THE US CONSTITUTION AT LONG LAST ARRIVES FOR THE LEGAL PROFESSION IN MISSISSIPPI

May 17, 2011 § 3 Comments

Every lawyer sworn in on and after July 1, 2011, will have to swear to support not only the Constitution of the State of Mississippi, but also the Constitution of the United States.  Which means that only 193 years and 7 months after Mississippi was admitted to statehood, the lawyers thereof will now be getting around to swearing (or affirming) to support the national constitution.

Here is the oath prescribed in MCA § 73-3-35 as it is pre-July 1:

“I do solemnly swear (or affirm) that I will demean myself, as an attorney and counselor of this court, according to the best of my learning and ability, and with all good fidelity as well to the court as to the client; that I will use no falsehood nor delay any person’s cause for lucre or malice, and that I will support the Constitution of the State of Mississippi so long as I continue a citizen thereof.  So help me God.”

The code shows the first appearance of the oath among our statues in the 1848 Hutchinson’s Code.  It’s impossible to tell from the currnt code whether the US Constitution ever appeared in the oath, or whether it was deleted.  Legislative history is not included in the judges’ Westlaw subscription — at least mine — so I can’t follow that up.

I am not aware of any requirement that the pre-July 1 lawyers will have to take a new vow vis a vis the US Constitution.  So does this set up the likelihood of warring factions among attorneys with loyalties divided between competing sources of organic law?  Are we to conclude that all pre-July 1 lawyers are exempt from supporting the US Constitution?  No, that would be erroneous, my dear friends.  MCA § 73-7-37 lists among the seven statutory duties of attorneys the duty “To support the Constitution and laws of this state and of the United States,” thus allaying fears of a bar civil war.

In 1945, the president of the Mississippi State Bar, Bidwell Adam, said with respect to the US Constitution, “It is my firm belief and honest conviction that no progress can be made in the direction of undermining this great Constitution … so long as the lawyers of this state and Republic continue to contribute their time, talents, energy, training and experience as its defenders.  Without the lawyers of this state and country, our Constitution would be lost to humanity and decadence would follow.”  Even 66 years ago, the need for lawyers to support the US Constitution was apparent, at least to the bar association.

But why was that particular requirement omitted from the oath and yet enshrined in statute?

The judicial oath of office set out in Article 6, § 159 of the Mississippi Constitution does include both the state and the US Constitution:

“I, ____________, solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all duties incumbent upon me as ____________ according to the best of my ability and understanding, agreeably as to the Constitution of the United States and the Constitution and laws of the State of Mississippi.  So help me God.”

I am sure there is some history behind all of this.  If anybody knows why the US Constitution was left out of the attorney’s oath, I wish you would enlighten us.

THE IMPACT OF SEX OFFENDER STATUS ON CHILD CUSTODY AND VISITATION

May 16, 2011 § 3 Comments

As the roll of registered sex offenders increases, it seems to be a more frequent phenomenon that one or more persons with sex offender status are involved in chancery court proceedings.  Some of the scenarios I have seen include:

  • Mom with custody marries a registered sex offender, triggering a modification battle.
  • Dad is convicted of a sexual offense requiring registration not involving the children of the marriage, and wants visitation.
  • Grandparents have had custody per a Youth Court order and have filed for permamnent custody in chancery, and a parent is a sex offender.

I posted here about the changing registration requirements that will go into effect this summer.

Sex offender status has been found by the appellate courts to have a significant bearing on custody proceedings.  In the case of Burrus v. Burrus, 962 So.2d 618 (Miss. App. 2006), the COA affirmed modification where the mother had cohabited with and then married a man who had been convicted for four counts of indecency with a 14-year-old child.  The children at issue in the modification case were teenagers.  There were other facts that supported the modification.  In a case appealed from my court, the COA had no trouble agreeing that the mother’s remarriage to a registered sex offender who had been convicted of statutory rape of a 15-year-old was a material change that had an adverse effect on the parties’ five-year-old daughter, so that the best interest of the child should be examined.  That case was remanded on other grounds.  A.T.K.v. R.M.K.W., rendered November 24, 2009.

Where the parent has been guilty of sexual abuse of one or more of the children of the marriage, that conduct is a basis for termination of parental rights under MCA § 93-15-103(3)(c), or (f), or (g), or 93-15-103(5).

