Can I get a witness?

Being a witness in Court can be scary. Sometimes it is the fear of the unknown questions the other side’s attorney will ask. You want to be as prepared as possible.

Here are some tips for witnesses:

1. Listen to the entire question before answering.
2. If you do not understand the question, say it.
3. Always try to answer Yes or No and, if necessary, explain. It is human nature to answer questions with explanations supporting our position. If you do not explain it now and your attorney feels it deserves an explanation, your attorney will ask you a follow up question later.
4. Watch your facial expressions and attitude even when you are not on the witness stand. In Chancery Court, the judge is the trier of fact and watches for facial expressions and reactions throughout the trial.
5. Do not argue with the attorney questioning you OR ask the attorney questions in response.

Being prepared is the key to being a good witness. Take the time to adequately prepare with your attorney before Court. Your attorney can provide you with an outline of the questions he/she is going to ask you and anticipate some of the questions the other side will ask you.

Just remember there is no such thing as a bad witness, because a bad witness is a good witness for the other side.

 

Common Misconceptions in Family Law

Many times we have clients call regarding a divorce and have common misconceptions because “that’s what they’ve heard.”

I’m filing for a no fault divorce. Mississippi is not a true “no fault” state. At this time, one party cannot file for a no fault divorce in Mississippi. Both parties may file for a divorce on Irreconcilable Differences, keyword “both” parties. This filing is usually a Joint Complaint for Divorce, which also requires that both parties have entered into an Agreement for the custody, support and maintenance of the minor child(ren) and the settlement of all property rights.

An affair means you can’t have custody. False. When determining custody, the Court relies on the Albright factors. Albright vs. Albright, 437 So. 2d 1003 (Miss 1983). One of the factos is the moral fitness of the parents, this is where the Court could consider any fault or misconduct on the parties. For a list of the factors, see Bowtielawyer.ms – Albright Factors.

The woman always get custody. False. Miss. Code Ann. §93-5-24(7) states: “There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.”

Once a child is twelve, he/she can decide where they want to live. This is simply not true. When making a custody determination the Court considers ALL of the Albright factors (see above). One of the factors includes the preference of the child over the age of 12, but this one factor alone does not carry the day. That being said, as a child reaches certain, more mature ages, the Court may be more inclined to adopt the child’s preference.

“Take you to the cleaners” Mississippi is an equitable distribution state. Equitable distribution does not mean 50/50, but it also does not mean 100/0. The court has laid out several factors known as the “Ferguson Factors” when it comes to equitable distribution. Ferguson vs. Ferguson, 639 So.2d 921, 928-9 (Miss. 1994). For a list of the factors, see Bowtielawyer.ms – Ferguson Factors.

Mississippi is not an alimony state. Mississippi is an alimony state. The court has laid out several factors known as the “Armstrong Factors” when determining whether or not alimony is appropriate. Armstrong vs. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993). For a list of factors, see Bowtielawyer.ms – Armstrong Factors.

It is important to note the Court has directed that alimony is to be used after an equitable distribution of the marital estate. If the court finds that the needs of both parties are met and there is no disparity with the distribution of the marital estate, the court does not consider alimony.

The man has to provide health insurance. False. At first I thought this was a joke, but I have heard it enough times to include it in this list. There is no authority that a male is required by law to provide health insurance. This usually comes up in child support issues. Miss. Code Ann. §43-19-101 (6) states:

(6) All orders involving support of minor children, as a matter of law, shall include reasonable medical support. Notice to the obligated parent’s employer that medical support has been ordered shall be on a form as prescribed by the Department of Human Services. In any case in which the support of any child is involved, the court shall make the following findings either on the record or in the judgment:

(a) The availability to all parties of health insurance coverage for the child(ren);

(b) The cost of health insurance coverage to all parties.

The court shall then make appropriate provisions in the judgment for the provision of health insurance coverage for the child(ren) in the manner that is in the best interests of the child(ren). If the court requires the custodial parent to obtain the coverage then its cost shall be taken into account in establishing the child support award. If the court determines that health insurance coverage is not available to any party or that it is not available to either party at a cost that is reasonable as compared to the income of the parties, then the court shall make specific findings as to such either on the record or in the judgment. In that event, the court shall make appropriate provisions in the judgment for the payment of medical expenses of the child(ren) in the absence of health insurance coverage.

Know when to go….

Change can be intimidating. Routine can be comforting. In life, whether personal or business, you reach a point where you might question “what am I still doing here?”

Sometimes you’re lucky and a natural break comes along, and you can part on good terms. Other times an event can trigger the break, whether it’s good or bad. The hardest part is picking up on clues that may be hard to spot, because that’s just the way it always is.

