Child Custody | The Better Chancery Practice Blog

MANAGING CLIENT EXPECTATIONS

October 18, 2010 § 4 Comments

One of the challenges of being a Chancery practitioner is keeping your clients’ expectations realistic. And I’m not talking only about expections regarding outcome. I’m talking expectations about you, your firm, the court and the legal process itself.

The Pincus Family Law firm in Columbia, South Carolina has a page on its web site that may just be a home run in addressing client expectations. You may find something useful here. I’ve copied and pasted the text for you:

CLIENT EXPECTATIONS (REALISTIC OR UNREALISTIC)

ABOUT US:

We do not work on the weekends and do not provide emergency numbers for the weekends. There are times we may look at and answer your email over the weekend, but this is generally the exception and not to be relied upon by you that we are accessible on weekends.

Do not think we are perfect. We make mistakes. We are competent attorneys and paralegals, but we make mistakes. We will correct a mistake if we find it or if you point it out. Please do not yell at us, accuse us of not doing our job, or insult us over a mistake.

We will return phone calls in the order they are received and based on the priority of the situation. If you leave a message, your message will be passed on to the attorney. Calling three or four or multiple times in a day will not get your call answered any faster. Email is the quickest way to get a response from an attorney.

Attorneys work by appointments only. Please do not show up at our offices to speak with an attorney without an appointment.

Please utilize our paralegals to answer your questions and give you status reports. Our paralegals are very experienced and can, most of the time, respond to your request. We bill our paralegal time at less than 50% than what the attorneys charge so take advantage of their experience and knowledge.

ABOUT OTHERS:

You may not get any consideration from your spouse for anything you have done or will do because you are nice. You are encouraged to be nice, be cooperative, but don’t expect to get anything favorable in return for it.

Most of the research you do about your case online or the advice you get from friends will be incorrect or not applicable to your case so you should not compare what is happening on your case to what you find online or what friends or family may tell you. As your attorneys, we are the only reliable source of information regarding the process and status of your case.

The opposing attorney may be very aggravating and frustrating to you because he or she may accuse you of things you have not done, may be litigious (wanting to fight about everything), may drag his or her feet with moving the case forward, or may be non-responsive to requests from this office. It is unrealistic to expect that we can control how an opposing attorney handles his or her file or practices law.

The legal pleadings (Complaint, Answer, Counterclaim, etc.) are legal documents filled with allegations that must be pled (and some that are merely made to posture for a client). Do not expend any emotional energy (get angry or upset) on the text of legal pleadings drafted on your behalf or your spouse’s behalf. It is not worth it.

We cannot control the court’s schedule or docket. The courts schedule cases as they are processed and in line with the thousands of other cases filed. You will not be happy with the time it takes your case to get through the system. There are thousands of family law cases filed in Lexington and Richland counties each year and most contested cases take several months, sometimes more than one year, to finish.

What you can expect during a Trial (Contested Case)

COURT APPEARANCES—Bonnie and Monet generally work files together although one attorney may be your “lead” attorney. Therefore, at court appearances, it may be necessary for one to cover a court appearance for the other. We will try to give you advance notice if your “lead” attorney will not be attending a court appearance, but sometimes the scheduling decision is made at the last minute.

SUBPOENAS—the other party can send a subpoena to any third party that MAY have information about you, your spouse, your business dealings, your employment, your education, your children and the like. Banks, lenders, business partners, educational facilities, stock brokers, teachers, churches, etc. can all be issued subpoenas for any records they may have regarding you. We can do the same. There is very little we can do to stop this so be prepared to deal with the frustration you may experience. If there is a legitimate reason to try and stop the subpoena, which there rarely is, we can file a motion to do so. Unless the information is privileged in some fashion, the third party will have to disclose the information requested.

