NEW GUIDELINES FOR GENETIC TESTING TO DISESTABLISH PARENTAGE

May 31, 2011 § 1 Comment

Ever since the supreme court’s ruling in Williams v. Williams, 843 So.2d 720 (Miss. 2003), that a man under a support order who is proven by DNA testing not to be the father of the child can not be required to continue to support the child, the procedure to be followed has been anything but clear.  Up to now, it has been up to each chancellor or county judge to find a way.

Effective July 1, 2011, the law on this point is clarified and specified.  The legislature has created a new MCA § 93-9-10, and amended 93-9-9, 93-9-28, 93-9-21, and 93-11-71, to spell out a uniform, orderly process.  Here are the highlights:

  • If parentage was established through a court order, and the father had been offered genetic testing and declined, he will not be granted the relief of disestablishment of parentage.
  • If parentage was established by the father signing the birth certificate, he will have one year within which to request genetic testing.  After that, he can not contest parentage except on a showing of fraud, duress or material mistake of fact.  Current law allows only 60 days to contest parentage.
  • If parentage was established because the parents were married at the time of the birth, the legal father will be allowed to petition for genetic testing so long as he did not continue to hold himself out as the father after learning that he was not the father, or if he prevented the actual biological father from asserting his parental rights.  This last provision appears to reflect and cover the situation addressed in the case of Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), which was discussed in a previous post.

This is intended only to be a general summary, so you should read the actual provisions when they appear in your legislative advance sheets.

May 30, 2011 § Leave a comment

UPDATED CHECKLIST OF CHECKLISTS

May 27, 2011 § 3 Comments

Proving your case by proving certain factors is a fact of legal life in Mississippi.  I’ve referred to it as trial by checklist.  If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot. 

Many lawyers have told me that they print out these checklists and use them at trial.  I encourage you to copy these checklists and use them in your trial notebooks.  And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use.  Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine).  Good.  If it improves practice and makes your (and my) job easier and more effective, I’m all for it. 

Here is an updated list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

MARK LEVY ON THE LEGACY OF FREEDOM SUMMER

May 26, 2011 § 9 Comments

I posted Monday about Freedom Summer in Meridian.  One of the courageous COFO workers who spent time in Meridian in that summer of 1964, and whom I mentioned in my post, was Mark Levy, who came with his wife Betty to Meridian from Queens College in New York.  

Mark took the time to send me a thoughtful response to my post, and I think it is worth your time to read.  He raises some intriguing points about preserving the story of how the civil rights movement touched and changed Meridian, and how it can be passed on.  There is food for thought here, and a call to action. 

As Mark says, there are the seeds of the beginning of a conversation here.  Will you join the discussion?

__________________________________________________  

 “Ordinary People Doing Extraordinary Things”

Meridian Civil Rights Stories Worth Remembering and Telling

The summer of 1964 touched on people’s lives in Meridian in many different ways.  Chancery Judge Primeaux’s narrative is an important and sensitive step in opening up that conversation.  I’m glad that my old photos of daily life in the Freedom School are a contribution. 

Similarly important was last month’s April 29th recognition by the Mississippi Heritage Trust in Jackson that the Fielder and Brooks Drug Store building and site of the 1964 COFO office at 2505 ½ 5th Street is an endangered but historically significant building in the state, well worth preserving.  The Meridian civil rights story needs to be documented and shown.  The 2505 ½  5th Street site would be perfect not only as an interpretive, but also as an educational center and local attraction.

In addition to the pictures I found in my files, I also found the names of about 250 students – ages 8 to 18, at the time – who attended summer classes in the Freedom School.  We, the volunteer teachers, learned as much from our students that summer as we were able to teach them.  The students were brave and serious young people who took all sorts of risks to come to school.  The former students are now in their late 50s and 60s. Where are they today?  How did those experiences touch their lives?  Who stayed, who left, and who has come back to Meridian?  What contributions have those former students made to their respective communities? 

