What do Courts Look at in a Custody Dispute II?
July 2, 2008 | 2 Comments
Today we continue examining what factors Judges consider when ruling on a custody dispute.
3. Continuing Care of the Child
The idea of continuing care has taken the same legal status that the maternal preference used to have. Courts look here to the day to day activities to determine which parent provided care. The inquiry includes a question of who bathed, dressed, put to bed, prepared meals, arranged babysitters and extracurricular activities, bought clothing and other items, dealt with medical care, read to, played with and made educational arrangements for the child. While not stated in statute or in case law this is the most heavily weighted factor in Mississippi. Courts rely heavily on this factor, especially when awarding custody to the father. Courts have awarded custody based on this factor in spite of compelling moral factors that may mitigate against a custody award (we will address these later) such as bigamy or adultery. Courts have awarded custody to a mother with severe emotional problems on the policy of continuity of care for the child. Continuity of care, like any of the factors, is subordinated to strong parenting skills and a stable environment. Claiming continuity of care when a third party (here the ex-husbands parents) did a majority of the work is insufficient. Courts will look at continuity of care before the separation period and during all other periods of custody.
4. Parenting Skills
Courts also look to more physical activities and daily routines to evaluate each parent’s parenting skills and determine each parent’s ability to provide physical care, support, discipline and guidance, under the totality of the circumstances. Courts inquire as to who met personal hygiene and medical needs, whether the parent orchestrated appropriate social engagement and extracurricular activities, whether the parent spent free time with the child. Courts have also awarded custody based on improved behavior and school attendance while in the custody of one parent; and on one parent’s pursuit of adequate counseling and other educational needs. Factors indicative of poor parenting skills include failure to supervise or prevent harm, failure to make ones home safe, exposure of the child to parental disputes, harassment of the other parent, voluntary or forced relinquishment of rights concerning other children, or disobedience of any custody orders. Courts have denied custody based on a finding of inability to take personal responsibility for ones actions.
What do Judges Look at In a Custody Dispute ?
June 24, 2008 | Leave a Comment
There are lots of myths and advice in circulation pertaining to divorce. What you can or cannot do, what a friend might say or might have just heard. Often such conflicting information can add more stress, uncertainty, and even cause parties with good intentions to make serious mistakes. No publication can take the place of an individual consultation with your attorney, but a knowledge of what courts consider in a Mississippi or Memphis divorce may clear up some confusion and prepare you to meet with your attorney. This week we will explore what judges consider and do not consider when determining disputed custody.
The overarching theme of all of Mississippi custody law is to determine what is in the best interest of the child. If Joint custody is requested a judge will automatically assume joint custody is in the best interests of the child. If there is a dispute over custody Judges will look at 12 areas (known in Mississippi as the albright factors) to determine what type of placement is in the child’s best interest.
1. The Age of the Child
Mississippi courts are no longer allowed to base custody decisions solely on the idea that the child is of tender years and the mother is best equipped to nurture a child. But, the judge is still free to indulge a general presumption that a mother is best suited to raise a young child. As a general rule a fit mother who has been the child’s primary caretaker is likely to win custody based on that factor and on the fact that the mother was the primary caregiver (we will look at that factor later). But this presumption applies only to very young children. When a child can be cared for equally by either parent then that factor is no longer applicable. In Mississippi possibly children as young as four years of age have been ajudged to be capable of being cared for by wither the Mother or the Father. Recently there has been a trend of growing judicial acceptance of fathers as primary care givers. Fathers who have been the primary care giver to the child have also won exclusively on those grounds.
2. The Sex of the Child
Older children may be adjudged to do better when in custody with the same-sex parent based on the importance of a strong gender role model; this is especially prevalent in boys. This could be a supporting issue for the judicial opinion but the most important factor to a judge will be to find the prior caretaker, with the strongest parenting skills who can provide a stable home environment. An example of the Court not taking this factor to extremes would be a recent Mississippi case where the father was awarded sole custody of his two daughters because he had superior parenting skills and provided a more stable home environment.