DEPOSITIONS—the other party can issue a notice of deposition to any third party witness. This means that a third party can be required to give testimony under oath usually in one of our offices. The purpose of depositions is to find out information and to find out ahead of time what a person may testify to in court. You and your spouse could each be deposed for the same reason. We can issue notices of depositions as well. A fact witness is entitled to a fee of $25 to appear and professionals (doctors, psychiatrists, etc) are entitled to have their time paid for to appear (by the party that deposes them). A court reporter must be present and is paid to attend as well. The attorneys are paid to attend as well. Depositions are costly.

NOTHING HAPPENS QUICKLY—generally, contested cases take several months to move through the court system. A complicated custody or equitable division case can take one, sometimes two, years to complete. The courts are always full and there are several steps that have to be taken before a trial will be set, for instance, mediation, a guardian ad litem investigation, discovery, depositions, pre-trial hearings and motion hearings. It takes a long time to move a contested case through the court system and this will likely be your number one frustration. We will do all we can to move the case forward, but you will still be frustrated with the time it takes to finish a case. Please prepare yourself ahead of time and please do not take this frustration out on us or my staff. We are doing everything we can to move the case along.

DISCOVERY—this is the “formal” name for exchanging information through subpoenas, written questions (interrogatories) and request for documents. Discovery has its own set of rules and deadlines which we will inform you about during the process.

CHILDREN—Marital problems are terribly difficult for children. Do your children a favor and do not “poison” the minds of your children against their other parent. Do not speak about their parent’s faults to children. Do not complain to your children about how much child support you are paying or how little child support you are receiving. Visitation with parents is NOT a bargaining chip or game. Each parent is entitled to visitation privileges with their children. Children are not your property. They are not your pawns. They are absolutely not your messenger. They are innocent individual human beings that need both of their parents, not just the “best” parent.

ADULTERY—Do not become romantically involved with someone other than your spouse if you are still legally married (even if you are separated)! During marital litigation you should behave as though a detective and camera crew were following you and recording you and your conversations at all times.

CHILD CUSTODY CASES—You should behave as though a detective and camera crew were following you and recording you and your conversations at all times. Do not do anything that you would not perfectly happy with a Family Court Judge seeing, hearing or finding out about when the Judge is deciding your custody case.

ATTORNEY’S FEES—in a child custody case, you could spend the price of a car in attorney’s fees. Most contested custody cases run upwards of 10-20 thousand in fees paid out over the course of the case. This usually includes attorney’s fees, guardian fees, psychological fees and expert witness fees. In a complicated equitable division case, the cost can be significant and sometimes more than a custody case depending on how much property there is to value and the difficulty of valuing assets. Even a very small business can run $2,500-$5,000 to value if there is a dispute as to the value. A small equitable division case (which means there is a home, retirement, credit card debt, and other property or debts to divide) can run $5,000-6,000 in attorney’s fees over the life of the case. The most expensive part of the case is going to be trial preparation and attendance costs. That is why a trial retainer (an “up front” payment) is required in all contested cases. You will see this in your fee agreement and we reiterate here that a trial retainer is required for continued representation.

Thanks to the LegalEthicsForum.com for this.

TRIAL BY CHECKLIST: INCOME TAX DEPENDENCY EXEMPTION

October 11, 2010 § 9 Comments

A practice tip about trial factors is here.

The Mississippi Supreme Court ruled in Nichols v. Tedder, 547 So.2d 766, 775 (Miss. 1989), that the Chancellor may award the dependency exemption for income tax purposes to either parent as part of its determination of child support.

If your client wants the court to award her the tax dependency exemption, it will take more than just asking her what she wants the court to do. In Louk v. Louk, 761 So.2d 878, 884 (Miss. 2000), the Mississippi Supreme Court laid out the factors that the Chancellor is required to consider before making the award. They are:

The value of the exemption at the marginal rate of each parent;
The income of each parent;
The age of the children and how long the exemption will be available;
The percentage of the cost of supporting the children borne by each parent; and
The financial burden assumed by each parent under the property settlement agreement in the case.

In Laird v. Blackburn, 788 So.2d 844, 852 (Miss. App. 2001), the Court of Appeals added a sixth: the value of the non-economic but valuable contributions made by the custodial parent.