The restrictions imposed on a sex offender by statute may also seriously impact other decisions affecting the parent-child relationship.  In a case where the father, for instance, has been guilty of a sexual offense requiring registration that does not involve any of the children of the marriage, his or her contact with the children will be affacted by at least these restrictions:

  • The sex offender is subject to the requirements and restrictions of MCA § 45-33-1, et seq.  As a registered sex offender, he or she must remain registered with the Mississippi Department of Public Safety until relieved of that obligation by court order, and the registration requirement will follow the offender to other states.  Anyone can access the database to discover a person’s sex offender status, so it is reasonable to conclude that the children will be made aware of that information by their schoolmates or others.  Moreover, child advocacy groups even post photos of the offenders on billboards where the children and all of their friends, schoolmates and members of the community may see.  The notoriety is almost certain to have some effect on the child’s relationship with the parent.
  • MCA § 45-33-32, provides that if the sex offender volunteers for an organization in which volunteers have direct, unsupervised contact with minors, he or she is required to disclose the conviction to that organization in writing, and the organization is required to notify other volunteers of the disclosure before accepting his or her service.  If the offender is accepted by the organization, the organization must notify the parents or guardians of any minors involved in the organization of the criminal sex offense.  The statute does not limit the requirement to organizations in which the offender would have direct, unsupervised contact with minors, but rather applies to organizations in which any volunteers have such contact.  Thus, the offender may not evade the requirement by limiting his volunteer duties to those that do not involve direct, unsupervised contact with children.  Some organizations to which the requirement pertains would include, but not be limited to, Girl Scouts, Brownies, Campfire Girls, Boy and Cub Scouts, RA’s, sports teams, sports league administration, sports league concessions and activities, gymnastics, dance, church activities of all kinds (not merely those directly involving children, since other volunteers are involved with children), school activities of all kinds, and civic organizations engaged in activities within the statute. In other words, if the sex offender intends to be involved in any of the child’s organized extra-curricular activities, such as coaching sports teams, or cooking out for the youth group at church, or selling concessions for the church or school carnival, all parents and guardians of all children involved will need to be put on notice.  The repercussions for the child are not hard to imagine, and would not likely be in the child’s best interest.
  • The sex offender’s activities in and around public or private pre-schools, elementary schools and secondary schools are greatly restricted.  MCA § 45-33-26 prohibits the sex offender from:  (a) Being present in any school building, on school property, and on any school transportation when persons under the age of 18 years are present; (b) Standing or sitting idly, whether in or outside of a vehicle, within 500 yards of a school or school property, or remaining in or around school property, when persons under the age of 18 years are present.
  • MCA § 45-33-26 (2)(a), does allow a registered sex offender who is a parent or guardian of a child to come onto school property where that child is enrolled for purposes of dealing with that child’s teachers, administrators and records, provided that the sex offender complies with certain notice requirements and remains under direct supervision of a school official.  The statute makes no exception for a person claiming to be in loco parentis, or for the spouse of a parent or guardian, or even for another relative who is a sex offender.
  • A registered sex offender may go onto the property of a school to vote if that is his or her polling place for the specific purpose of voting.
  • A sex offender is prohibited by MCA § 45-33-25 (4)(a), from establishing a residence within 1,500 feet ” … of the real property comprising a public or nonpublic elementary or secondary school or a child care facility.”
  • Under MCA § 45-33-59, if the sex offender is employed, or contracts with a person to provide personal services, in a position that will bring him into “close regular contact” with children, he or she must notify the employer or person with whom he contracts.

Experts in custody proceedings have opined about the dangers of recidivism applicable to various sexual offenses.  In the statutory rape case I had, an expert testified that the danger of a repeat offense was low for that particular crime.  The Mississippi Legislature, however, has made an affirmative finding in MCA § 45-33-21, which states, “The Legislature finds that the danger of recidivism posed by criminal sex offenders and the protection of the public from these offenders is of paramount concern and interest to the government.”  The statement is not dispositive of the issue in and of itself, but it does provide a starting point.

It is well to bear in mind the basic law of custody and custody modification when considering how to deal with the involvement of a sex offender in a custody action.