These two factors displace a lot of common myths about child custody. There are no presumptions that cannot be overturned with facts about what is in the best interest of the child. Tomorrow we will further explore what factors courts consider when awarding custody. If you are currently in, or may be in a custody suit, please contact our Memphis Divorce and Family Lawyers for a consultation.
Three Skills Needed to Rebuild After Divorce
June 20, 2008 | Leave a Comment
So you’ve worked with your Memphis divorce lawyer through the divorce process. You understand how to deal with the legal and financial issues, but you probably still don’t know how to deal with the emotional issues.
Post divorce emotions can range from feelings of confusion, self-doubt, anger, ambivalence and, in some cases shear relief. Life as you knew it is over and now you have the job of building a new life. This takes work, both external and internal work.
Externally, you need to find a new home, new friends, a new job, and learn to live life as a single person or single parent.
Internally, you have to shed your attachments to your ex and your marriage, working through issues with anger, dependency, security, trust, fear and more.
Whatever you are dealing with either externally or internally, you need to develop certain skills to help you in your transition to a new life.
Below are three skills that will help you rebuild after a time of adversity:
- Openness: Be willing to share what you are feeling and experiencing emotionally with others. If talking through our feelings didn’t help the healing process there would not be so many therapists in business. Stay open and honest with friends and family. Sharing details of your emotions promotes healing.
- Action: Moving forward with your life means having a willingness to take action. On days you would rather pull the covers over your head, force yourself out of bed. Put one foot in front of the other because any movement is forward movement and it is in a forward direction you want to move. Get up, get going and get on with your life. Start with baby steps and soon you will be moving forward by leaps and bounds.
- Belief: There is no healing without the belief that you can heal. Belief in ourselves and our ability to weather any storm is our greatest tool when it comes to moving through a time of adversity. Be patient, kind and loving with yourself. Push any self-doubt you have aside and believe in your own competence. If the odds seem against you, if you feel you aren’t going to make it, go against the odds. Develop discipline, push all negative self-talk out of your head and believe that you can become whom you want and live the life you desire.
Sharpen your new skills; make them a part of your daily life. Openness, action and belief in yourself will never fail to bring you through adversity in your life. One day you will look back and realize that all the sorrow and challenge you experienced during your divorce gave way to some of your greatest accomplishment.
Source: About Divorce
Legal Blog
May 30, 2008 | 3 Comments
This is a little off topic from my regular posts but I thought I’d mention that I’ve added f/k/a to my blogroll. They’ve got an interesting take and look at the legal world.
Check out there latest post here.
Should You Represent Yourself in Your Memphis Divorce?
May 30, 2008 | 1 Comment
The following post was originally written by Houston divorce attorney Scott Morgan.
Click Here to visit his Houston Divorce Blog.
In recent years I have noticed an ever increasing number of pro se litigants (people who represent themselves) at the family law courthouse. I mentioned this to a judge who estimated that 50% of her docket was comprised of pro se cases.
For several years now the basement of the Family Law Center has been occupied by a staff member of the Houston Volunteer Lawyers whose basic job is to assist the pro se litigants with the numerous document errors that are caught by the judges during what are supposed to be quick, easy uncontested prove up hearings.
It is my understanding that most of these people are using divorce form websites. They pay approximately $200 or so for the fill-in-the-blank divorce forms that are supposed to be acceptable in their jurisdiction.
Among the many problems of a divorce form website is the obvious difficulty in creating documents that are effective and current in all 50 states, not to mention addressing the various peculiarities of individual counties and individual judges. The fact that judges can and usually do find numerous errors in the documents during a very brief scanning at the prove up hearing is evidence of just how bad a job these form websites do.