Although I have often heard parties testify that they wanted the court to award them the exemption, I have never heard any testimony on factor 1.

It seems to me that if you fail to put on the requisite proof, you run the risk that the judge will simply say that the proof did not support such an award, or, if the trial judge does award it, that the Court of Appeals will take it away or put your client to the considerable expense of having to retry the issue so that the trial judge will have the evidence necessary to adjudicate it.

BETTER CHANCERY PRACTICE FAQ

October 8, 2010 § 2 Comments

My 8.05 financial statements stink. How can I improve them?

Here are Ten Tips for More Effective Rule 8.05 Financial Statements.

Is my estate ready to close?

Check out this Checklist for Closing an Estate.

I think I need to file a habeas action. Any tips?

This Habeas Corpus Step by Step should help.

One more time: what are those child custody factors I need to prove at an upcoming trial?

The Albright factors are what you’re looking for.

Help! We need to sell some real property in an estate, and I don’t know where to start?

How to Sell Real Property in an Estate may be just what you need.

I’ve been asked to handle a minor’s settlement for a Jackson firm, and I’ve never done it before. What do I need to do?

This Outline for Handling a Minor’s Settlement will get you started.

My mail has an MRCP 41(d) notice in it this morning. I remember you said something about it, but I don’t have time to look for it. Can you remind me what I am supposed to do?

<Sigh> Here’s a post on what to do When Rule 41(d) Comes Knocking at Your Door.

I need to prove the tax effects of alimony, but my client can’t afford to hire a CPA to come testify. Any ideas on what I should do?

Try looking at Proving Tax Effects of Alimony.

My Chancery Judge is really nitpicky. How can I draft my adoption Complaint to satisfy him?

Are you talking about me? Whatever. Here is a post on pleading Jurisdiction for Adoption.

Every time I go to court in Jackson, the lawyers there snicker about my countryfied attire. Any suggestions? I cannot afford another $100 contempt citation for punching out a lawyer in the courtroom.

You probably need to be charging more so that you can afford either a better wardrobe or more contempt fines. Until you do, try reading “High Waters” and Burlap Suits. It won’t change anything, but it may help you to feel better.

NEW RIGHTS OF PARENTS ON ACTIVE MILITARY DUTY

August 19, 2010 § Leave a comment

Section 93-5-34, MCA, which sets out certain custodial and visitation rights of parents who are called to active military duty, has been amended to add some new wrinkles. It is one of several new laws that affect your Chancery practice, most of which went into effect July 1, 2010, and are listed here.

The amended statute now applies also to persons related by blood or marriage to a deployed military parent, and may include, step-parents, grandparents, aunts, uncles, adult siblings and others.

It adds the requirement that any order entered affecting custody of or visitation with a parent called to active duty shall require:

that the non-deployed parent shall make the child or children reasonably available to the deployed parent when he or she is on leave.
that the non-deployed parent shall facilitate opportunities for telephonic, webcam and e-mail contact between the deployed parent and the child or children during deployment, and that
the deployed parent shall provide timely information regarding his or her leave schedule to the non-deployed parent.

“PRIMARY PHYSICAL”: A CUSTODY CONUNDRUM

August 3, 2010 § 7 Comments

Many lawyers use the term “primary physical custody” in their property settlement agreements. For example: “The parties shall share joint legal custody, and wife shall have primary physical custody of the minor children.”

If the intent was for wife to have exclusive physical custody, use of the word “primary” in that sentence is probably harmless, if meaningless.

Consider, however, language in a property settlement agreement that provides, “The parties shall share joint legal and physical custody, with wife to have primary physical custody and husband to have secondary physical custody.” For lawyers looking for a way to mollify a father demanding custody or at least joint custody, and a mother insisting on sole custody, such language sounds like a nice, painless way to make the father feel included in the physical custody loop while leaving the mother in first place, right? Think again.

