PARENTAL LIABILITY

January 26, 2011 § 3 Comments

When a child commits a tort, can the parents be held responsible to pay the damages?

MCA § 93-13-2 sets out the rules for when the parents of a minor will be held liable for the acts of the minor, and the limits on that liability.  Here are the principal points:

  • The statute states that “Any property owner …” may recover damages.  Does this limit the scope of the statute to actions for damage to property, or are personal injury claims included?  It would seem that damage to property is what was contemplated, since subsection (1) specifically refers to any act of the minor that ” … damages or destroys property belonging to such owner.”  Subsection (2) refers to ” … damages [not injuries] to [sic] which such minor or other person would otherwise be liable.
  • The limit of recovery is $5,000, plus “necessary court costs.”
  • The statute applies to minors under the age of 18 and over the age of 10.
  • The act of the minor must have been malicious and willful.  Purely negligent acts or mere carelessness are not included.
  • The statute does not apply to a parent whose “parental custody and control” have been removed by court order or decree.  Thus, where the child’s custody is awarded by court order to one parent, the non-custodial parent will not be subjected to liability.  This raises an interesting point when the child commits a maliciously destructive act while on visitation with the non-custodial parent, since visitation time is tantamount to custodial time.  Cox v. Moulds, 490 So.2d 866, 870 (Miss. 1986).  The language of the statute appears to hinge on the parental control, so that the parent who should be in control of the child at the time of the damage is the parent who will face liability.  When the child is placed by court order in the control of a non-parental guardian, that guardian will be the one to deal with the liability issue.
  • The statute does not limit any other recovery under any other applicable provision of law. 
  • The purpose of the law is both to authorize recovery from parents in situations where they would not otherwise be liable, and to limit their liability.

The act is in derogation of the common law, and therefore must be strictly construed.  I do not find any case law construing this statute or interpreting its applicability.

A FEW RANDOM THOUGHTS ABOUT JOINT CUSTODY

January 21, 2011 § 3 Comments

  • An award of joint legal custody was reversed where the reason assigned by the trial judge was to allow the mother to participate in and keep up with the children’s activities.  Joint legal custody requires the parties to confer in the joint decision-making about decisions affecting the children’s lives.  Concern for access to information does not warrant award of joint legal custody.  Lowrey v. Lowrey, 25 So.3d 274, 296 (Miss. 2009). 
  • The trial court is not required to consider the Albright factors in determining whether to award joint legal custody, since they apply only to physical custody.  Palculict v. Palculict, 22 So.3d 293, 297 (Miss. App. 2009).
  • MCA § 93-5-24(2) provides that the trial court in an irreconcilable differences divorce may award joint custody only “upon application of both parents,” but in all other cases the court may award joint custody “upon application of one (1) or both parents.”  But where the parties have consented to an irreconcilable differences divorce and agreed for the trial court to adjudicate custody, the chancellor may award joint custody.  Crider v. Crider, 904 So.2d 142, 148 (Miss. 2005).  
  • “There are … significant legal consequences attached to each form of custody.  If parents accustomed to joint decision-making disagree, the parent with sole legal custody has authority to make unilateral decisions regarding the child.  A move by one of two joint custodians triggers an Albright analysis to determine which parent should take sole physical custody.  In contrast, when a parent with sole custody relocates, the relocation is not in itself a reason to modify custody.”  Bell, Mississippi Family Law, § 5.04[4].
  • Joint custdy is inappropriate where the parties are unable to communicate and cooperate.  Lewis v. Lewis, 974 So.2d 265, 266 (Miss. App. 2008).   

FINAL DECISION-MAKING AUTHORITY IN JOINT LEGAL CUSTODY

January 6, 2011 § 3 Comments

MCA § 93-5-24 provides that the joint legal custodians shall “share the decison-making rights, the responsibilities and the authority relating to the health, education and welfare of a child,” and “An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with each other in the exercise of the decision-making rights, responsibilities and authority.”

The problem is that the statute does not delineate exactly how final decisions will be made after the conferring is done.  Common sense tells us that there can not be a committee of two.  What if, for instance, the father demands that the child attend military school in Chattanooga, but the mother is just as adamant that the child attend Lamar in Meridian?  Or how about if one parent believes that the child should have botox injections for cosmetic reasons and the other is opposed?  Or one parent takes the position that the child should take ADHD medication, and the other is opposed to medication?  Or one wants the child to have the usual childhood immunizations and the other does not out of fear of autism.  The statute does not inform us how those ties or any others, some involving important decisions about the children, will be broken.