My basic view on representing yourself is this: if you have no assets, no liabilities, no children, and you are just unable to financially afford a lawyer, then go ahead take a stab at representing yourself. However, for most people their divorce case will be the most significant financial and legal event of their life and it needs to be handled correctly. If it is not handled correctly the hidden error is likely to reveal itself at some later date.
Here is an example. Early in my career I was visited by a lady who had been divorced several years prior. Her ex-husband was now retired from the military and receiving his pension. During the divorce neither party had been represented by an attorney and the husband had handled the paperwork. She admitted to me that at the time she would have signed any document he asked her to and given him anything he wanted. She just wanted out of the marriage, an attitude shared by many going through divorce who later regret it.
Now she wondered if she had any right to a portion of his pension, since they had been married for about 15 of his 20 years of military service. I expected to find in the Decree the standard boilerplate language awarding all of retirement assets to the party in whose name it was held.
To my amazement the Decree was silent on the issue of retirement benefits division. It simply did not address that asset. You can guess the rest of the story. I filed a petition to divide undivided property and within a relatively short time she was receiving nearly $1000 a month out of husband’s pension.
In this case the end result was a just one and I was happy to help her achieve it. But you can bet her ex-husband felt otherwise. He could have easily avoided the result by not being so cheap and hiring a lawyer. Even the most mediocre of family law attorneys would not have made that mistake. Over the course of his life that error could end up costing him $100,000, $200,000, or more.
While this might seem like a dramatic example of a pro se error, I can give you many, many more just from the ones I have personally seen. The errors involve child support, visitation, conservatorship, alimony, property division, etc., you name it.
The bottom line is that your divorce case is far too significant and important to just hope you get it right. You need to be certain that it is handled correctly and you can only do this by hiring a quality divorce lawyer.
Selecting the Right Memphis or Mississippi Divorce Attorney
May 30, 2008 | Leave a Comment
Going through a divorce will be one of the most difficult undertakings in your life. So selecting the right divorce lawyer in Memphis or Desoto County to represent you is a very important decision. The following are a few criteria for use in helping to decide on the right divorce attorney.Experience
Any divorce lawyer you consider should have significant experience handling cases in your geographical area. A divorce lawyer who is experienced in your county will be familiar with the tendencies of that county’s judges and will be able to use this knowledge to your advantage. Additionally, that lawyer should practice primarily (preferably, exclusively) as a family law attorney. Frequently people will hire someone whose practice is mostly in another area of the law, thinking that any lawyer will do. However, family law is extremely specialized and in most states the statutes are modified frequently. It is a field that requires a constant study and a certain skill set in order to best represent a client.
Past Client Testimonials
Probably the best way to determine which lawyer is right for your is to hear what past clients have to say about the lawyer. While divorce can often be unpleasant, some divorce attorneys have more success at satisfying their clients. If you do not personally know someone who has been a client of a particular lawyer, you should consider asking for client testimonials. A good lawyer should have at least a few former clients who are willing to vouch for him or her.
Accessible
One of the most common complaints made by clients who become dissatisfied with their divorce attorney is that they were unable to communicate with the lawyer. It is very important that your divorce lawyer or someone on the staff be accessible and prompt in responding to your phone calls, emails, and requests for meetings. While you can ask about the office policy, this is another area where you can best evaluate by hearing what past clients have to say.
Fees
It is extremely important that you have a frank discussion with the lawyer about fees and what you can expect. Typically, the divorce lawyer will require the payment of a substantial retainer up front, against which that lawyer’s hourly rate and expenses will be charged. You should find out what the hourly rate is, how much the retainer will be, whether any portion of the retainer is refundable if it is not fully used, and how frequently you will receive invoices detailing the hourly charges and expenses. You should also find out how detailed and clear the invoices will be. Again, this is an area where you can get excellent information from past clients.
Are You Comfortable with the Lawyer?
While all the other issues are very important, there is one ultimate question you should ask yourself before hiring your divorce lawyer: are you comfortable with that lawyer and are you confident in his or her abilities? If the answer is anything other than a resounding “yes, absolutely” you should keep looking. Your case is too important to hire someone who does not inspire your confidence.