In Porter v. Porter, 23 So.3d 438 (Miss. 2009), the parties’ agreement used the “primary” and “secondary” language above. The Mississippi Supreme Court pointed out that the joint custody statute includes no definition of the terms “primary physical custody” or “secondary physical custody.” The court held that the term “primary physical custody” could not be used to transform what was expressly a joint physical custody arrangement into a de facto sole physical custody arrangement. In other words, the use of the language “primary physical custody” has no legal meaning in our law, and its use may import dangerous ambiguity into your otherwise carefully-crafted agreement, leaving it open to an interpretation neither you nor your client ever intended.

Imagine having to explain to your client who thought she would be “primary” in the custody arrangement that she and her ex-husband are on an equal custodial footing. Do you think she might be a bit peeved at her attorney?

In my opinion, the same result as in Porter would be reached in the situation where the parties agreed to this language: “The parties shall share joint legal and physical custody, and wife shall have primary physical custody.”

And the same result with this language: “The parties shall have joint custody, and wife shall have primary physical custody.” The reason that this language would produce the same result is found in § 93-5-24 (5) (a), MCA, which states that ” … ‘joint custody’ means joint physical and legal custody.”

I believe that attorneys often operate under the mistaken belief that “primary physical custody” designates the person who has final decision-making authority in a joint custody arrangement. The Porter case tells us that is not so. If you want the wife to have final decision-making authority, use language to this effect: “The parties shall share joint custody of the minor children, and wife shall have final decision-making authority in matters of the children’s health, education and welfare.”

Practice Tip: Avoid using the term “primary physical custody” or any other term not defined in the statute when crafting your custody provisions.

TRIAL BY CHECKLIST: GRANDPARENT VISITATION

July 28, 2010 § 16 Comments

A practice tip about trial factors is here.

Martin v. Coop, 693 So.2d 912, 913 (Miss. 1997), factors for grandparent visitation:

Potential disruption in the child’s life;
Suitability of the grandparents’ home;
The child’s age;
The age and physical and mental health of the grandparents;
The emotional ties between grandparents and the child;
The grandparents’ moral fitness;
Physical distance from the parents’ home;
Any undermining of the parents’ discipline;
The grandparents’ employment responsibilities;
The grandparents’ willingness not to interfere with the parents’ rearing of the child.

Except in unusual circumstances, grandparent visitation should not be the equivalent of parental visitation. Martin v. Coop at 913.

If the court awards grandparent visitation equivalent to parental visitation, the court must make specific findings to support the award. Settle v. Galloway, 682 So.2d 1032, 1034-35 (Miss. 1996).

INS AND OUTS OF GRANDPARENT VISITATION

July 26, 2010 § 4 Comments

[This outline is based in part on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Who is entitled to grandparent visitation?

Category One: Grandparents who have a change in status. § 93-16-3 (1), MCA.

— Child of the grandparents lost custody of the grandchild to the grandchild’s other parent, or

— Child of grandparents had parental rights terminated, or

— Child of grandparents is deceased.

Category Two: Grandparents who are not in Category One and have a “viable relationship.” § 93-16-3 (2), MCA.

— If grandparent had established a “viable relationship” with grandchild and grandchild’s parent or custodian hs unreasonably denied visitation with the grandchild, and

— Visitation rights will serve the grandchild’s best interest.

A “viable relationship” is where the grandparent has supported the grandchild in whole or in part for not less than six months prior to the filing of the petition, or the grandparent had frequent visitation for one year prior to the filing of the petition.

In order to determine whether visitation rights will serve the child’s best interest, and the extent of the visitation that should be ordered, the court must address the factors set out in Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997), which are set out here.

Grandparent visitation is not available to grandparents of children given over for adoption, unless one legal parent is also a biological parent, or unless one adopting parent was related to the child by blood or marriage prior to the adoption. § 93-16-7, MCA.

Visitation is available to persons who become grandparetnts by virtue of adoption. § 93-16-7, MCA.

Siblings and other third parties have no common law or statutory right to visitation. Scruggs v. Satterfiel, 693 So.2d 924, 926 (Miss. 1997).

Venue is in the county where a child custody order was previously entered, or in the county where the child resides, if no custody order has been previously entered. § 93-16-3 (4), MCA.