The decisions for students to attend — or not attend — Freedom School were family decisions.  In 1964, that meant that parents, grandparents, aunts, uncles, etc. all decided to take on some family risk in sending their kids to the Baptist Seminary.  Not only should a history of Meridian tell the story of how a famous folk singer like Pete Seeger performed in Meridian, but it should also be noted that the room was packed with people who took a risk in coming to hear him.  Another footnote to the Meridian civil rights story is that the Meridian Freedom School at the Baptist Seminary had the honor to play host in August to a state-wide convention of young delegates from Freedom Schools all over Mississippi.  The resolutions passed by the students attending reveal a wide range of issues, concerns, and hopes – worth looking at again to see what progress, if any, has been made since those times.

Similarly, in my files, I’ve found the names of about 45 out-of-state volunteers, in addition to Mickey and Rita Schwerner, who participated – at one time or another — in COFO-sponsored community center, voter registration, freedom school, and MFDP work in Meridian during 1964-65.  We stayed in the homes of some very brave local people, rented some living and office space, ate in selected establishments, cashed personal checks in some stores, asked cab drivers and others how to get around, attended some church services and used some churches for meetings.  In the highly charged atmosphere of the times, those ordinary decisions could have life and death – in addition to job – consequences. We, the volunteers, took risks; but the local families and organizations who invited us to come took far more risks than us.

Several of the pictures I found in my files show a Lauderdale County meeting of the Mississippi Freedom Democratic Party where Meridian and county “precinct” and “beat” representatives elected ordinary people as local delegates to go to the national convention in Atlantic City.  The MFDP was formed to show that people prevented from registering in 1964 truly wanted to participate in the electoral system.  The civil rights movement in Meridian involved commitment and participation from both young and old.  The pressures against taking a stand were powerful and frightening.

Does anyone know where Martin Luther King Jr. came to speak in Mississippi during the summer of 1964? I believe he spoke in just two places – and that included speaking at two churches in Meridian.  

The civil rights summer of 1964 should be taken as just one moment in history – with important precedents and ongoing effects.  For example: a) In Meridian, an NAACP chapter existed for a number of years prior, sometimes recruiting with quiet, hand-collection of dues. They had a growing youth membership that later became part of the local COFO movement in 1964. That NAACP chapter continues to exist today. b) The Fielder and Brooks pharmacy, itself, was just one example of black professional accomplishment that had been developing for years in Meridian. c) 1965 and the years thereafter, school, college and public facility de-segregation and voter registration brought other challenges and additional sets of heroes and heroines who stepped forward and deserve to be respected and remembered.  

What does all of this mean today – especially for younger people?  What can research projects in Meridian’s high school, junior college, and senior college contribute to finding, recording, and telling about local people’s hopes, fears, and contributions?  What remains to be improved? What stories do old-timers – both black and white – have to tell of those times in Meridian? How would preserving the Fielder/COFO building help in both saving and using that history? 

I believe that Judge Primeaux has done a great service in his blog starting a new discussion of those questions.

JUDGE RUSSELL REPLACES JUDGE KING ON THE COA

May 25, 2011 § 3 Comments

Governor Barbour appointed Circuit Judge Ermea “E.J.” Russell of Hinds County, effective May 23, 2011, to fill the unexpired term on the COA formerly held by Judge Leslie King, who was earlier elevated to the Mississippi Supreme Court.

Judge Russell, who was Hinds County’s first black, female Circuit Judge, is the COA’s first black, female judge.  She has been a member of the judiciary since her appointment by Governor Fordice in 1998.

The State Judiciary website press release on her swearing in is here.

The appointment continues the trend of excluding chancery judges from the appellate courts.

RENEWING A JUDGMENT UPDATED

May 24, 2011 § 4 Comments

I posted here about the then-new procedure for renewing a judgment that went into effect in 2010.  That provision clarified some old statutory provisions that allowed for renewal of a judgment, but did not specify a procedure.

Effective July 1, 2011, MCA § 15-1-43 is amended to apply only to judgments or decrees that have not yet expired.  The attorney applying to renew the judgment must certify that the judgment has not expired when making the application to renew the existing judgment.

FREEDOM SUMMER IN MERIDIAN

May 23, 2011 § 17 Comments

This year marks the 50th anniversary of the Freedom Riders’ attempts at integration of transportation and amenities across the south.  The arrival of the Freedom Riders in May, 1961 was met with mob violence and police brutality, but it did not end segregation in Mississippi.  The Freedom Riders did, however, pique public awareness across the nation of the inequalities in the south and the need to address them.

