MS Poole http://www.mspoole.com MS Poole Tue, 20 Aug 2019 15:50:57 +0000 en hourly 1 https://wordpress.org/?v=5.2.2 Advice to Women: How to Spot a Bad Dad /advice-to-women-how-to-spot-a-bad-dad/ Thu, 22 Aug 2019 13:01:18 +0000 /?p=1430 One of the most powerful drivers of domestic litigation, mom filing suit against dad or vice-versa, is the desire by both parents to receive or avoid child support obligations.  The typical, let’s say father, will usually bend over backwards to avoid paying child-support, because it is a 21 year obligation not easily dispatched. Sometimes, and more often than not, these dads look for creative ways to thwart that obligation by seeking joint custody of their child.  Do they really want to spend close to half of the time with the little one? Doubtful, at best. Their answer? “I want joint custody”. For a seasoned lawyer, we all see through this veil of nonsense.  

It is clear that Mississippi law prefers parents to agree to custodial arrangements, in large part to take a hefty load off of the backs of our strained judicial system.  Although the consequence is not intentional, many domestic lawyers get paid large sums to fight for “joint” custody for a parent who simply wants to avoid child support obligations.  So, let’s explore the impact of one child on an average man’s balance sheet, monthly.  

Per capita income in Mississippi for a single man is about $33,000.  After mandatory deductions, that number shrinks to about approximately $26,600.  That is only a little over $2,200. per month. Now, if said average income man has a child and owes support, he will owe 14% of that $2,200 in support, or about $320 per month.  Ouch to him. This figure does not include extracurricular activities, day-care, or medical and dental costs. Kids are not, and never have been cheap. If you thought that having a dog was expensive, you were wrong.  

Why are so many men pushing the narrative of “joint” custody?  Are they really concerned about being heavily involved in their childrens’ lives?  Most often they are not, but there are the rare few great men who are not as concerned about paying child support as they are about being involved in child-rearing.  These men are uncommon, but they do exist. My experience allows me to spot the fake “great dads” rather quickly. It is always about the money for them, not concern for their children and their rearing.  

Standard visitation is almost always going to be par for the course.  Judges are not usually willing, absent unusual circumstances, to rule for joint physical custody of children, and the reason is patently clear.  Chancery court judges want finality, they do not want litigants coming back every time someone moves or changes school district. Who can blame them?  They seek an efficient system no more or less than anyone else would. Joint physical child custody is about as difficult to manage as two people sharing a car.  It doesn’t work, at least not well.  

My advice is simple.  If you are the more engaged, loving, capable parent, fight for your children.  Be there to raise them in your light. Do not be intimidated by threats of “joint custody”, it is often just a scheme to avoid child support.  Trust your God-given instincts. If he truly does care enough, joint physical custody is always a consideration. If he is looking to save a few bucks, fight at every corner for your little ones.  (Sorry guys, but this is the way it plays out 90+ percent of the time, and I am one of you). In the end, good will always defeat bad intention, but you have to muster the will to fight for what is right.


Matthew Poole is a 2015 and 2018 N.F.L.A. Mississippi top ten domestic attorney, 2019 Birdeye Top Mississippi Famliy Lawyer, and 2004 Steen Reynolds Trial Competition Finalist.  He lives in Northeast Jackson with his 9 year old son, Lucas.

]]>
Second and Third Marriages, an Uphill Battle /second-and-third-marriages-an-uphill-battle/ Fri, 16 Aug 2019 16:30:09 +0000 /?p=1428 It is relatively well-known that all time divorce rates (overall, not for a specific time period) generally hover around 40-45%.  National statistics indicate that 1st marriages have an all-time divorce rate of 42%, (and 49% in 2018). Second marriages have an overall divorce rate of 60%, and 3rd marriages’ rate of marital dissolution is a staggering 73% since the time this country began taking statistics in the mid 1920’s, and they are slowly creeping upward.  Why is it that subsequent marriages are so difficult, even more than the first? There are never simple answers, but there are several observations that may explain this trend.  

Behind every statistic is an underlying cause (or “root” cause as the older generation used to say), and usually the cause is multifaceted.  Not one single factor can be said to contribute to the phenomenon that first marriages are (believe it or not for those of you seeking divorce) more likely to succeed than a marriage after a divorce or multiple divorces.  The message I would like to convey to those of you seeking a divorce is best said by remembering the old saying “the grass is always greener on the other side”. 