Summons and service of process is had on the custodial parent(s), pursuant to Rule 81, MRCP.

TRIAL BY CHECKLIST: CHILD CUSTODY FACTORS

July 19, 2010 § 32 Comments

A practice tip about trial factors is here.

The factors that the court must consider in awarding child custody are set out in Albright vs. Albright, 437 So.2d 1003, 1005 (Miss. 1983).

The factors are:

Age, health and gender of the child.
Parent having continuity of care prior to the separation.
Parent with best parenting skills and willingness and capacity to provide primary child care.
Employment of the parent and responsibilities of that employment.
Physical and mental health and age of the parent.
Emotional ties of parent to child.
Moral fitness of the parent.
Home, school and coomunity record of the child.
Preference of the child at age sufficient to express a preference.
Stability of parent’s home environment and employment of each parent.
Relative financial situation of the parents.
Difference in religion of the parents.
Differences in personal values of the parents.
Differences in lifestyle of the parents.
Other factors relevant to the parent-child relationship.

The Albright factors are not to be applied in the manner of a scoresheet or mathematical formula. Lee v. Lee, 798 So.2d 1284, 1288 (Miss. 2001). The Chancellor may give special weight to one, two or several factors to determine the outcome. Divers v. Divers, 856 So.2d 370, 376 (Miss. App. 2003). The Chancellor has the ultimate discretion to judge the weight and credibility of evidence. Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss. 1994); Johnson v. Gray, 859 So.2d 1006, 1013-1014 (Miss. 2003).

In an original action for custody, the Albright factors govern the award.

In a modification of custody case, the proponent must prove 3 things, in combination, in order to prevail:

That there has been a change in circumstances of the custodial parent material to the issue of custody since entry of the last judgment; and
That the change in circumstances has an adverse effect on the minor child; and, if 1 and 2 are proven
That it is in the best interest of the minor child to change custody. Determination of the child’s best interest is based on application of the Albright factors to the facts of the case.

The standard for modification is like a three-legged stool; if one leg is missing, the stool can not stand. It is a three-prong or three-part test.

There is one exception to the three-part test for modification. In the case of Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996), the Mississippi Supreme Court held that it is not necessary to prove adverse effect where the child is in an inherently dangerous or unsuitable situation, as where the custodial parent is using drugs. Evidence of the Albright factors should still be offered in such cases. Some argue that Albright proof would not be necessary in a case where the proof shows a clearly dangerous circumstance, but it is this judge’s position that proof of the Albright factors in such a case would make the case airtight.

There have been cases following Riley that have explained and even expanded on the concept, so that now there is arguably a “totality of the circumstances” test to justify modification. Some attorneys have taken the position that the “totality” is an alternative avenue to the three-pronged test. This court is not convinced, and takes the position that Riley and its progeny apply in extreme circumstances where the proof shows that the child is showing no adverse effects despite being in an inherently dangerous situation. In my opinion, the Riley line of cases is not intended to create a new remedy where there is no inherently dangerous situation and the proof is not strong enough to satisfy the three-prong test.

The Albright factors apply only to physical custody, and the Chancellor is not required to address them in considering whether to grant joint legal custody only. Palculict v. Palculict, 22 So.3d 293 (Miss. App. 2009).

HABEAS CORPUS STEP BY STEP

July 14, 2010 § 16 Comments

Habeas corpus is the ancient writ that extends ” … to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto …” §11-43-1, MCA.

In Chancery Court, habeas is most often used where one person is withholding custody of a child or a ward from the person who is legally entitled to custody. This post will focus on Chancery cases involving deprivation of custody, and not on illegal detention by the state.

The procedures for habeas are purely statutory, and are specifically excepted from Rule 81, MRCP.

The first step in obtaining the writ is to file a petition with the court. The petition must be sworn, describing where and by whom the person is being detained, the facts and circumstances of the restraint, and the ground for the relief sought. §11-43-9, MCA. Venue is proper in the county where the person is being detained, not in the county where a prior judgment of custody was entered. Logan v. Rankin, 230 Miss. 749, 94 So.2d 330 (Miss. 1957).

