UPDATED CHECKLIST OF CHECKLISTS
May 27, 2011 § 5 Comments
Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.
Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.
Here is an updated list of links to the checklists I’ve posted:
Doing an accounting in a probate matter.
Income tax dependency exemption.
Modification of child support.
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):
Modification of child support.
Periodic and rehabilitative alimony.
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.
ONCE AGAIN ON THE IMPORTANCE OF CHECKLIST PROOF
November 24, 2010 § Leave a comment
I’ve talked before here about how important it is to develop your proof at trial based on the various lists of factors — I call them “checklists” — that have been handed down by the appellate courts.
The Court of Appeals on November 2, 2010, reversed a Chancellor’s decision granting grandparent visitation for failure to address the Martin v. Coop factors. In the case of Conerly v. Davis, the court stated that ” … the grandparent-visitation statutes simply give a grandparent … standing to file a request seeking visitation rights. It is then within the chancellor’s discretion to award or deny visitation after reviewing the Martin factors and considering the best interest of the child. Therefore, we vacate the chancellor’s judgment and remand this case for an on-the-record consideration of the Martin factors and the entry of an appropriate judgment based on those factors.”
The Martin v. Coop factors are here.
A guide to the intricacies of grandparent visitation is here.
The retrial in this case may be due to a simple oversight on the judge’s part. Or, it may be that neither party at trial developed any evidence that would have supported findings under the appropriate factors.
When representing a client in any case where proof of trial factors is required to support the chancellor’s decision, be sure you present evidence to establish each and every one. If you do not have proof on every factor, develop as many as you can. If the judge renders an opinion at the conclusion of the case and does not address the applicable factors, ask her to adress them or to render a supplemental opinion doing so. If the judge renders a written opinion and/or judgment, file an MRCP Rule 59 motion immediately, but not more than ten days after the judgment is entered, asking the court to address the factors based on the proof in the record.
You are setting the stage for a remand and a second, costly trip to court for your client if you don’t.
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.
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