We know the grass is not always greener, but sometimes we need to either fertilize our own grass or look for a new yard.

 

 

Even if you’re trying to lose it, always trust your gut!

There is something to be said for “gut feelings!” Trusting your intuition can be hard, because you may not want to face the weight on the scale. This is often times true when a client suspects their spouse is having an affair.

There are some red flags for those gut feelings. Matthew previously blogged on some of these Click here for Matt’s Blog There is even a video of Matt (back when he had a gut).

Red flags for those gut feelings:

• Cell Phone Passcode.  The phone is always on lock down mode.
• Change in Attire.  The spouse is dressing in trendier clothes or “younger” or more “revealing” clothes.
• New Undies.  Provocative undergarments appear that you don’t see in use
• Working out.  Not just New Years Resolutions.

• Body Augmentation.  Having lifts or lipos.
• Longer Work Hours.  Having to work late, a lot more often, and out-of-town travel when they previously did not.
• Unexplained Absences.  Going to the store for some milk and being gone 6 hours.
• Bad On-Line Habits.  Surfing at all hours of the night, deleting the browser history.
• FaceBooking Old Flames.

So if you have these gut feelings, trust them and act accordingly. Seek advice on how to handle these red flags. Maybe your gut will help you drop some dead weight.

“Grandma, what big rights you have….”

In Mississippi, grandparents can have visitation rights. These rights are usually exercised when a parent of the grandchild has died or a relationship between the grandparent and his/her child has dissolved and there is still a viable relationship between the grandparent and the grandchild. As with any custody or visitation matter, the best interest of the child is always the polestar consideration. Grandparents, parents and children have different relationships depending on many circumstances. Normally grandparents are not granted the same visitation as a non-custodial parent, it is usually less unless the Court finds that the situation calls for more visitation and it would be harmful to the child not to award such visitation.

In Martin v. Coop, the Court set out the following factors to consider when granting or denying visitation with grandchildren:

1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents’ home from the child’s home.
8. Any undermining of the parent’s general discipline of the child.
9. Employment of the grandparents and the responsibilities associated with that employment.
10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents. 693 So.2d 912 (Miss. 1997)

So going to grandma’s and grandpa’s house can become more than just a holiday tradition. It can become an every month thing, especially if it is in the child’s best interest.

DIY DISASTERS

In today’s world it is easier than ever to try and do it yourself. There are millions of websites and tutorials available at your fingertips to walk you through it. Sometimes, though, it’s good to know your limits.

When something in my house goes wrong and it’s well beyond my knowledge and expertise, I call someone who knows how to fix it. Someone who has that knowledge and training. The same can be said for attorneys. Some people truck it up to Office Depot and buy the software or jump on the internet and download the forms to do their own divorce. They fill in the blanks, sign the forms, go pay the filing fee with the Clerk and most times end up in two situations: (1) After the 60 days, the Judge will not approve the Final Judgment and Agreement because “it looks funny” and does not address anything or (2) it is approved and they are divorced and key elements are left out which become a bigger issue down the road for a modification or contempt proceeding.

I remember when I got my first car, a Toyota Tercel. Not only was it an amazing car because it was mine, I also had an Alpine radio system to install in it. (I know I’m showing my age, but y’all know Alpine was the bomb) Rather than taking it to an audio shop, I thought I could install it myself. I will never forget the sound of frying wires and white, billowing smoke that poured out of my stereo system.

The lesson is……..there is a reason individuals go to school, go through training, and gain experience in certain professions. Know your limits, accept them, seek help and hire accordingly.

Talk is Money when it Comes to Mississippi Adoption Proceedings

Photo courtesy of istockphoto.com

 

The Mississippi Legislature enacted House Bill 27 in the 2014 Legislative Session.  One of the major changes includes an amendment to §93-17-25 of the Mississippi Code Annotated.

The statute already stated that:

All proceedings under this chapter shall be confidential and shall be held in closed court without admittance of any person other than the interested parties, except upon order of the court.  All pleadings, reports, files, testimony, exhibits and records pertaining to * * * adoption proceedings shall be confidential and shall not be public records and shall be withheld from inspection or examination by any person, and shall not be disclosed by any person except upon order of the court which the proceeding was had on good cause shown.

The amendment added the words testimony and exhibits.  This is important because before it would have been fine to talk about what you may or may not have said in a proceeding or what documents may have been introduced.

The biggest changes are the last two entries to this statute –

Any person who shall disclose any information received during a closed hearing or any records involving children or the contents thereof without the proper authorization under this section shall be guilty of a misdemeanor and punished, upon conviction, by a fine of not more than One Thousand Dollars ($1,000.00), or by imprisonment in the county jail of not more than one (1) year or by both such fine and imprisonment.