The polestar consideration in child custody cases is the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).  A change in custody is a jolting, traumatic experience.  Ballard v. Ballard, 434 So.2d 1357, 1360 (Miss. 1983).  Children should not be bounced from one household to another like a volleyball.  Tucker v. Tucker, 453 So.2d 1294, 1298 (Miss. 1984).  The best interests of a child require that the child have some degree of stability in his or her life.  Tucker, at 1297.  Only parental conduct that poses a clear danger to the child’s mental or emotional health can justify a custody change.  Morrow v. Morrow, 591 So.2d 829, 833 (Miss. 1991).

Chancellors are also charged with considering the totality of circumstances. In Tucker, at 1297, the Mississippi Supreme Court held that, “Before custody should be changed, the chancellor should find that the overall circumstances in which a child lives have materially changed and are likely to remain materially changed for the foreseeable future and, of course that such change adversely impacts upon the child.”  If, after examining the totality of circumstances, a material change in circumstances is found to have occurred, the chancellor must separately and affirmatively determine that this change is one that adversely affects the minor child. In re E.C.P., 918 So.2d 809, 823 (Miss. App. 2005).

There is a three-prong test for modification: a substantial change in circumstances of the custodial parent since the original custody decree; the substantial change’s adverse impact on the welfare of the child; and the necessity of custody modification for the best interest of the child. Sanford v. Arinder, 800 So.2d 1267, 1272 (Miss. App. 2001). The test for modification is like a three-legged stool; if one leg is removed or missing, the stool falls.  If one prongs of the test is removed or missing, the case falls.

In Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996), the court stated, ” … we further hold that when the environment provided by the custodial parent is found to be adverse to the child’s best interest, and that the circumstances of the non-custodial parent have changed that he or she is able to provide an environment more suitable than that of the custodial parent, the chancellor may modify custody accordingly.”   The court in Riley added:

“We further hold that where a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment. * * * A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.”

Riley does not mandate that dangerous or illegal behavior be present in order to modify custody, and a chancellor is not required to wait until a child’s safety is in question before removing him or her from an obviously detrimental environment.  Duke v. Duke,956 So.2d 244, 251 (Miss. App. 2006).

A LITTLE TASTE OF YOCONA RIVER INN

May 15, 2011 § Leave a comment

From outside, the Yocona River Inn in rural Lafayette County looked like nothing more than the ramshackle country service station and grocery that it had once been.  Inside, though, there was no mistaking that this modest exterior housed one of Mississippi’s truly great and memorable dining experiences.

Yocona River Inn

Chef Paige Osborne worked her magic in an impressive array of dishes.  The grilled salmon was always superb, as was the catfish.  But the pièce de résistance was unquestionably the beef tenderloin filet with Yocona sauce.  If you never had it, imagine the tenderest, perfectly-cooked full-flavored beef that literally melts in your mouth, topped with a sweet, buttery, pungent sauce that perfectly complements the rich beef taste.  Forgive me for not elaborating more on the menu, but the steaks were so almighty good that I seldom ventured deeper.

As if the food were not enough, the convivial atmosphere in the dining rooms was always just the right complement to the superlative cuisine.  The aromas from the kitchen wafted over all, piquing your appetite almost unbearably.  Diners brought their own bottles, and any that had not already been consumed outdoors awaiting a table was downed with the exquisite food.  It was a homey, relaxed, fun atmosphere where you often ran into folks you knew.

Alas, in 2009, the Yocona River Inn burned to the ground, and although there was an attempt to revive it, including a Yocona in Exile restaurant in Abbeville, north of Oxford, undercapitalized in a shaky economy, the valiant effort failed.  In December, 2010, Ms. Osborne recognized the inevitable and closed her doors for good.  The Yocona River Inn was no more.

Or so it seemed.

This weekend Lisa and I popped into LB’s Meat Market in Oxford to check out the steaks, and discovered the fabled Yocona Sauce for sale.  It is outrageously expensive (if you do the math it comes out to about 90 cents per serving), but I sprung for it anyway.  After all, it’s as close as one can get to the Yocona experience since the restaurant went extinct on us.

The ingredients are modest: Burgundy, molasses, balsamic vinegar, Lea & Perrin worcestershire sauce, black pepper and kosher salt.

You heat the sauce concentrate, whisk in some butter (I know what you’re thinking, but if you’re going to eat a big ole steak, why are you worrying about your arteries in the first place?), and let stand at room temperature.

Voila!

Then you spoon some over your steak and enjoy the phenomenal flavor.

If you shut your eyes for a moment as you savor the delicious flavor, you just might be able to imagine an enjoyable evening with friends at the Yocona River Inn.