My observation is simple….those who abruptly sever marital bonds are essentially more likely to fail for their inability to stand firm with the partner they chose in youth, therefore complicating their lives.  The complexity of any social interaction is a strong predictor of the likelihood of its failure. Simplicity is not always a bad thing, a concept that is often lost in an era when we seek the newest, most complex, difficult to engineer piece of smart device in our cars, homes, and lives.  We live in a society that prefers to throw the broken away and replace it rather than considering whether a fix is possible.

When I first began my legal career as an attorney in 2004, the head of my division told me on the first day, “Matthew, we follow the kiss method here, which means we keep it simple stupid”. Those words are not only important in litigation, they are tantamount to a lynchpin in marriage.  If you realize that life complexity will likely cause future dramatics, you have already made the first step to saving a broken marriage or making a good decision to re-marry. When people marry and have pre-existing legal obligations from a prior marriage such as child support, alimony, and visitation or custody issues in-tow, they have complicated their lives significantly with a remarriage.  Wiping the slate clean is seldom a possibility because our lives are complex, and so are our relationships.  

In sum, it appears to me that the more social issues one has to deal with, the more likelihood of divorce.  A system that has more moving parts has more parts that may break. Marriage is no different. I want to make very clear that there is always hope, but to any person considering a divorce, please know that it does not get easier the second time around.  If you do divorce and look to be remarried, consider all of the complexities you will both bring to your second or third marriage, lay them all out on the proverbial table with honesty, and have a simple, clear gameplan to deal with the challenges ahead.  It is very much an uphill battle, but it can be won. However, in the end, maybe simple really is better.

Matthew Poole is a Jackson, Mississippi Domestic Attorney and single father.  He was admitted to the Mississippi Bar in 2004.

]]>
The Zen of Marriage and Divorce? /the-zen-of-marriage-and-divorce/ Wed, 14 Aug 2019 20:46:48 +0000 /?p=1425 Years ago when I was in high school, the alternative rock band Bush had a song called “everything zen” that was popular amongst teens and twenty-somethings in an era dominated by the likes of Pearl Jam and Soundgarden.  Its seems like a million eons back to me at this point.  The song was my first introduction to the concept of zen, and I had absolutely no clue what in the world “zen” was.  After studying the zen philosophy and practicing divorce law for close to 2 decades, Bush had it right, everything is zen…even marriage and divorce.

If you want a quick description of my interpretation of zen, it is well summed with an acceptance of a concept embodied in a popular zen quote, which reads “the delusion of humanity is to believe that I am in here and you are out there”.  What is good for your spouse is most likely good for you and your children.  Your well being and their well being are actually, believe it or not, the same thing.  Marriages often fail because of the inability of one or both parties to recognize that their happiness is to the benefit of their spouse.  Many conceptual similarities are found in the reading of the Holy Bible.

This will be a short blog simply because it is confusing.  It requires some degree of taking everything you thought you knew and forgetting it all.  We are all selfish to some extent or another.  Letting go of that is the only thing that will make your marriage last. 

My advice to you if you are considering a divorce is to be the one who sees your equality in marriage.  If you let your guard down, take a leap of faith, remember the words spoken in your vows, you have done all you can and have earned a divorce.  You cannot control others, so start with YOU first.  In the words of Bush, everything is truly, well, zen.  If it does not work and divorce is inevitable, call or email us anytime.

Matthew Poole is a Jackson, Mississippi Domestic Lawyer and a Single Father

]]>
Divorce Quick Guide…..the “Cliff Notes” /divorce-quick-guide-the-cliff-notes/ Mon, 22 Jul 2019 18:16:18 +0000 /?p=1421 Here is a quick guide as to divorce grounds in Mississippi……this list includes all recognized grounds and basic judicial interpretation of those reasons for legal rights to divorcing. Sometimes several are applicable to divorcing spouses.