The Best Laid Plans; What to do When your Child Support Agreement is Not Working
May 28, 2008 | Leave a Comment
Circumstances change, especially when it comes to estimating expenses and income when arranging child support. The payments you receive may not be enough to support your child, or you may not be able to afford your payments. If there has been a substantial change in the circumstances of the child or the parent, then the proper response may be a child support modification. For example, Mississippi courts have held that the following events, if unforseen at the time of the last settlement, may warrant a modification.
- The increased financial needs of older children
- Inflation
- An increase in childs physical or psychological healthcare needs
- A change in either parents earning capacity
- Any health issues or special needs of the parents
- Tax liability of the noncustodial payor
Generally an increase in child support payed is supported by an increase in parental income or in the cost of raising the child, including the childs decision to attend college. Decreases in child support payment will be granted for non-voluntary reductions in the payors income, the emancipation of the child, or upon the child chosing to move in with the non-custodial parent. A modification will not be granted on the basis of new debt, remarriage, or the birth of additional children.
If you have any questions about your Mississippi or Memphis child support agreement, or if you have been contacted about a child support modification, please contact the Ferrell Firm. Our Memphis divorce lawyers can help you through the entire child support payment process.
Collaborative Divorce: “It’s all the rage”
May 2, 2008 | 2 Comments
“They call it “collaborative divorce.” It’s apparently all the rage right now.” from the movie Juno
Collaborative Divorce is a “new way to resolve disputes respectfully” and handling divorce out of court. Our Memphis Divorce Lawyers would like to set the record straight.
You can refer to this Free Collaborative Divorce Kit provided by the International Academy of Collaborative Professionals for more detailed information about Collaborative Divorce.
Divorce can be an unfortunate and expensive situation. But it doesn’t have to be that way. Collaborative Divorce Professionals are a great resource and alternative for dividing families that have contested issues and the financial resources to fight them out. You can settle your divorce out of court and inexpensively… with simple professional guidance. If you want to fight out your divorce, you’ll have to spend a lot of money, whether you settle with collaborative professionals or in court. Collaborative Divorce is the best alternative to litigating divorce in court. But don’t spend money on the “new rage” divorce. Our Memphis Divorce Lawyers can assist you settling an affordable divorce, and enlisting other professional when needed and only if a financial option.
For the average family, Collaborative Divorce is a great guiding principle, but don’t feel that it is the only way to settle your divorce out of court. Mediation is highly encouraged by all Tennessee divorce professionals, and is an option at any stage of your divorce.
Tips for Memphis Parents: Out of State Visitation
April 30, 2008 | 1 Comment
Here is an interesting posting from the Women’s Divorce Blog about Out of State Visitation.
Our Memphis Divorce Lawyers have selected the following excerpts:
How is long distance visitation handled?
“You have to commit to helping them have a relationship… which may mean some inconvenience for you.”
Would the court approve long-distance visitation for a toddler?
“…it might not be a problem, particularly if transportation times can coincide with nap times.”
Will I have to share travel expenses if my ex moves?
“…the one who moved, …not …reasonable to expect you to pay for and arrange travel for your child.”
How is visitation set up if the Dad will be living in another country?
“The key is to find a way for them to maintain a relationship while still allowing them to have a sense of permanency in one home.”
Be sure to read the entire article and the helpful links!
James Ferrell featured in the Memphis Daily News
April 29, 2008 | 2 Comments
Just last week I was interviewed and featured in the Memphis Daily News. The article addressed how we are changing the way legal fees are handled in the Memphis community by family, estate and probate lawyers.
At our firm we handle almost all of our cases on a fixed fee basis. This is quite different than most other attorneys here in the Memphis area. The Daily News found this interesting and decided to feature us in their April 17th edition. If you are a subscriber to the Daily News you can go to their website here to read the feature.
