grant relief to a party, the Court must have jurisdiction.

Jurisdiction provides the Court authority to makes decisions over a party and the topic of their lawsuit.

Mississippi law provides rules for determining if a Court has jurisdiction and where that may be.  MCA § 93-5-5, contains the residency requirements for a divorce  action.  Additionally, all actions for divorce will be filed in the Chancery Court for the appropriate county.

The jurisdiction of the chancery court in suits for divorce shall be confined to the following cases:

(a) Where one (1) of the parties has been an actual bonafide resident within this state for six (6) months next preceding the commencement of the suit. If a member of the armed services of the United States is stationed in the state and residing within the state with his spouse, such person and his spouse shall be considered actual bonafide residents of the state for the purposes of this section, provided they were residing within the state at the time of the separation of the parties.

(b) In any case where the proof shows that a residence was acquired in this state with a purpose of securing a divorce, the court shall not take jurisdiction thereof, but dismiss the bill at the cost of complainant.

In plain terms, this means you file your divorce action in your home county, or the County that you have resided in for at least 6 months, immediately filing the action.  If you were married in another stated and meet the Mississippi residency requirements you file in Mississippi.  If were married on the Coast, but live in Jackson and have for over 6 months you file in Jackson.  Sometimes, if you wish to file in your current area, but have not met the residency requirements you may have to wait.  Sometimes there are disputes as to residency and the parties can litigate where the case should be litigated.  Some states have different residency requirements than Mississippi so don’t bank on the 6 months if you are in another state.

There are also a number of exceptions or tweaks to the jurisdictional rules.  Another Court, or State, could have “emergency jurisdiction” in child custody cases pursuant to the Uniform Child Custody Jurisdiction Enforcement Act. (UCCJEA).  Also, if your divorce was originally in another state or another county, that original Court would have original jurisdiction and there are additional rules to “transfer” jurisdiction and in some instance you cannot move it.  Military family law cases also have exceptions to the traditional jurisdiction rules.

Jurisdiction is a critical aspect to consider when filing.  It is imperative that your case be filed in the right place geographically and the right Court.  You also may have options between differing Courts based on what is at issue in your case.  Talk to your lawyer about where your case should be filed.

Matthew is a family law attorney and native Mississippian.  Follow his blog, here, at http://www.BowTieLawyer.wp.com.

You may also contact Matthew with your family law or jurisdictional question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.

Divorce

Things Primary Custodians Know; Custody Battles

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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          (601) 850-8000

Child Custody, Divorce

Happy Halloween! Don’t Overlook this “Holiday.”

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Halloween gets no respect from divorce attorneys.  No,  Halloween is not the reincarnated Rodney Dangerfield.  It’s just that in the divorce world Halloween is not a “real” holiday.  It is not recognized either nationally or by the state.  You do not get to miss school or skip work.  The banks and post office are still open, unlike a “real” holiday.  However, Halloween is nonetheless important!

Happy Halloween!

I oftentimes put provisions for visitation on Halloween in my agreements.  It is usually met with an awkward response by the other attorney saying,”you know that’s not a real holiday, right?”  However, Halloween is a real holiday to your kids.  Dressing up, trick or treating, hay rides, wagon rides, pumpkin carving and eating candy – What is not to love about Halloween?!?

Admittedly, Halloween does have a relatively short shelf life.  From around the age of 3 or 4 to about 13 is as long as it lasts and thereafter becomes a night of mischief.  But for those ten years or so – if you solely rely on the weekend rotation to get “your” Halloween, you may only get two.  Halloween is always a moving target with regards to what day of the week it falls upon.  Halloween needs to be addressed if you have young children.

See other forgotten Holidays hear https://bowtielawyer.wordpress.com/2012/08/31/labor-day-and-visitation/.

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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Child Custody, Divorce, Opinion

The BEST thing you can do for your CHILD…

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In Family Law the “best interest of the child” is the paramount concern for the Court.  When parents are feuding over custody, or child related matters, the Court is charged with deciphering what is in the best interest of the child by determining the facts of a particular situation and how those facts relate to a list of certain factors.  This is called an Albright Analysis (previously blogged).

However,  while this may result in the Court determining which parent is in the best interest of the child- it only ultimately results in a comparison of the two and does not indicate what act/actions are in the best interest of the child.  In English, this means the Court picks the better parent, but it does not automatically mean that the favored parent is a great parent.  Rather it just means they were better than the alternative.

So, what is a great parent?  A parent that reads to their young child, provides for their education, health and general welfare.  A parent that has fun with their child and encourages creative thinking and activities.  Well, yes.  All of these are factors in good parenting.

But what is the best thing that YOU can do for your child?  Love them. Sure, but in addition, LOVE the other parent.

What?  That creep?  Yes.  Loving the other parent means you make sure the other parent is in that child’s life in a meaningful way.  Loving the other parent means you are not denigrating them to the child or others.  Loving the other parents means you do not do anything to cause your child to not love the other parent.

I see the opposite too much!  One parent hates the other.  They try to punish the other parent by restricting their access to the child. This is wrong. (There may be circumstances that warrant this, but they are rare and are usually temporary.)

What is the BEST thing you, as a parent, can do for your Child?   LOVE the other parent enough to let them have a relationship with the child.

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

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