In this district, both chancellors take the position that joint legal custody is not in the best interest of the child and will not be approved unless there is some form of a tie-breaker provision. 

Some lawyers try to skirt the problem by providing in a PSA that the parent with physical custody at the time will have final decision-making authority.  This approach does not work, however, because the effect of life-affecting decisions like those enumerated above carry over into the other parent’s custodial time in shared physical custody arrangements.

Most PSA’s address the issue by providing that one parent or the other will have final decision-making, or tie-breaking, authority.  That still means that both parents must confer, consult and participate in the decision-making process as required by the statute.  Although the physical custodian is the most logical tie-breaker, I had a case once where the mother had sole physical custody and the parents shared joint legal custody of a paraplegic child.  They agreed that the father would have final decision-making authority because he would continue to be responsible to transport the child to and from school, to and from all of his activities and family and church events, and to and from Birmingham for numerous and frequent medical visits.    

It is okay to allocate responsibility between the parents, as, for instance, where the father is going to pay for private school, and the parties agree that he will have final decision-making authority as to the child’s education, with the mother to make final decisons as to the health and welfare.  In such a case, it would be wise to define exactly what the scope of authority would be as to education, since the three realms of decison-making overlap somewhat.  For instance:  “Father shall have the final decision-making authority as to which school the child will attend in Lauderdale County so long as both parties reside therein; all other decisions will be finally decided by the mother.”

In cases where one parent is the sole physical custodian, the case of Clements v Young, 481 So.2d 263, 266 (Miss. 1985), offers a little help and guidance.  In that case, the Mississippi Supreme Court stated:

“Our law necessarily provides that the award of custody to a parent incident to a separation or divorce vests in the custodial parent the right to make, and responsibility for making, day to day decisions regarding the care and welfare of the children. Except as otherwise agreed by the parties in writing, the custodial parent may determine the child’s upbringing, including his education and health and dental care. Such discretion is inherent in custody. It is vested in the custodial spouse though not spelled out in detail in a separation agreement or custody decree.”

Clements does not address what happens where the parties “otherwise agree in writing,” as where they agree to joint legal custody with one to have sole custody.  Have they “otherwise agreed” that the sole physical custodian will no longer have final decision authority, or is it presumed that the physical custodian will have it?  Clements involved other issues and so is distinguishable on its facts.  In my opinion, the best practice where one parent is the physical custodian and they share joint legal custody is simply to name the final decision-maker in the PSA.          

An important reminder:  I posted before about the danger of relying on the term “primary physical custody.”  Designation of one parent as “primary” physical or legal custodian has no legal meaning whatsoever, and will not impart decision-making authority.

THE LATEST ON CUSTODY OF OUT-OF-WEDLOCK CHILDREN

December 17, 2010 § Leave a comment

In the case of Reed and Daniels v. Fair, decided December 14, 2010, the court of appeals once again addressed the issue of the proper legal standard to apply when the unmarried parents of a child born out of wedlock face off over custody of the child.

Theresa Reed and Marvin Fair had a relationship that resulted in the birth of their son, M.T.F, in 1997. The parents never married each other, but Fair did acknowledge paternity. For most of the next twelve years, the child lived with his maternal grandmother, Irene Daniels. While in the grandmother’s care, M.T.F. was molested by another grandson.

Fair filed an action for custody, and Reed and Daniels counterclaimed in turn for custody. At trial, Reed and Daniels argued that, because of the length of time that M.T.F. was in Daniels’ care, the court should apply a modification standard. The chancellor found that, since there had never been a judgment awarding custody, it was not proper to apply a modification standard, and he adjudicated the case by application of the Albright factors. The chancellor awarded custody to Fair, and both Reed and Daniels appealed, complaining that the court should have analyzed the case as one for modification.

Justice Maxwell wrote the majority opinion, and it is such a concise exposition of the law on the subject that I have excerpted it here:

Generally, in an initial custody proceeding, the parties are “deemed on equal footing,” and custody is awarded based on the best interest of the child under the Albright factors. See Brown v. Crum, 30 So. 3d 1254, 1258 (Miss. App. 2010) (quoting Law v. Page, 618 So. 2d 96, 101 (Miss. 1993)).