FAULT-BASED GROUNDS FOR DIVORCE (Miss. Code Ann. 93-5-1)

Natural Impotency……..The Mississippi Supreme Court has held that divorce on this ground was not permitted where a woman’s physical condition made intercourse painful and where she pursued treatment. Sarphie v. Sarphie, 177 So. 358 (Miss. 1937

Adultery………Adultery is “voluntary sexual intercourse on the part of either spouse with a person other than his or her own spouse.” Owen v. Gerity, 422 So. 2d 284 (Miss. 1982). Adultery may be shown by circumstantial proof or a generally adulterous nature, combined with evidence of a reasonable opportunity to satisfy the infatuation of proclivity. McAdory v. McAdory, 608 So.2d 695 (Miss.1992). Direct evidence is not required. No need to have concrete proof!

Being sentenced to a penitentiary………..The statute was, several years ago, amended to read “sentenced to any penitentiary.”

Desertion….willful, continued, obstinate desertion for the marital space or domicile for a period of one year.

Constructive Desertion (as an option where physical desertion is not available)………Mississippi recognizes constructive desertion (where on spouse engages in conduct that forces the other to leave the marital home or renders the continuation of the marriage “unendurable”. (A subjective standard).

Refusal to have sexual relations (as a form of constructive desertion)…… This must be long-standing and without good cause, such as physical pain from intercourse.

Refusal to reconcile (as a form of constructive desertion and/or desertion).

Desertion may occur when on spouse leaves the marital home, then makes a good faith effort at reconciliation and the other spouse rejects the offer. Day v. Day. 501So.2d 353 (Miss. 1987).

Habitual drunkenness……..This one needs little explanation.

Habitual use of opium or “other like drug”….note that the Court of Appeals has broadened the definition of other “like” drugs. Marijuana is now considered a “like” drug by our courts due to the effects of its use.

Habitual cruel and inhuman treatment………The courts state that the cruelty required is not such as merely to render the marriage undesirable or unpleasant. Where both parties file on this ground, the chancellor must determine who is more at fault and grant the divorce to the other party. Hyer v. Hyer, 636 So.2d 381 (Miss. 1994).

Incurable Insanity at the time of the marriage, if the complainant was without knowledge of the insanity.

Marriage to some other person at the time of the purported marriage.

Pregnancy of the wife by another at the time of the marriage, without the husband’s knowledge.

Relation within the prohibited degrees of kindred, (a.k.a. incest).

Defenses to Divorce

Recrimination………Recrimination is the doctrine that if both spouses are guilty of fault, neither is entitled to divorce. Until 1964, this doctrine required that a Chancellor refuse to grant a divorce where both spouses were at fault. Miss. Code Ann 93-5-3 now provides that it is not mandatory that a Chancellor deny a divorce, even though the evidence may establish recrimination.

Insanity……..Insanity may be a defense to divorce based upon adultery, desertion, or cruelty.

Condonation……….Condonation is forgiveness of the marital fault by the wronged spouse, with the understanding that the conduct is not to recur. It is conditional, based upon the “good behavior” of the spouse at fault. If the conduct recurs, the defense is removed. Condonation may result from express forgiveness, or be implied from a resumption of the marital relationship after knowledge of the conduct.

Mere resumption of residence without resumption of sexual relations does not necessarily indicate condonation. Cherry v. Cherry, 593 So.2d 13 (Miss.1991).

Connivance………Connivance is one spouse’s implicit consent to the wrongful conduct of the other. The defense of connivance arises from the fault-based notion of a “wronged” spouse; if the innocent spouse did not object to the conduct, he or she has not been wronged. It typically applies to adultery claims.

Collusion……..Collusion occurs when the parties agree to frustrate the divorce procedure in some way, by creating grounds, or by agreeing not to defend a case, MS Code Ann 93-5-7 requires that for every divorce except those on the ground of irreconcilable differences, the parties must attach an affidavit stating that the action is not the basis of collusion.

Provocation……..This is a bar to divorce where the complainant provoked the conduct to the wrongdoing spouse most likely be used in response to a divorce action based upon desertion. This act allows a stay of proceeding for persons in the military and must be granted unless it can be shown that the applicant’s rights will not be materially affected by the proceeding.

Matthew Poole is a Jackson, MS family lawyer specializing in custody and custody modification matters. He was admitted to the Mississippi Bar in 2004.

]]>
Do This, Not That…Common Custody Mistakes /do-this-not-thatcommon-custody-mistakes/ Thu, 18 Jul 2019 13:46:26 +0000 /?p=1417 “Small minds discuss people. Average minds discuss events. Great minds discuss ideas”.