Oh, about LB’s … a real meat market that sells some local meat.  A rarity in these mega-market days.  And they sell Hoover Sauce, too.

DICTA

May 13, 2011 § Leave a comment

  • The Web’s First Japanese Pizza Page is guaranteed to whet your appetite with the likes of shrimp, squid, tuna and mayonnaise pizza, or the squid ink pizza, which uses squid ink in lieu of tomato sauce. Yum!
  • And while we’re on epicurian subjects, this article introduces us to the wonders of fermented fish sauce, a cooking staple in southeast Asia.
  • “Take my opinions with a grain assault.”  That’s the first line of the fascinating Holiness Snake Handlers Official Web Site, complete with photos and even videos of this mainly Appalachian religious phenomenon. [NOTE: I fixed this link, which was incorrectly sending you to the wrong site]. If you’d like a deeper look at this sect, Dennis Covington’s 1995 book, Salvation on Sand Mountain, is an engrossing journey inside snake-handling congregations, where the faithful handle deadly poisonous snakes and drink strycchnine and other poisons in a display of their faith.
  • Professor Saul Cornell of Fordham University and Scholar in Residence at Yale Law School has written an interesting piece entitled “New Originalism: A Constitutional Scam,” that is worth a read no matter what your position on this issue of Constitutional interpretation.
  • It takes you 46 minutes each work day to work off your income tax burden, and two hours total each day to pay the whole tax bite.  2011’s Tax Bite in the Eight-Hour Day is here.
  • An article in the New Yorker explores legal issues in the killing of Osama bin Laden.
  • And good news for Scrabble geeks (like me):  The official Scrabble dictionary has approved two new Q words that don’t require a U.

GUARDIAN OR CONSERVATOR?

May 12, 2011 § 15 Comments

What is the difference between an adult guardianship and a conservatorship?  The difference can significantly impact the course that the case takes, as illustrated by the decision in In the Matter of the Guardianship of Frank Lewis, a COA case decided October 5, 2010, that is the subject of this previous post.

I ran across this language from the case of Harvey v. Meador, 459 So.2d 288, 291-92 (Miss. 1984), that provides a general background:

“Initially, it is appropriate to distinguish guardianships from conservatorships.  Guardians may be appointed for minors; incompetent adults; a person of unsound mind; alcoholics or drug addicts; convicts in the penitentiary; persons in the armed forces or merchant swamen reprted as missing; or for veterans; or minor wards of a veteran.

“The guardian is the legally recognized custodian of the person or property of another with prescribed fiduciary duties and responsibilities under court authority and direction.  A ward under guardianship is under a legal disability or is adjudged incompetent.

“In recent decades there has been an increased number of older adults in our society who possess assets in need of protective services provided through guardianships.  But modification of laws have broadened the definition of persons for whom assistance can be afforded by the courts, and such statutes do not restrict such protection only to the adult incompetent or insane.

“Noting that trend in our society, the Mississippi Legislature incorporated into law in 1962 the conservatorship procedure for persons who, by reasons of advanced age, physical incapacity, or mental weakness, were incapable of managing their own estates.

“Thus the Legislature provided a new procedure through conservatorship for supervision of estates of older adults with physical incapacity or mental weakness, without the stigma of legally declaring the person non compos mentis.  This additional procedure was intended to encompass a broader class of people than just the incompetent.

“Therefore, the distinguishing feature of conservatorship from guardianship lies in part in the lack of necessity of an incompetency determination or the existence of a legal disability for its initiation.  After establishment of such protective procedures, the duties, responsibilities and powers of a guardian or conservator are the same.  However, the status of the ward in each arrangement is different.”

How the status of the ward is different under each arrangement is a matter for another post.

WHERE IS THE BEST PLACE TO HIDE SOMETHING FROM A LAWYER? [HINT: IT’S IN THE RULES]

May 11, 2011 § 4 Comments

When you file an objection to a subpoena duces tecum, do you still need to produce the things sought under seal?  Do you need to track down a judge for an emergency hearing on the objection?  What do you need to do to protect your client after you file the objection?

Nothing.  MRCP 45(b) allows the objection to stop the process until the party issuing the subpoena takes further action.  It’s right there in the rule, in black and white.