But there are situations where certain legal presumptions prevent the parties from having an equal claim to custody. For example, the father of a child born out of wedlock would not stand on equal footing with the mother where the father does not acknowledge the child as his own. Hemphill-Weathers v. Farrish, 779 So. 2d 167, 172 (Miss. App. 2001). Absent other factors, all jurisdictions recognize that the mother of a child born out of wedlock, if a suitable person, possesses the primary right to the child’s custody where the father has not acknowledged the child. Smith v. Watson, 425 So. 2d 1030, 1033 (Miss. 1983), at 1033 (citing N. Hand, Jr., Mississippi Divorce, Alimony and Child Custody 271 (1981) (“upon acknowledging the child as his own, the father has an equal claim . . . to the parental and custodial rights of the child”).

While chancellors must also consider the Albright factors in modification proceedings, “the movant carries a heavier burden[.]” Romans v. Fulgham, 939 So. 2d 849, 852 (Miss. App. 2006). In a modification action, the party seeking custody must prove that since the original custody award, there has been a material change in circumstances adverse to the child, and a modification in custody would be in the child’s best interest. Tucker v. Tucker, 453 So. 2d 1294, 1297 (Miss. 1984).

In Law, the Mississippi supreme court held that “The ‘material changes’ standard used in modification proceedings is dependent on there being a prior determination of custody.” 618 So. 2d at 101. Relying on Law, the court of appeals has consistently held that where no previous custody determination has been made, the relevant standard is the child’s best interest under the Albright factors — not a “material change” modification standard. See Brown, 30 So. 3d 5 at 1258; , 990 So. 2d 774, 776 (Miss. App. 2008); Romans, 939 So. 2d at 853; C.W.L. v. R.A., 919 So. 2d 267, 271 (Miss. App. 2005); S.B. v. L.W., 793 So. 2d 656, 659 (Miss. App. 2001).

The court of appeals also rejected the theory that a modification standard applies by virtue of one parent’s receipt of child-support payments. Brown, 30 So. 3d at 1257-58; Romans, 939 So. 2d at 852.

The majority opinion rejected the appellants’ argument that because Fair had waited longer than parties in other court of appeals decisions to seek custody, that this case should be distinguished from the earlier decisions. The court refused to establish a “length of time” rule because (1) the resulting legal standard would likely be nebulous, and (2) no case law, including Mississippi supreme court precedent, supports hinging the applicable legal standard solely on the timeliness of the request for custody. See Romans, 939 So. 2d at 853. The majority declined to create a new rule or to overturn the established line of authority. Nonetheless, the opinion emphasized that its holding in no way prevents chancellors from considering the length of a parent’s delay in asserting a claim for custody when determining the best interest of the child. See Brown, 30 So. 3d at 1259 (“Although delay in asserting custody may be a factor to be considered in determining the best interest of the child, it is not the controlling factor.”).

So the state of the law at this point is that a father who acknowledged an out-of-wedlock child as his own stands on an equal footing with the natural mother in a custody determination, which will be treated as an original proceeding, and not as a modification.

A CHECKLIST OF CHECKLISTS

December 15, 2010 § Leave a comment

Proving your case by proving certain factors is a fact of legal life in Mississippi.  I’ve referred to it as trial by checklist.

Here are the checklists I’ve posted (you can click on the links to get to them):

Attorney’s fees.

Adverse possession.

Child custody.

Grandparent visitation.

Equitable distribution.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

Income tax dependency exemption.

Those are all of the checklists of which I am aware.  If you know of others, please let me know and I will add them to the list.

I also posted a checklist for closing an estate, but it’s a procedural cheklist rather than a substantive checklist.

FAMILY VIOLENCE AND ITS IMPACT ON VISITATION

December 9, 2010 § 1 Comment

We’ve already discussed the impact of family violence on the court’s adjudication of custody here and here.  Family violence also directly affects visitation.