Eleanor Roosevelt

We receive about 4,500 phone calls a year, plus or minus. In 16 years of practice, my assistants and I have received prospective client intakes from more people than the population of a medium-sized city. Almost all of the calls have a common denominator; an inability to communicate with the “other” parent. It can be easily avoided…here is a basic blueprint. I hope it is helpful.

Every life struggle needs a hero. Why should it not be you? As a single parent, I have seen these challenges first hand. As a domestic lawyer, I have fought these battles for my clients just the same. So here are my thoughts and impressions about how to proceed when child custody is front and center in your life…and your kids’ lives even more importantly. So here is the entree’; what to do and what to avoid. If you follow this advice, parenting still won’t be easy, but life will be better for your children.

DO- Keep open communication with the other parent about childrens’ activities and progress.

DO NOT- Cut off your kids ability to talk to dad/mom or keep them in the dark. Children build self-esteem through belief that they have great parents…two of them.

DO- Remember that children are innocent.

DO NOT- Believe they understand adult problems, emotions, or opinions.

DO- Remember that your child is one-half of you, one-half of another.

DO NOT- Think that your child isn’t hurting because their other parent is not around…even if it is by their own bad choice.

DO- Realize that kids need love, even if the person loving them has serious flaws.

DO NOT- Require perfection from your ex…we all have flaws, but loving of our children is what matters most, your relationship may have been a simple moment in time, after all.

DO- Make sure to tell your kids that you love them, so does dad…or mom…and grandma.

DO NOT- Tell them that they were abandoned, that you are the hero, that you saved them from misery and suffering.

DO- Ask your children what they need from your ex, be it a new toy, a way to communicate, or a simple showing of affection.

DO NOT- Tell your children how you feel about the person who may have broken your heart, damaged your soul.

DO- Make sure your children enjoy being a child…it is a precious thing we all remember dearly.

DO NOT- Let them feel the real life burdens all adults feel every day.

Last thought…if all else fails, always take pride that you did your best and never gave up on the children brought into an imperfect, but beautiful world. Any judge will see you for your strengths first. That is the way it should be. In a custody battle, nice guys and gals finish first.

Matthew Poole is a Jackson, MS family lawyer specializing in custody and custody modification matters. He was admitted to the Mississippi Bar in 2004.

]]>
Necessary Divorce Documents—The Short List /necessary-divorce-documents-the-short-list/ Wed, 10 Jul 2019 22:40:56 +0000 /?p=1413 Some of these may not be applicable, and often are not depending on the specifics of your case. Many of these are also applicable to any custody matter whether ever married or not. Perusing this list will give you a good feel for the things that can rightfully impact the outcome of your domestic case. Better safe than sorry! (Make sure to run through this list with your attorney to determine whether these are needed in your case.) So here they are, in no particular order.

Business income tax returns for past three to five years (federal, state, and local)

Individual income tax returns for the past three to five years (federal, state, and local)

8.05 Financial Declaration

Proof of spouse’s current income (last pay stub- several would be even better)

Proof of your current income (last pay stub- several would be even better)

Bank statements

Loan Documents

Stock portfolios

Benefits statements

Health insurance policies

Real property appraisals

Prenuptial agreement

List of personal property and approximate value, including home furnishings, jewelry, artwork, computers, home office equipment, clothing and furs, etc.

List of property owned by each spouse prior to marriage and value

List of property acquired by each spouse individually by gift or inheritance during the marriage

List of contents of safety deposit boxes

Wills

Living wills

Powers of Attorney

Advance Health Care Directives

Personal property appraisals

Automobile insurance policies

Homeowner’s insurance policies

Life insurance policies

Employment contracts

Completed financial statements

Monthly budget worksheets

Other bills (e.g., school tuition, unreimbursed medical bills, music lessons for children, etc.)

Utility bills

Credit card statements (3 year minimum)

Property tax statements

Mortgages and property tax statements

Stock options

Trusts and declarations

Retirement account statements

Pension statements

Certificates of deposit and account numbers

Separation agreement(s)

Although this is not an exhaustive list, it illustrates the complexity of attempting to sever marital bonds and approximate a baseline for distributing marital assets. Every case has unique nuances, but starting here will give you and your attorney the ability to ensure you are not taken to the cleaner, so to speak. If you need assistance in formulating a pre-divorce plan, I have 16 years of experience and the tools to ensure you are treated fairly every step of the way.