This particular operation of MRCP 45(b) is the subject of an informative post by Anderson, who was apparently faced with the task of educating three other lawyers on the point.  Philip Thomas follows up on his blog with notes about a couple of other nuances of the same rule that you should know about.  I would repeat them here for you, but that would only make you less likely to look at the rule yourself, which would only punctuate Thomas’s point that most lawyers do not bother to read the rules.

Lawyers do not bother to read the rules. One of my pet peeves. Just the other day I had a lawyer in my office who proudly produced proof of certified mail service of process on a state department.  No one appeared for the defendant agency.  That may be, I pointed out, because MRCP 4(d)(5) requires process “Upon the State of Mississippi or any one of its departments, officers or institutions, by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi.”  Really?  Didn’t know that.

In my elementary school days, I had as a teacher a vicious nun who would rap you in the back of the head with a ruler if you didn’t tow the line.  One thing she made us do was to keep an open dictionary on the desk before us as we read a book.  Every time we encountered an unfamiliar word, we were required to look up the word or have inch-marks imbedded in our scalps.  At first I complied to avoid the pain.  Over time, however, I found myself doing it voluntarily, and by the time I reached high school age, I had amassed quite a vocabulary.

Maybe as a lawyer you should keep your rule book on your desk — open — and every time you have to issue process, or file a motion to compel, or file a counterclaim, or a 12(b)(6) motion, you can glance at the rule and refresh your recollection.  And if you really want to make an impression, you could rap yourself in the back of the head with a ruler every time you fail to do it.  Okay, I’m kidding about that last part.

Of course, my point applies to the statutes and cases, too.  How often do you glance back at the applicable statute before you file that petition to sell property in an estate, or close a guardianship?  How often do you go back and re-read exactly what it was the supreme court said in Riley v. Doerner before you try that custody modification, or Ferguson before you try that equitable distribution case?

I am convinced that the most significant difference between the good lawyers and the mediocre-to-poor ones is that the good lawyers take time to try to do it right, making sure they know the rules, statutes or cases behind what they are doing.  Which category will you place yourself in?

THAT CERTAIN “JE NE SAIS QUOI”

May 10, 2011 § 2 Comments

If you’ve ever tried a case with a LEP, you know just how excruciatingly difficult it can be without the right help.  Excuse me?  You don’t know what a LEP is?  Well, a LEP is neither contagious nor a Biblical outcast.  LEP is jargon for a person who has Limited English Proficiency.  That is, they have trouble speaking and understanding English, which, naturally, is quite an impediment in a Mississippi court.

In my experience practicing law, I tried a number of cases in Choctaw Tribal Court where every case involved one LEP, and sometimes a full cast of LEP’s.  You would ask a question and the designated interpreter would repeat the question in Choctaw to the witness.  The interpreter would listen studiously as the witness droned on in reply for several minutes, whereupon the interpreter would say earnestly, “He said no.”  I have always suspected that something had been lost in the translation.

I tried a memorably hilarious case once against a local attorney who later gave up the law to become rich as a stockbroker, probably in no small part due to this case.  My client was a more or less LEP European-trained, ethnic Chinese physician from Indonesia, and the opposing party was a completely LEP Chinese PhD student from Beijing who was studying at the University of X___g__n__c__ao (I never got that one straight, which I guess makes me a LCP).  She had come to this country to attempt a reconciliation with her husband, my client, but the attempted reconciliation unhappily failed, propelling them to court that day for a temporary hearing.  Our “translator” spoke and understood one particular strain of Chinese, and neither party spoke or understood the same strain.  To compound the comedy, it was the court reporter’s first, nervous day on the job — straight out of the Ole Miss court reporting school.  She almost broke down in tears when my client was asked where he graduated from medical school, and in his proudest Chinese-flavored German, he responded “Heinrich Heine Universität, Universitätsklinikum, Düsseldorf, Chermany.”  Who wouldn’t be proud of that?  We stumbled along until the trial’s dramatic crescendo, which occurred when the opposing party futiley tried repeatedly to describe how her piece-of-junk car would not work.  She finally blurted out in LEP exasperation, “Cah no vroom,” while twisting her right hand in a key-in-ignition fashion.  We all pretty much understood that, LEP or no LEP.  In fact, it was the most understandable thing any witness or interpreter said that day.