In 1962, representatives of four civil rights organizations — SNCC (Student Non-violent Coordinating Committee), CORE (Congress of Racial Equality), NAACP and SCLC (Southern Christian Leadership Conference) — met at Clarksdale and formed a new organization designed to coordinate their efforts and resources in Mississippi.  They called the organization COFO (Congress of Federated Organizations).

The primary concern was to register black voters in Mississippi.  At the time, Mississippi at less than 7% had the lowest percentage of black voter registration in the nation.  Blacks seeking to register to vote were subjected to poll taxes, examinations that they had to pass to become enfranchised, and, when that was not enough, violence and even death.

It was decided that COFO would spearhead a massive, concentrated voter registration and desegregation effort in Mississippi in the summer of 1964.  Volunteers were enlisted from across the country, primarily from the northeast and midwest, many of whom were college students willing to devote a summer to the cause.  The effort came to be known as “Freedom Summer.”

In January, 1964, Michael Schwerner came to Mississippi and opened a COFO office in Meridian at 2505 1/2 Fifth Street.  Schwerner was a member of CORE, and was a native of New York.  He and his wife, Rita, lived in a Meridian apartment, and engaged in various community organizing activities.  The COFO office was the headquarters of the Freedom Summer operation in Lauderdale County.

COFO HQ in Meridian

2505-1/2 Fifth Street

The headquarters occupied the second floor of the Fielder & Brooks Drug Store, an established and respected black business.

The Schwerners opened a COFO-sponsored community center where black children could gather and play games, socialize and access a lending library.

Reading Room

COFO in Meridian also operated one of the several dozen Freedom Schools that were opened across Mississippi that summer.  The Freedom Schools taught citizenship, black history, constitutional rights, political processes, and basic academics.  More than 3,500 students attended the Freedom Schools.  Meridian’s Freedom School was at the old black Baptist Seminary.

Here is the text of a 1964 COFO memo describing the Meridian operation:

Meridian is a city of 50,000, the second largest in the state. It is the seat of Lauderdale county. It is in the eastern part of the state, near the Alabama border, and has a history of moderation on the racial issue. At the present time, the only Republican in the State Legislature is from Meridian. Registration is as easy as anywhere in the state, and there is an informal (and inactive) “biracial committee”, which, if it qualifies, is the only one in the state.

Voter registration work in Meridian began in the summer of 1963 (for COFO staff people, that is), and by autumn, when Aaron Henry ran in the Freedom Vote for Governor campaign, there was a permanent staff of two people in the city. In January, 1964, Mike and Rita Schwerner, a married couple from New York City, started a community center. In Meridian’s mild political climate, the community center there has functioned more smoothly than either of the two community centers which COFO has organized in tougher areas. The center has recreation programs for children and teenagers, a sewing class and citizenship classes. It also has a library of slightly over 10,000 volumes, and ambitious plans for expansion if more staff were available. The COFO staff in Meridian uses Meridian as a base for working six other adjoining counties.

The Freedom School planned for Meridian will have a fairly large facility, in contrast to most places in the state. The Baptist Seminary is a large, 3-story building with classroom capacity for 100 students and sleeping accommodations for staff up to about 20. Besides this, there is a ballpark available for recreation. The school has running water, blackboards and a telephone. The center has a movie projector and screen which it probably would lend. The library lends books to anyone for two-week periods. The question of rent has not been decided for the school. Even if there is no rent, however, we can count on a budget of around $1300, for food for students, utilities, telephone and supplies.

One of the COFO volunteers was Mark Levy, who came to Meridian with his wife, Betty, from Queens College in New York.  He chronicled his sojourn in Meridian with his camera, and his impressive collection of photographs is in the Queens College archives, where you can view it online.

Mark and Betty Levy with students at the Freedom School

A remarkable fact documented by Levy is that the famed folk/protest singer Pete Seeger visited Meridian and played at the old Mt. Olive Baptist Church during Freedom Summer.