Matthew Poole is a Jackson, Mississippi domestic lawyer who specializes in child custody and divorce, including modifications. He is a two-time recipient of the National Family Lawyer Top 10 Award and is an N.B.I. Certified Domestic Relations Instructor. He lives in Northeast Jackson with his 9 year old son, Lucas.

]]>
Grandparent Visitation…How to Get MORE /grandparent-visitation-how-to-get-more/ Sat, 06 Jul 2019 03:49:26 +0000 /?p=1410 Last summer, we wrote an article about how deployment in a military capacity is quite specifically addressed by our state laws. I am going to republish it in part (it has some minor redactions) below because it is very telling as to the affect of a parent being unavailable to exercise visitation under certain circumstances upon grandparent rights. After the bulk of this somewhat technical article, I will briefly discuss other parent unavailability issues, primarily incarceration of a parent. So, here we go……(this is long, but bear with me, it will be worth it!)

According to the Defense Manpower Data Center (under the Office of the Secretary of Defense), the United States currently has approximately 200,000 active-duty troops deployed across 170 countries.

The Uniform Deployed Parents Custody and Visitation Act (UDPCVA) was designed to resolve child custody and visitation issues that military families may face during a soldier’s deployment, temporary duty, or mobilization.

The UDPCVA is divided into five articles, with the first of these defining the foundational terms for the rest. Most importantly, Article 1 states that a parent’s “residence” is not changed during deployment and that deployment cannot be considered in deciding what is in “the best interest of the child.”

Article 2 discourages litigation on child custody and visitation issues by outlining procedural protections for simple agreements between parties.

This act also assists the UCCJEA* in preventing the issuance of competing orders via Article 3, which covers court procedures and includes the use of electronic testimony and the expedition of hearings.

In addition, this article allows for the designation of visitation rights to a nonparent where the court finds that doing so would be in the best interest of the child and Article 4 explains the termination process for these rights following deployment. Finally, Article 5 summarizes the information within each article.

Mississippi Code § 93-5-34 states that “Custody and visitation procedure upon parental temporary duty, deployment, or mobilization” follows the guideline provisions of the UDPCVA on these issues and answers my earlier hypothetical question regarding who would take care of the children similarly to Article 3. It states that “(4) If the parent with visitation rights receives military temporary duty, deployment or mobilization orders that involve moving a substantial distance from the parent’s residence or otherwise have a material effect on the parent’s ability to exercise rights, the court otherwise may delegate the parent’s visitation rights, or a portion thereof, to a family member with a close and substantial relationship to the service member’s minor child for the duration of the parent’s absence, if delegating visitation rights is in the child’s best interest.”

To answer the second question regarding the end of deployment, the same section of Mississippi Code contains a provision like Article 4 of the UDPCVA, stating that “(3) When a parent who has custody, or has joint custody with primary physical custody, receives temporary duty, deployment or mobilization orders from the military that involve moving a substantial distance from the parent’s residence having a material effect on the parent’s ability to exercise custody responsibilities:

(a) Any temporary custody order for the child during the parent’s absence shall end no later than ten (10) days after the parent returns, but shall not impair the discretion of the court to conduct a hearing for emergency custody upon return of the parent and within ten (10) days of the filing of a verified motion for emergency custody alleging an immediate danger of irreparable harm to the child; and

(b) The temporary duty, mobilization or deployment of the service member and the temporary disruption to the child’s schedule shall not be factors in a determination of change of circumstances if a motion is filed to transfer custody from the service member.

(c) Any order entered under this section shall require that:

(i) The non-deployed parent shall make the child or children reasonably available to the deployed parent when the latter parent has leave;

(ii) The non-deployed parent shall facilitate opportunities for telephonic, “webcam,” and electronic mail contact between the deployed parent and the child or children during deployment; and

(iii) The deployed parent shall provide timely information regarding the parent’s leave schedule.

Ok, so what effect would incarceration have on grandparent visitation in our state? What about if a parent or both are in a mental institution? What if they are, in a coma, God forbid? There is little case law wherein other unavailability issues have been hashed out by our appellate courts, although based on my experience courts are willing to bolster grandma and grandpa’s time for any of the above reasons even though no statute exists as it does for military deployments. My advice is to raise this issue with your attorney, it is a solid argument almost every time.

