Tag Archives: violence

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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Domestic Relations vs. Domestic Incarcerations; Jail for bad behavior.

In Family Law, dealing with divorce and child custody issues are enough to keep any attorney busy.  With ever-changing emotions, gray areas of the law relating to dividing assets and assessing how a particular judge may determine the best interests of a child, attorneys and clients don’t need more on their plate to deal with.  But, there is more…Jail!

Sura Nualpradid /freedigital photos.net

I have previously blogged on going to Jail for having sex and not paying child support, but there is another reason folks go to jail in their family law case, letting their emotions get the best of them.

It is quite common for Family law matters to “spill over” into Justice Court or Municipal Courts.  Most commonly are assault, trespass and domestic violence violations.  I have included portions of the statute for you to review, below and italicized common issues.

The severity of these charges depends in large part on the severity of the circumstances, the severity of injuries, if any, and whether there is a history of violations or abuse.  Unfortunately, it is not uncommon for one spouse to attempt to use these criminal allegations to “one-up” the other and attempt to use the criminal charges as leverage in divorce negotiations.

Lawyers would be wise to warn their clients about the possibility of a client losing their cool, even once, leading to criminal charges and that, perhaps, their former significant other may “create” circumstances in the hopes of using those against them in a later or pending divorce action.

§ 97-3-7. Simple assault

(1) (a) A person is guilty of simple assault if he (i) attempts to cause or purposely…causes bodily injury to another; (ii) negligently causes bodily injury with a deadly weapon… or (iii) attempts by physical menace to put another in fear of imminent serious bodily harm; shall be punished by a fine of not more than Five Hundred Dollars ($ 500.00) or by imprisonment for not more than six (6) months, or both.

§ 97-17-85. Trespass; going upon inclosed land of another 

If any person shall go upon the enclosed land of another without his consent, after having been notified by such person …not to do so …or shall remain on such land after a request by such person; shall, upon conviction, be fined not more than Fifty Dollars ($ 50.00).

§ 97-3-7. Simple domestic violence; Aggravated domestic violence 

(3) A person is guilty of simple domestic violence who commits simple assault as described in subsection (1) of this section (see simple assault)  against a current or former spouse … upon conviction, the defendant shall be punished as provided under subsection (1) …a third conviction of simple domestic violence…within five (5) years, the defendant shall be guilty of a felony and sentenced to a term of imprisonment not less than five (5) nor more than ten (10) years.

§ 97-3-7.  Aggravated domestic violence 
(4) A person is guilty of aggravated domestic violence who commits aggravated assault as described in subsection (2) of this section against, or who strangles, or attempts to strangle, a current or former spouse … Upon conviction, the defendant shall be punished by imprisonment in the custody of the Department of Corrections for not less than two (2) years nor more than twenty (20) years… a third conviction of aggravated domestic violence…within five (5) years, the defendant shall be guilty of a felony and sentenced to a term of imprisonment of not less than ten (10) nor more than twenty (20) years.

(2) (a) A person is guilty of aggravated assault if he (i) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (iii) causes any injury to a child who is in the process of boarding or exiting a school bus in the course of a violation of Section 63-3-615; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the Penitentiary for not more than twenty (20) years.

Matthew Thompson is a family law attorney that has only been to jail to help his clients get out.  He intends to keep it that way and hopes (advises) that you do too!

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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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