Nothing herein shall prevent the court from finding in civil contempt any person who shall disclose any records involving children or the contents thereof without the proper authorization under this section.  Any person who willfully violates, neglects or refuses to obey, perform or comply herewith shall be in contempt of court and punished by a fine not to exceed Five Hundred Dollars ($500.00), or by imprisonment in jail not to exceed ninety (90) days, or by both such fine and imprisonment.

The law now provides that ANY person (including attorneys) can be found guilty of a misdemeanor and upon conviction, be fined no more than $1,000.00 OR spend no more than a year in the county jail.   So now not only are you a criminal, but the court can also find ANY person (including attorneys) in civil contempt and be fined no more than $500.00 or spend no more than 90 days in jail, OR BOTH!

If you want to run your mouth about adoption proceedings, you better be ready to pay for it!! The Court now accepts time and money!

A TPR IS A LTR

        Once the rights of a parent have been terminated, it is forever.  In Mississippi, a child cannot be adopted until the parental rights have been terminated. The grounds for termination are enumerated in Miss. Code. Ann. §93-15-103(3). Some include:

• A parent has deserted without means of identification or abandoned a child
• A parent has made no contact with a child under the age of three(3) for six months or a child three (3) tears of age or older for a period of one (1) year; or

 

• A parent has been responsible for a series of abusive incidents concerning one or more children; or
• When the child has been in the care and custody of a licensed child caring agency or the Department of Human Services for at least one (1) year, that agency or department has made diligent efforts to develop and implement a plan for return of the child to its parents; and:
• The parent has failed to exercise reasonable available visitation with the child; or
• The parent, having agreed to a plan to effect placement of the child with the parent, fails to implement the plan so that the child caring agency is unable to return the child to said parent; or
• The parent exhibits ongoing behavior which would make it impossible to return the child to the parent’s care and custody:
• Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation, which condition makes the parent unable to assume minimally, acceptable care of the child; or
• Because the parent fails to eliminate behavior, identified by the child caring agency or the court, which prevents placement of said child with the parent in spite of diligent efforts of the child caring agency to assist the parent; or
• (g) and (h) are omitted

                  In a recent Mississippi case, after a divorce in 2008, the father filed a motion to modify the judgment and to terminate the mother’s rights. After a hearing on his motion, the mother failed to appear, and the judge entered a preliminary judgment terminating the mother’s rights. A second hearing was held and the mother failed to show. The Judge entered a judgment terminating the mother’s rights. The Court of Appeals affirmed the lower court’s ruling stating that mother was unable to care for her child because of her drug addiction and had not visited or contacted her children for at least one year, not even for Christmas or birthdays. Once the Court has determined it is in the child’s best interest to terminate the rights and enters a judgment, it cannot be undone. Owens v. Owens, 2012-CA-01689-COA, 2014 WL 2735148 (Miss. Ct. App. 2014).

            A parent may voluntarily relinquish parental rights and consent to the adoption of a child.  But without a showing of fraud, duress or undue influence, the court will not set aside a judgment terminating parental rights. In re Adoption of P.B.H., 787 So.2d 1268 (Miss. 2001). (see also Grafe v. Olds, 556 So.2d 690 (Miss. 1990).

            A Termination of Parental Rights is a long term relationship.  The courts must make a decision in the best interest of the child.  Even if the termination is voluntary, it is still a decision with a lifetime of consequences.

First comes love, then comes marriage, then comes divorce, then comes marriage (again)?

It is no secret that some people rush into marriages. Sometimes rushed marriages lead to rushed divorces and those rushed divorces lead to regret. My boss, Matthew Thompson (aka the BowtieLawyer) has dubbed himself the “undivorce lawyer.” This week I got to be an undivorce lawyer too. As I was sitting in court waiting to meet with the Judge, I was speaking with another attorney who had never heard of an “undivorce.” In defense of attorneys and judges throughout this state, few people have heard of an undivorce. Well, you’re about to find out.

Mississippi Code Annotated §93-5-31 (Supp. 1991) allows a Judgment of Divorce to be revoked at any time. There are some requirements:

1. Must be in the Court that granted the divorce
2. Under such regulations and restrictions as that Court deems proper to impose (whatever that means)
3. Upon joint application of the parties (you both have to sign)
4. Satisfactory proof of reconciliation (most judges take the Petition by both parties requesting the revocation as satisfactory proof of reconciliation)

With all the requirements followed, your divorce is revoked and you are married! So if you find yourself divorced, back together with your ex, and want to make it official…. don’t get remarried, just get undivorced!

 

Chad King is a Family Law Attorney in MS handling divorce and undivorce matters.           Thompson Law Firm, pllc (601) 850-8000 www.bowtielawyer.ms