MCA § 93-5-24(9)(d)(i) provides in part:

“A court may award visitation by a parent who committed domestic or family violence only if the court finds that adequate provision for the safety of the child and the parent who is a victim of domestic or family violence can be made. “

The statute sets out specific actions that the court may take in such a case.  The court may:

  1. Order the exchange to take place in a protected setting;
  2. Order supervised visitation;
  3. Order counselling or an intervention program for the perpetrator;
  4. Order the perpetrator to abstain from possessing or consuming alcohol or controlled substances before and during visitation;
  5. Order the perpetrator to pay a fee for supervised visitation;
  6. Prohibit overnight visitation;
  7. Require a bond for the safe return of the child; or
  8. Impose any other conditions for the safety of the child, other parent or other family members.

The court may order that the residence address of the custodial parent or child be kept confidential.

The court may not require a victim of domestic or family violence to attend counselling, individually or with the perpetrator, as a condition of visitation.

“YOU MAKE ME ASHAMED TO BE A HUMAN BEING”

December 6, 2010 § 1 Comment

Any lawyer who practices family law for any length of time learns quickly that some clients can be scarily delusional, or nearly so, and that managing their expectations can be an impossible task.

Here is an animated video of a lawyer-client interview about child custody that will have you family lawyers in tears — either from laughing hysterically or from regretfully recognizing yourself and/or a client in the exchange. 

WARNING:  This video includes some pretty rough language, and is not safe for work or appropriate for children.

Thanks to attorney Rhae R. Darsey and Municipal Judge Robert D. Jones for this.

MORE ON FAMILY VIOLENCE AND CUSTODY

December 2, 2010 § 2 Comments

The court of appeals on November 30, 2010, upheld a chancellor’s decision that the statutory presumption against awarding custody to a party who has a history of family violence did not apply in the facts of the case.  I previously posted about the presumption and its effect on custody here.

In Brumfield v. Brumfield, which was before the chancellor on remand for specific findings on the Albright factors, there was evidence that the husband, Alex, who was awarded custody, had argued with his wife Heather, grabbed her, dragged her outside, threw her to the ground and hit her twice with a belt.  The parties reconciled after the event, although they later separated again.  The chancellor found the episode to be “isolated,” and insufficient to trigger the presumption.  A majority of the court of appeals, by Justice Myers, agreed with the chancellor’s finding that the record established only the single incident of domestic violence.

Justice Carlton, in a written dissent, reached deep into the record and found a document purporting to be a “sentencing order” from the Walthall County Justice Court on a charge of stalking and telephone harassment brought against Alex by an unnamed person.  The document stated that the charges had been remanded to the file.  Justice Carlton took the position that the document supported a finding of a pattern of family violence, even though the document did not appear to have been introduced into evidence, and there was no authentication.  The majority opinion pointed out that Heather had never mentioned the charge in her testimony at trial, in her arguments before the chancellor, or in her briefs filed with the court of appeals.  Apparently the chancellor had found the document either inadequately authenticated, or too vague with respect to its victim, or otherwise lacking probative weight.  It has long been the law in Mississippi that, in the absence of specific findings, it is presumed that the chancellor resolved fact issues in the appellee’s favor.  McNeil v. McNeil, 607 So.2d 1192, 1193 (Miss. 1992).

There are two refreshing aspects of the majority opinion:  One is the finding that Chancellor Debbra Halford acted properly in considering the belt-hitting incident in the context of her consideration of the Albright factors, rather than reaching outside the evidence to make a finding for the presumption; and Two that the majority deferred to the chancellor’s judgment and discretion, based as it was on her observation of the demeanor and credibility of the witnesses. 

As a lawyer, you need to plan your case either to meet the presumption or to persuade the chancellor to find that it applies.  You don’t want to get blind-sided by the presumption if it is against your client, and you don’t want your proof to fall short if the presumption is in your client’s favor.  In the Brumfield case, might the outcome have been different if Heather’s lawyer had put more emphasis on proof supporting the presumption?  Remember, chancellors have to base their decisions on what is in the record, and it is your job to make that record.

UCAPA: A VALUABLE CUSTODY TOOL

November 23, 2010 § Leave a comment

Mississippi adopted the Uniform Child Abduction Prevention Act (UCAPA) in 2009.  It is codified at MCA §§ 93-29-1 through -23.

Although the title of the law refers only to abduction, the new statutes go much further and offer proceedings and remedies for situations involving violation of a court order by removing or withholding custody of a child, both of which are situations frequently encountered by practitioners and the courts.  The unique aspect of this law is that it is preventative; that is, it allows the court to act in anticipation of a violation, provided that certain things are proven.    You need to be aware of this law and add it to your repertoire of actions in custodial situations of every kind and nature.