Next, the petition is presented to the court. Some judges require that the petitioner appear personally to testify in favor of granting the writ. This judge will issue the writ without testimony of the petitioner if the petition is in proper form, is sworn, and includes each and every element required in §11-43-9, MCA.

If the Chancellor deems the petition adequate, he or she will sign an order directing the clerk to issue the writ. The Chancellor may issue the writ also. §11-43-15, MCA.

The usual form of the writ is as follows:

“THE STATE OF MISSISSIPPI, to: _____________________

WE COMMAND YOU to have the body of ___________________, by you detained, as it is said, before __________, a judge of our _____________ Court, at _____________, forthwith (or on a given day), to do and receive what may be then and there considered concerning him. Witness my hand, etc.” §11-43-17, MCA.

The writ is served, and the return made, as with process, by any person whom the court may direct or by the sheriff or any constable. §11-43-17, MCA.

The person upon whom the writ is served is required to have the person for whose benefit the writ is issued personally before the court at the appointed time. §11-43-27, MCA. The court may, however, order immediate apprehension of the person in whose behalf the writ is sought, if the court is satisfied from the sworn allegations or testimony that the person will be removed or concealed so as not to be produced with the writ. The sheriff or designated person in such a case is directed to take the person into custody and to deliver the person to the court at the appointed place and time. The statute sets out the required language for the writ in such cases. §11-43-21, MCA.

The writ may be served on a Sunday in event of an emergency. §11-43-21, MCA.

The writ is returnable forthwith, or on a particular day within a reasonable time. §11-43-23, MCA.

§11-43-31, MCA, sets out penalties for disobedience of the writ. The respondent who disobeys the writ may be ordered to pay the person for whose benefit the writ is issued a penalty of $1,000, and the disobedient party may be punished for contempt. §11-43-31, MCA.

At the time set for return of the writ, unless the detaining party agrees to release the person detained, a hearing is held to which witnesses may be subpoenaed, and testimony and evidence is taken as at other trials, and the court may continue the case from day to day as the case may require. §§ 11-43-33 and -39, MCA. Interestingly, testimony of a witness may be offered by affidavit “whenever the personal attendance of a witness can not be procured,” provided that the affidavit is taken on reasonable notice to the other party. §11-43-39, MCA. The court may award “costs and charges, for or against either party, as may seem right.” §11-43-33, MCA.

The court may make temporary orders. §11-43-35, MCA.

The court’s judgment is final, binding and appealable. §§11-43-43, -53 and -55, MCA. The habeas court does not have continuing jurisdiction to modify its award. See, Mitchell v. Powell, 179 So.2d 811 (Miss. 1965). The jurisdiction of the Chancery Court in a habeas proceeding is temporary in nature. See, Pruitt v. Payne, no. 2008-CA-00172-COA (Miss. App. 2009).

Habeas is not to be used as a mechanism to modify prior custody decrees. Fulton v. Fulton, 218 So.2d 866, Miss. 1969). In the case of Wade v. Lee, 471 So.2d 1213, 1217 (Miss. 1985), however, the Mississippi Supreme Court carved out an exception so that the petitioner or respondent may use a habeas hearing to obtain temporary custody if the custodial parent has abandoned the child or become “altogether unfit” to have custody. In such a case, the court should set an expiration date for the temporary order in order to give the parties an opportunity to file appropriate pleadings for modification in the court having jurisdiction to entertain the case.

An observation: It is unfortunately frequent that attorneys come to a habeas hearing and try to present a modification case, with its evidence of material change, adverse effect and best interest. The proper standard in a habeas hearing to achieve a temporary change in custody, however, is to produce proof that the custodial parent is “altogether unfit” or has abandoned the child, and proof that falls short of that standard will result in the child being returned to the custodial parent. If the proof only supports a modification action, that is the procedure that should be used, and not a habeas proceeding.

What you can expect during a Trial (Contested Case)

Where Am I?