All of which brings me at last to my point. The Administrative Office of Courts (AOC) is seeking comments on proposed rules for use of interpreters in the courts.  The goal is state-wide credentialing of certified interpreters, with a roster available for all chancery, circuit, county, youth, municipal and justice courts, as well as grand juries.  You can access the announcement and links here.  As for the philosophy behind it, AOC said:

      “It is essential that any communication barrier be removed, as far as possible, so that these limited English proficiency (LEP) individuals are placed on equal footing with similarly situated persons for whom there is no such barrier. Interpreters are highly skilled professionals who fulfill an essential role in the administration of justice. As officers of the court, interpreters help assure that LEP individuals enjoy equal access to justice and that court proceedings and court support services function efficiently and effectively.”

Translation:  “We need qualified interpreters when we have persons in court who do not speak or understand English well.”

Based on my years in chancery court, I am wondering whether we need also to have interpreters for our own fellow citizens who do not speak any recognized foreign tongue, but are LEP’ed in their ability to speak or understand plain English.  But I guess that’s a project further down the road, to be tackled after we have dealt with the aliens in our midst.

TENDER YEARS DOCTRINE CONTINUES TO WANE

May 9, 2011 § 4 Comments

It is an ancient principle embedded in Mississippi family law that if the mother of a child of tender years – especially a female – is fit, then she should have custody. Kyzar v. Kyzar, 248 Miss. 59, 157 So.2d 770 (1963); Brown v. Brown, 237 Miss. 53, 112 So.2d 556 (1959); Boswell v. Pope, 213 Miss. 31, 56 So.2d 1 (1952); Johns v. Johns, 57 Miss. 530 (1879).  The principle came to be known as the “tender years doctrine,” and over time it grew into a rule, eventually extended into to the generally-accepted wisdom that the mother was favored in child custody disputes.

As late as the 1980’s, the tender years doctrine exerted its hegemony.  One example is the remarkable case of Buntyn v. Smallwood, 412 So.2d 236 (Miss. 1982), in which the supreme court reversed a chancellor’s denial of a mother’s modification of custody where the mother had remarried and stabilized her situation and the father, who had custody from the divorce, worked offshore.  From the opinion, it appears that the father’s work situation had not changed at the time of the modification, but the mother’s situation had improved.  A Kramer vs Kramer-type situation, for sure.  The case illustrates just how strong a magnetic force the tender years doctrine exerted on our jurisprudence.

An early chink in the doctrine’s armor appeared not long after Smallwood in the case of Cheek v. Ricker, 431 So.2d 1139, 1145 (Miss. 1983), where the court stated that ” … it hardly seems rational that the age of a child should per se lead to any particular result.” 

Then came Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983), which enunciated the rule that the polestar consideration is the best interest of the child, and that a factor such as the age of the child was to be weighed along with other specified factors against what would be in the child’s best interest.  Even Albright, however, expressly rejected the idea that the tender years doctrine should be discarded.

In the years since, the doctrine has weakened further.  In Mercier v. Mercier, 717 So.2d 304, 307 (Miss. 1998), the court held that a child is no longer considered to be of tender years when it can be cared for by others.  In Copeland v. Copeland, 904 So.2d 1066, 1075 (Miss. 2004), the supreme court upheld the decision to award custody of a two-year-old boy to his father.  In Lee v. Lee, 798 So.2d 1284, 1289 (Miss. 2001), the court stated that a child four years of age was no longer of tender years.  In Torrence v. Moore, 455 So.2d 778, 780 (Miss. 1984), the court found that a seven-year-old child was “long past” tender years.     

In 2000, MCA § 93-5-24 was amended to add this language as subsection (7):  “There shall be no presumption that it is in the best interest of a child for the mother to be awarded either legal or physical custody.” 

Most recently, on May 3, 2011, the doctrine continued its fade in Kimbrough v. Kimbrough, at ¶ 37-38, where the COA upheld the chancellor’s finding that the Albright factor of the “Age, health and sex of the child” favored neither party.  The judge found that the parties’ five-year-old daughter was not of tender years and awarded custody of the child to the father.  The mother argued that the child was of tender years, and that she should have been favored.  The COA rejected her argument and upheld the chancellor’s award.          

If the tender years doctrine is not dead, it is at least moribund.  If you are still advising your clients that the mother is favored in custody actions, you need to do a little reading and re-examine your position.  Custody will be awarded to the fit parent who prevails on the Albright factors.

MC LAW HITS A HOME RUN

May 6, 2011 § 1 Comment

Kudos to the MC Law School for a project that is a significant contribution to the bench and bar in Mississippi.