Seeger plays for the COFO workers

He performed for the COFO volunteers.  The next photo shows COFO workers and others joining hands to sing along with Seeger.  The young woman at the right with the flowered dress is COFO volunteer Patti Miller of Iowa, who pinpoints the date of Seeger’s performance as August 4, 1964.

Shortly after he arrived, Schwerner was joined by an eager young Meridianite volunteer named James Chaney.  As the summer drew near, other volunteers began to arrive from other places, among them Andrew Goodman of New York.

Despite its moderate reputation on racial issues, there was a dark underside to Meridian and the surrounding area.  The Klan was active, with members in law enforcement and in influential positions.  The Klan had its eye on COFO, and on Schwerner in particular.  They gave him the derisive nickname “Goatee,” for his beatnik-style beard, and spread rumors that he was having an affair with a black woman.

Michael "Goatee" Schwerner

Mississippi’s political leadership provoked the citizenry with accusations that the COFO workers were communists who had trained in Cuba.  FBI Director J. Edgar Hoover made the statement that “We will not wet-nurse troublemakers,” insinuating  that anyone who took matters into their own hands would not be bothered by the feds.

On June 21, 1964, Schwerner, Goodman and Chaney had returned from a training session in Oxford, Ohio, to learn that the Mt. Zion Methodist Church in Neshoba County had been burned by the Klan and some of its members beaten in retribution for allowing a Freedom School to operate there.  The three travelled from Meridian to Neshoba and met with the leaders of the church.  As they made their way back to Meridian, the three were stopped by a Neshoba County Deputy Sheriff and taken into custody on the pretext of a speeding charge.  After they were released from jail in Philadelphia, they were stopped again on Highway 19 South by the Sheriff, who allowed a group of Klansmen to take them to Rock Cut Road, between House and Bethsaida, where all three were murdered by gunfire.  An historical marker is set on the junction of Highway 19 and the road where they were killed.

When the trio did not return to Meridian as scheduled, their disappearance was reported and a manhunt ensued.  Hundreds of naval personnel participated.  President Johnson ordered Hoover to mobilize the FBI, and the agency began investigating, increasing the number of agents in the state from 15 to more than 150.  Posters went up.

The Mississippi Sovereignty Commission investigated and its reports took the prevailing view that the disappearance was a publicity stunt designed to stir up public opinion.  Governor Paul B. Johnson quipped that “Those boys are in Cuba.”

Before long, the searches turned up the CORE station wagon that the men had driven from Meridian.  It had been taken to the Pearl River swamps north of Philadelphia east of Stallo off of Highway 21, where it was burned.

The discovery of the car did not quell the public belief that the disappearance had been staged, but the denial, speculation and ridicule abruptly ended when the three bodies were discovered by the FBI in a dam being built not far from the Neshoba County fairgrounds.  It was conclusive proof of the atrocity.

The FBI autopsy revealed that all three young men had died of gunshot wounds.  The families were not convinced, however, and they demanded and got a second autopsy which revealed that Schwerner and Goodman had indeed been shot and killed.  Chaney, though, had been brutally beaten before being fatally shot.  The doctor who performed the autopsy said that he had never seen such extensive, catastrophic injuries, including smashed bones and damaged internal organs, not even in car or plane wreck victims.

Patti Miller remembers that that the bodies were found on August 4, 1964.  She remembers that date because it was Seeger himself who announced it that night to the COFO workers during his appearance at Mt Olive.

Nineteen men, many of whom were from Meridian, were arrested and charged with the killings, but state charges were soon dropped.  The federal government prosecuted them for violation of Schwerner’s, Goodman’s and Chaney’s civil rights, and seven were sentenced to varying terms up to ten years.  It took until 2005 for one of the defendants, Edgar Ray Killen, to be brought to justice in a Mississippi court.  He was convicted of manslaughter in Neshoba County Circuit Court.

Long before the legal proceedings, though, the families had to bury the dead as a prologue to getting on with their shattered lives.  Schwerner and Goodman were taken back to their homes far away in New York.

James Chaney's family on the day of the funeral

Chaney’s funeral was held in Meridian.  Mourners included his collegues, the COFO workers.  The funeral services took place at four different churches, culminating at First Union Baptist Church on 36th Avenue.