Matthew Poole is a Jackson, Mississippi Domestic Attorney with 16 years of trial experience. He will be speaking at the National Business Institute on July 18, 2019.

*For more information about this statute, go to our search bar on the home page of our site.

]]>
Parental Alienation…a Syndrome, or Plain Old Contempt? /parental-alienation-a-syndrome-or-plain-old-contempt/ Mon, 01 Jul 2019 16:31:51 +0000 /?p=1408 This question and conversation comes up quite frequently in domestic cases where parents simply cannot agree…on much of anything. Spending excessive legal fees and lost sleep simply may not be worth it if you plan on “firing the first shot”. The battle that ensues often exacerbates the problem, not curing it or the underlying issues…the “root cause”, as it were. Animosity, and expense (even the cheap lawyers are not cheap by most folk’s standards), grows the more DISagreeable you two are willing to be. In the end, some level of compromise is needed…by both …unless you are realllllllly wealthy, even if so I always prefer some level of agreeability, even if on some minor issues.

I would like to point out that there is a strong and decidedly clear legal distinction between what can and cannot be construed as a “syndrome”, and the advice I have may surprise you. Much relates to the simple mistake of overstating your case. Often the softer approach yields stronger benefits …in the long run at least. After 1,300 domestic cases I have learned that this matters from my own prior overzealousness, a mistake many rookie lawyers learn from, quickly.

The term syndrome has been intertwined with alienation of a parent, but there is likely a better way to advance your case without using medical and psychiatric terminology……that being reducing costs by playing the hand you are dealt in a more clever, less physiologically complex format. Syndromes are well defined and often hard to pinpoint (and prove)…..we will get to that later. What is easy to show is mom or dad disparaging the other to the little ones…regardless of the court ordered language (the judgment), it is always intrinsically terrible in the eyes of a Mississippi Chancery Judge without very good reason. Emphasis on VERY.

So here we are, on the life battlefield, somewhat even because of our own decision making flaws. The kids matter so much, we have to see that we are their only guide to a wonderful life, education, and happiness. It can be accomplished. With that said, let’s outline the next blog on this subject, which is slated for 3 weeks away, just after we finish our series on grandparent rights.

The long and short of it is simple …we will explore 2 courses of action and attempt to decipher which fits a particular pattern of facts best. One course requires a ton of medical testimony, the other most likely will not. We will examine what can be done preemptively to avoid the most expensive and stressful path. Stay tuned and we appreciate you very much.

I hope you will check back soon if these issues pertain to your difficult situation…..I can shed a little light, hopefully more. I will start by charting a relatively simple path toward resolution that will not break the bank. A little information is never a bad place to begin any challenge, and God bless our children.

Matthew is a 16 year practitioner of domestic law. He is a single father and is passionate about the role parents play in their children’s outcomes. He speaks at National Business Institute on July 18.

]]>
Pt. One. Grandparent Visitation, the Legislative Mandate…Sometimes /pt-one-grandparent-visitation-the-legislative-mandate-sometimes/ Sun, 16 Jun 2019 23:18:35 +0000 /?p=1404 Like just about any other legal matter governed by state statute, the legislature has carved out certain situations in which grandma and grandpa have a right to see their grandchildren. The right to do so is not without its limitations, nor should it be. The matter is governed by MS Code Annotated section 93-16-3 (2013), and reads as follows;

Section One:

Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child’s parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.

Section Two:

Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:

(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and

(b) That visitation rights of the grandparent with the child would be in the best interests of the child.

Section Three:

For purposes of subsection (2) of this section, the term “viable relationship” means a relationship in which the grandparents or either of them have voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child, the grandparents have had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year, or the child has been cared for by the grandparents or either of them over a significant period of time during the time the parent has been in jail or on military duty that necessitates the absence of the parent from the home.

Section Four:

Any petition for visitation rights under subsection (2) of this section shall be filed in the county where an order of custody as to the child has previously been entered. If no custody order has been entered, then the grandparents’ petition shall be filed in the county where the child resides or may be found. The court shall on motion of the parent or parents direct the grandparents to pay reasonable attorney’s fees to the parent or parents in advance and prior to any hearing, except in cases in which the court finds that no financial hardship will be imposed upon the parents. The court may also direct the grandparents to pay reasonable attorney’s fees to the parent or parents of the child and court costs regardless of the outcome of the petition.