The Act is an adjunct to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), MCA §§ 93-27-1 through 209.

The purpose of the law is to provide legal measures to prevent child abduction, which is defined in Section 3 as “wrongful removal or wrongful retention of a child,” or wrongful removal of a child, which is defined as “taking of a child that breaches rights of custody or visitation given or recognized under the laws of this state,” or wrongful retention of a child, which is defined as “the keeping or concealing of a child that breaches the right of custody or visitation given or recognized under the law of this state.”  

There are three ways to impose measures under the Act spelled out in Section 7:

  1. A court may on its own motion impose abduction prevention measures if it finds that the evidence establishes a credible threat of abduction.  Section 3 states that the court is any aythorized to establish, enforce or modify a child custody order.    
  2. A party to a child-custody determination or a party having a right under Mississippi law or the law of any other state may petition to have obtain abduction prevention measures.  A child custody determination is defined in Section 3 as “a proceeding in which the legal custody, physical custody, physical custody or visitation with respect to a child is at issue, including divorce and dissolution of marriage, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, or protection from domestic abuse.    
  3. A prosecutor or certain public officials may take action.

Jurisdiction is in any court that has child custody jurisdiction under the UCCJEA.  Also, a court of this state may have temporary emergency jurisdiction under MCA § 93-27-204.

The petition must be verified and include a copy of any existing child-custody determination.  The petition must state a factual basis for the belief that there is a credible risk of abduction, stating which of the factors set out in Section 13 are applicable, and why.  Subject to MCA § 93-27-209(5) (where information must be kept confidential to protect the safety of a child), the petiton must also include (a) the name, birth date and gender of the child; (b) the customary address and current physical location of the child; (c) The identity, customary physical address and current physical location of the respondent; (d) a statement whether a prior action to prevent abduction was filed by anyone having custody of the child, and the date, location and disposition of the action; (e) a statement whether a party has been arrested for a crime related to domestic violence, stalking, child abuse or neglect, and the date, location and disposition of the case; and (e) any other information required to be submitted to the court under § 93-27-209, MCA. 

Section 13 lists factors to be considered by the court in determining whether there is a credible risk of abduction, and allows the court to take into consideration that the respondent may have believed in good faith that her actions were necessary to prevent harm to the child, or that they were done with permission.  The factors include whether there has been:

  1. A previous abduction or attempted abduction;
  2. A threat to abduct;
  3. Recent activity indicating a planned abduction;
  4. Domestic violence, stalking or child abuse or neglect;
  5. Refusal to follow a child-custody determination;
  6. Lack of strong familial, financial, emotional or cultural ties to this state or the United States;
  7. Strong familial, financial, emotional or cultural ties to another state or country;
  8. Likelihood of taking the child to another country that is not a party to the Hague Convention, or the laws of which would bar efforts by the other party to contact or re-gain custody of the child, or which poses a threat to the health or safety of the child, or is a terrorist state, or is one with which this country has no diplomatic relations, or is involved in any external or civil war to which the child may be imposed.
  9. An ongoing immigration proceedings that may result in expulsion;
  10. An application for U.S. citizenship denied; 
  11. Falsified travel, driver’s license or other government-issued documents, or misrepresentations to the United States government;
  12. Use of multiple names;
  13. Any other relevant conduct.

If the action is brought on the court’s own motion, the court must also consider the age of the child, the potential harm to the child, the legal and practical difficulties of returning the child to the jurisdiction if the child were abducted, and the basis for a finding of potential abduction.

An order issued by the court must include the provisions spelled out in Section 15

Measures that may be imposed to prevent abduction as set out in Section 15 may include:

  • Imposition of travel restrictions;
  • Prohibition from removing the child from this state or the United States, from retaining the child in violation of a court order, or even from approaching the child at any location other than one designated by the court for supervised visitation;
  • Requirement to register the court’s order in the other state as a condition precedent for visitation with the child in that state;
  • An order that the child’s name be placed on the U.S. State Department’s Passport Issuance Alert Program;
  • Surrender of passports and prohibition against applying for new or replacement passports or visas;
  • Other measures as spelled out the section.