As for Freedom Summer, the results were mixed.  Some voter registration was accomplished in the face of resistance.  People were beaten and killed.  Churches were burned.  Violence across Mississippi escalated.  By any of those measures, it was at least a borderline failure.  But the deaths of Schwerner, Goodman and Chaney galvanized public opinion.  The 1,000 or so COFO workers returned home from Mississippi with eyewitness testimony about the severity of the situation, many of them with scars to corroborate their stories.  The nation realized that the full weight of the law and the federal government would be needed to end the systemic injustice that fostered violence and hatred and shielded murderers.  The political pressure became irresistable, and the 1964 Civil Rights Act passed Congress  and was promptly signed into law by President Johnson.

Freedom Summer was not the end of apartheid in Mississippi, but it did help deal it a mortal blow.

___________________________________

Thanks to Dr. Bill Scaggs for the info about Pete Seeger, Mark Levy and the Freedom School.

Patti Miller, the COFO volunteer mentioned above, has a Keeping History Alive site where I found several Freedom School photos.

“QUOTE UNQUOTE”

May 20, 2011 § Leave a comment

The Dalai Lama and Bishop Desmond Tutu

“If money had been the way to save the world, Christ himself would have been rich.”  —  Phyllis Bottome

“Privilege, almost by definition, requires that someone pay the price for its enjoyment.”  —  Paula Ross

“It is very wrong for people to feel deeply sad when they lose some money, yet when they waste precious moments of their lives, they do not feel the slightest feeling of repentance.”  —  Dalai Lama

BYE-BYE, BASTARDY; HELLO PARENTAGE

May 19, 2011 § Leave a comment

It’s official.  The 19th-century term “bastardy” that appeared in our paternity laws is banished from the statutes, effective March 14, 2011, by edict of the legislature.  Bastardy bows out.

The archaic term will be replaced with the concept of parentage, which is an improvement over the concept of paternity.  All future printings of the code will reflect the change.

In the recent COA case Miller v. Mills, decided May 3, 2011, Judge Maxwell used the term parentage in the context of a paternity action that had been filed in Louisiana, the judgment from which was sought to be enrolled and enforced in Mississippi: “Therefore, Ryan’s filing of a petition to establish parentage, custody, and visitation initiated a ‘child custody proceeding.’”  ¶ 9.  The opinion replaces the term paternity with parentage except where a specific statutory provision is mentioned.  The signal is that the new term is parentage, and that bastardy, paternity and filiation are fading away.

If the statutory language is segueing into the 21st century, wouldn’t it be a good idea for your pleadings to do likewise? “Complaint to Establish Parentage.”  Has a nice ring to it, doesn’t it?

UNDERAGE DRINKING AND CUSTODY

May 18, 2011 § 2 Comments

We are all familiar with the scenario:  Modification case pending and one of the facts supporting the charge of material change/adverse effect/best interest is the fact that mom allowed junior and his friends to have beer at a senior graduation party she allowed to take place at her home.  Dad, who wants the modification, is incensed.  Mom minimizes it, insisting that no one got drunk, no one was allowed to operate a vehicle after drinking, and besides, these are all young men and women who are about to go off to college, and what’s the big deal? 

The Mississippi Legislature passed a bill, effective July 1, 2011, that amends MCA § 67-3-70, to prohibit adults from allowing a party to take place at a private residence or private premises if a minor at the party obtains any alcoholic beverage or beer and the adult knows or reasonably should have known that the minor has done so.  The offense is a misdemeanor punishable by a fine of $1,000 or not more than 90 days incarceration.

The public policy of the state, then, appears to weigh against mom’s position.

I don’t find a case where the issue was squarely before the appellate courts.  I have seen cases at the trial level where the issue is raised among others with respect to custody.  In the case of Self v. Lewis, decided by the COA on May 17, 2011, there is this language at ¶ 40:  “Providing alcohol to a minor is a crime, and the “[c]ommission of crimes by a custodial parent . . . is properly the concern of a chancellor.”  Sullivan v. Stringer, 736 So. 2d 514, 516 (¶14) (Miss. App. 1999).  In Self, the custodial father had a relationship with an 18-year-old woman to whom he served alcohol.  Sullivan involved the crime of cohabitation.

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