WOW…..talk about a mouthful of undecipherable legislative jargon. I want to cut through said jargon and simply point out a few key points that are applicable to the majority of those who are reading this article. No one cares to read legalise, sometimes not even the writer of this piece who, many moons ago, was not a lawyer. Let’s start by looking at the bones (basic structure) of the statute’s most commonly invoked provision.

The viability of the relationship is paramount to obtaining rights to see your grandkids. Other than the extreme scenarios mentioned in section one (1), which include death of a parent or the termination of their rights as a parent, viability is the cornerstone of the majority of grandparent litigation. As you can clearly see in section 2, the language is not entirely clear until we break down the fundamentals of the English language. The gist of it is that grandparents who have done the following are clearly entitled visitation rights:

1. Given 6 months of financial support to the child/children

2. Had a year of frequent visitation with some overnight visits as well

3. Cared for the child for a large amount of time because parents are not available due to military service or incarceration

The unusual thing that muddies the clarity of this section is that the word “or” only appears between prong 2 and prong 3…..which begs the question “do prongs one and two need to both be met? Or do they function separately?”. Even though less than clear, it appears that the legislature intended the latter…..they simply could have placed an “or” between all three prongs. Welcome to legislative lingual murkiness at its best. If you meet any one of the three prongs, you have demonstrated a viable relationship and your foot is in the door, so to speak. From there, you can begin the process of obtaining one of the most important familial rights available….time with the grandkids.

If you need help with a grandparent related legal issue, I have 16 years of experience dealing with some of the most complex related cases. Telephone consultation is always free of charge.

Matthew Poole is a 2001 Millsaps Second Century Scholar and 2003 Finalist at the University of Mississippi School of Law annual Steen, Reynolds, and Dalehite Trial Competition. He will speak to members of the bar for the National Business Institute on July 18 at the Pearl, MS Marriott.

]]>
A THREE PART SERIES ON GRANDPARENT’S VISITATION /a-three-part-series-on-grandparents-visitation/ Fri, 07 Jun 2019 12:18:57 +0000 /?p=1396 By: Michael Louvier

INTRODUCTION

More and more often, the calls and emails to the Matthew S. Poole law office are originating from concerned Grandparents seeking visitation rights with their grandchildren. This topic was briefly touched upon in December of 2018 (“Happy Holidays to Everyone…Especially Grandparents” posted December 29, 2018); however, I believe this subject matter deserves a much more thorough examination and explanation. To that end, in the following weeks I will submit three (3) separated blog entries dedicated to the issues related to and surrounding GRANDPARENTS VISITATION.

In the initial entry, I will discuss the specific language of Sec. 96-16-3 (Miss. Code Ann. 1972), which is the controlling statute of this matter of law. This installment may, indeed, be somewhat repetitive of the December 29, 2018 entry mentioned above; nevertheless, it is certainly worthwhile to re-examine the elements of the statute as included by the State legislature.

The second installment will explore in more depth the individual elements of the statute. Within that article, I will seek to explain what a “viable relationship” means as it relates to Grandparents and Grandchildren. I will also discuss within the second installment the importance of financial support, both before and after the birth of the child.

The final article in this series will include a discussion of certain and very specific cases recently decided in Mississippi courts. The sudden military deployment, or incarceration, or even the death of a parent can give rise to a grandparent seeking assistance to ensure that their precious grandchildren can/will visit.

There can be no debate that Grandparents visitation rights have become a more commonplace cause of action in Chancery Court. I hope to shed some light on this ever-changing subject while dispelling some myths and misconceptions. I hope that you will visit this site in the upcoming weeks to read this series.

Michael Louvier is a regular contributor to the Matthew S. Poole Website blog. Michael is a graduate of Brother Martin High School, New Orleans, LA (1983), University of New Orleans (B.A. Political Science/English 1988), Mississippi College School of Law (Juris Doctorate 1994). He has been married for 28 years (Tammy) and they have 2 children (Amy, 25 and Nick, 20). Michael and his family have lived in the Jackson, Mississippi area since 1991.

]]>