Click on this link to access the Mississippi College Judicial Data Project, an impressive site where you can access information about Mississippi appellate cases, including:

  • Videos of oral arguments.  Currently on the supreme court web site, only recent arguments can be accessed, and they are taken down to make room for more current sessions.  The MC web site will archive all those arguments, so that you may view them.  Imagine being able to learn the kinds of questions and interaction with the court that you can expect in a similar case, or to observe the kinds of inquiries that your same panel has made in other cases.
  • Briefs.  You can get copies of briefs in .pdf format to download, print and use.  This is the kind of information that has been only accessible through costly online legal research programs that many lawyers can not afford.  Briefs can help you with your own appeals and even serve as a resource for your trial work.
  • Statistics.  Through a sophisticated search engine offering more than 30 search options, you can research questions such as:  how many times has Justice Kitchens concurred with Chief Justice Waller?; or how many trials presided over by Chancery Judge David Clark in Scott County have been affirmed by the court of appeals?; or even how many summary judgment rulings by Chancellor Jerry Mason have been affirmed by the court of appeals but reversed and remanded by the supreme court?  The results are returned in the form of a table listing the decisions reflecting the response, and the cases listed can be accessed by clicking on the case name.  It’s an incredibly agile and sophisticated program that yields detailed, accurate results.

The project is in the process of being updated.  The video archive is current from 2004 to 2011.  The brief archive is current from 2007 to 2011.  The statistics are current from 2007 to 2011.  The goal is to take all of the accessible information back through 2000.

There are several other pages of information that you might find useful.

Mississippi College School of Law deserves a round of applause for this powerful and useful addition to the array of Mississippi trial and appellate resources.

A JURISDICTIONAL BOOMERANG

May 5, 2011 § 1 Comment

We sometimes are not as attentive to the requirements of the UCCJEA as we should be.  Take the following case, for example:

Delisa Miller and Ryan Mills began living together in Madison Parish, Louisiana, in 2005.  They had two children, a son born in 2007, and a daughter born in 2008.  Ryan went to prison in December 2008, at which time Delisa and the children moved to Vicksburg, Mississippi, according to Ryan’s pleadings. 

On July 14, 2009, after he was released, Ryan filed pleadings in Louisiana to establish parentage, for custody, and for visitation.  His pleading recited that, although Delisa was residing in Mississippi, her domicile remained in Louisiana.  On July 23, 2009, Delisa filed a petition for custody in the County Court of Warren County, Mississippi.  Her case was referred to Warren County Youth Court, which dismissed it on the basis that Louisiana already was exercising jurisdiction.   

On August 3, 2009, the Louisiana court held a hearing in Delisa’s absence, finding that it had jurisdiction under Louisiana’s long-arm statute, and granted Ryan visitation.

Ryan filed pleadings in the Chancery Court of Warren County seeking to register the Louisiana judgment, which Delisa opposed, and the chancellor ruled on October 23, 2009, that the judgment was lawful and binding, and that it should be registered and enforced.  Delisa appealed.

In Miller v. Mills, decided May 3, 2011, the COA noted that the Mississippi courts are required by MCA § 93-27-203(l) to enforce another state’s child custody determination if the other state “exercised jurisdiction in substantial conformity with [the UCCJEA].”  The COA held that the record did not support a finding that Louisiana was the children’s home state within the meaning of the UCCJEA at the time that Ryan commenced his Louisiana action, and that, as a result, Louisiana did not exercise jurisdiction in substantial conformity with the UCCJEA.  The court held that registration of the Louisiana order in Mississipi was void.  The trial court’s ruling was reversed and rendered.

Ryan had argued that, since the Louisiana court had obtained jurisdiction over Delisa through that state’s long-arm statute, he had the right to proceed.  Judge Maxwell’s opinion brushed aside that argument and pointed out that UCCJEA jurisdiction is subject matter jurisdiction that may not be waived or conferred by consent.    

This case stands for the proposition that the UCCJEA’s provisions are absolutely jurisdictional, and unless a jurisdictional basis exists pursuant to its provisions, jurisdiction may not be acquired by some other means.

I have seen many cases where the lawyers take a somewhat relaxed approach to the UCCJEA requirements.  You do so at your own peril.  The case you thought you had dealt with so deftly could come boomeranging back in quite unwelcome fashion.

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