The court may also limit visitation, require a bond, order educational programs, issue a warrant to take custody of a child, direct law enforcement to locate and take or return custody of a child, and grant any other relief necessary.

The court’s order remains in effect for the time stated in the order, or until emancipation of the child, or until the child attains age 18, or until further order of a court of competent jurisdiction.

This court’s view:  On first blush, it would appear that this would be a rarely-invoked law.  After all, how many times have genuine abduction situations arisen in our courts?  Well, in 2010, I have already had two cases that raised issues under this law.  One involved a citizen of  middle-eastern country married to an American citizen who was alleged to have threatened in the heat of a separation squabble that he would take the children to his country and the mother would never see them again.  The other involved grandparent visitation rights and a threat to take the children to another state or Canada where the parent would no longer be required to submit to the court’s order.

But those specific instances are only the more exotic examples.  With a little imagination and effort, you can find ways to make this statute work for your clients in more prosaic cases.

There have been many scenarios over the course of my legal career where this law would have come into play and provided a remedy where none existed then. 

Practice Tip:  Familiarize yourself with UCAPA and add it to your repertoire to use in child custody, visitation and wrongful retention cases, especially where there are interstate or international considerations.  It can be an important tool in your custody tool box.

FAMILY VIOLENCE AND ITS IMPACT ON CUSTODY

November 22, 2010 § 3 Comments

MCA § 93-5-24(9)(a)(i) sets out some important language that you need to be aware of the next time you are involved in a child custody dispute.  It reads in part:

“In every proceeding where the custody of the child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence.  The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party.  The court shall make written findings to document how and why the presumption was or was not triggered.”   

A preponderance of the evidence is required to overcome the presumption.  In making a determination whether the presumption is rebutted, the court is required to consider all of the following:

  1. Whether it would be in the child’s best interest to award the perpetrator custody because of the other parent’s absence, mental illness, substance abuse or other circumstances that affect the best interest of the child;
  2. Whether the perpetrator has successfully completed a “batterer’s treatment program;”
  3. Whether the perpetrator has successfully completed an alcohol or drug abuse counselling program if deemed appropriate by the court;
  4. Whether the perpetrator has successfully completed a parenting class if deemed appropriate by the court;
  5. Whether the perpetrator has been placed on probation or parole, and whether he or she is subject to a restraining order, and his or her compliance with its terms; and
  6. Whether the perpetrator has committed any further acts of domestic violence.

If both parents have committed family violence, the court may award custody to a third party or to the parent whom the court finds to be less likely to continue to perpetrate family violence, and the court may order the custodial parent to complete a “treatment program.”

The court may not require a victim of domestic or family violence to attend counselling, individually or with the perpetrator, as a condition of custody.

In J.P. v. S.V.B., 987 So.2d 975 (Miss. 2008), the court upheld a finding of family violence where a father slapped his daughter several times and made her nose bleed.

In Lawrence v. Lawrence, 956 So.2d 251 (Miss. App. 2006), the court of appeals remanded a child custody adjudication where the record established that the father had a history of violence.  The court directed the chancellor to apply and comply with the statute.

In C.W.L. v. R.A., 919 So.2d 267 (Miss. App. 2005), the court upheld a chancellor’s finding that the statute was inapplicable where the proof showed a few incidents of yelling and screaming, slapping and one episode of choking, but no serious or even moderate injuries.

Interestingly, MCA § 93-5-24(4) provides that “There shall be a presumption that joint custody is in the best interest of a minor child where both parents have agreed to an award of joint custody.”  Does this mean that the parents can cancel the family violence presumption by agreeing to a joint custody arrangement?  I don’t find any case law on the point.

As a practice matter, you need to know up front whether your client will be vulnerable to the presumption.  Has he had a conviction for domestic violence?  Has he been put under a County Court TRO?  Has he been convicted of assault on a family member?  Has there been Youth Court or DHS involvement?  Has he gotten carried away in his discipline of the children or in an argument with his wife? 

If you detect problems early enough, you can take proactive measures to get your client counselling or anger management classes or some form of treatment that will give the chancellor a reasonable basis to make a finding that your client has rebutted the presumption.

« Older Entries

Newer Entries »

Where Am I?

You are currently browsing the Child Custody category at The Better Chancery Practice Blog.