Q & A: Firing an Attorney

Q:

I want to change the child custody order from my previous divorce but I don’t want to use the same lawyer who handled my divorce, do I need to fire him before I hire you guys?

A:

In regards to firing your current attorney, my first question would be whether you actually are currently represented by an attorney.

If your divorce is final then the original scope of your agreement with your current attorney would most likely already have ended. Attorneys are generally retained for specific matters only. This means that your attorney would have been retained to represent you only in your original divorce matter. Once the divorce was final then you would no longer be represented by him, and there would be no need to “fire” him. You would be free to hire a new attorney for any new matter that comes up. A change of the parenting plan to give you more custody would be a new matter.

If you have not had him begin work on this new matter then you do not need to “fire” him. You can simply call any attorney and begin a new relationship with them.

Of course, if your old attorney has already begun to work on this new matter then you would need to let him or her know that you are going to seek new representation and will no longer need their services. I suggest that you both call their office and mail them a letter informing them of this decision and asking them to release all your files to you. But it is very important that you send them a letter.

In this situation they would be entitled to any fees for work they have completed up until that point. This would possibly include any non-refundable retainer if this was paid by you.

Unfortunately custody modifications can be one of the most expensive types of family law issues. (In reality the most expensive part of the original divorce is usually the determination of child custody.) Unless both parents are in agreement to the modification, these types of issues almost always result in a trial in front of a judge. The court will also need for there to be some type of reason to grant the custody modification, if contested.

Mother’s don’t automatically get custody of the children in a divorce?

The factors that go into determining child custody in a divorce are many, and are not cut and dry.  Laws in Tennessee and Mississippi provide several considerations for judges to reflect on before appointing one parent or the other as the primary residential parent. One factor is made explicitly irrelevant though: both states refuse to allow the gender of the parent to affect whether or not they are named the primary residential parent:

Tennessee Law States:

“It is the legislative intent that the gender of the party seeking to be the primary residential parent shall not give rise to a presumption of parental fitness or cause a presumption in favor of or against such party.”  -  Tennessee Code § 36-6-412

Mississippi Law Says:

“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.”  -  Mississippi Code § 93-5-24 

We have found this especially difficult to get parents to believe, on both sides – as a mother, you are not guaranteed custody simply for being female, and as a father, you are not automatically denied custody simply for being a male.

Do not make assumptions without knowing the laws regarding your case. Contact a good Memphis divorce lawyer or Memphis child custody lawyer today to learn more about the factors that are relevant when determining child custody!

Do Non-Custodial Parents have rights in Tennessee or Mississippi?

We have heard from many of our clients and friends the myth that noncustodial parents really have no rights at all when it comes to information about their children.

Fortunately, that is just not true. Both Mississippi and Tennessee law state that noncustodial parents have every right to important records about their children, including mental, dental, and school information.

Tennessee gets really specific, stating that noncustodial parents have the right to know their child’s teachers, access to report cards, attendance records, and class schedules. This is all hinged on the fact that the noncustodial parent’s rights have not been legally terminated due to adoption (of the child or children by someone else) or by a termination of parental rights proceeding in which they gave up their rights.

So don’t let a myth become your fact – you have every right as a noncustodial parent to know about your child’s medical and school situation!

Approved Parent Education Seminars in Memphis, TN

Click here for a PDF document provided by the Circuit Court of Shelby County.

Agape Child and Family Services, Inc.

111 Racine Street

Memphis, TN 38111

(901) 323-3600

Christian Psychological Center, Inc.

3978 Central Avenue

Memphis, TN 38111

(901) 458-6291

Doyle Family Counseling

Contact Person: Matt Doyle, MS, LPC

110 Timbercreek Drive

Cordova, TN 38018-4234

(901) 309-0719

The Exchange Club of Memphis

2180 Union Avenue

Memphis, TN 38104

(901) 276-2200

Family Services of the Mid-South

Contact Person: David Frankle

2430 Poplar Avenue

Memphis, TN 38112

(901) 324-3637

Paula Honeycutt

Offered at: Collierville Community Center, Agricenter International & in Cordova

(tel) (901) 755-7747

(fax) (901) 737-1534

Jewish Family Services

6560 Poplar Avenue

Memphis, TN 38138

(901) 767-8511

Mind-Steps

6401 Poplar Avenue, Suite 306

Memphis, TN 38119

(901) 869-0520

Turning Point Counseling

Contact Person: Bobby Scott, MA, LMTT

7183 Goodman Road, Suite D

(662) 893-6556

Southwest Tennessee Community College Continuing Education

5983 Macon Road

Memphis, TN 38134

(901) 333-4207

(901) 333-4208

Classes held on several campuses

University of Tennessee

Agricultural Extension Service

Contact Person: Cathy Faust

5565 Shelby Oaks Drive

Memphis, TN 38134

(901) 544-0243

Parental kidnapping – Just Don’t Do It!

Divorces can get ugly, messy and downright hideous sometimes. This is usually the case when children are involved and one of the parents decides to take the children away from the other by kidnapping.

Parental kidnapping is a crime and it can land you in a lot of hot water as well as cause you to permenantly lose custody of your children when you’re found. It also causes untold strife and harm on the children. Psychologists say the affects of being torn from a parent can damage children forever. No matter how angry or upset you are DO NOT kidnap your child.

In Tennessee parental kidnapping is called custodial interference. Custodial interference is defined as the following:

The act of a natural or adoptive parent, step-parent, grandparent, brother, sister, aunt, uncle, niece, or nephew of a child younger than eighteen years of age to:

• Remove the child from this state knowing that the removal violates a child custody determination, the rightful custody of a mother, or a temporary or permanent judgment or court order regarding the custody or care of the child;
• Detain the child within this state or remove the child from this state after the expiration of the noncustodial natural or adoptive parent or guardian’s lawful period of visitation, with the intent to violate the rightful custody of a mother, or a temporary or permanent judgment or a court order regarding the custody or care of the child;
• Harbor or hide the child within or outside this state, knowing that possession of the child was unlawfully obtained by another person in violation of the rightful custody of a mother, or a temporary or permanent judgment or a court order; or
• Act as an accessory to anything listed above. Tenn. Code Ann. § 39-13-306 (2007).

It is also the offense of custodial interference for a natural or adoptive parent, step-parent, grandparent, brother, sister, aunt, uncle, niece, or nephew of an incompetent person to:

• Remove the incompetent person from this state knowing that the removal violates a temporary or permanent judgment or a court order regarding the custody or care of the incompetent person;
• Harbor or hide the incompetent person within or outside this state, knowing that possession of the incompetent person was unlawfully obtained by another person in violation of a temporary or permanent judgment or a court order; or
• Act as an accessory to anything listed above. Tenn. Code Ann. § 39-13-306 (2007).

It is a defense to custodial interference that the person who removed the child or incompetent person reasonably believed that the failure to remove the child or incompetent person would have resulted in a clear and present danger to the health, safety, or welfare of the child or incompetent person. It is also a defense to custodial interference that the individual detained or moved in contravention of the rightful custody of a mother, or of the order of custody or care, was returned by the defendant voluntarily and before arrest or the issuance of a warrant for arrest.

Custodial interference is a Class E felony, unless the person taken from lawful custody is returned voluntarily by the defendant, in which case custodial interference is a Class A misdemeanor.

 Thanks to our friends at the Tennessee criminal law blog for providing us with this information.

Can you lose child custody because you live with your boyfriend or girlfriend?

Question: I have custody of my children now but my wife wants to modify custody because I am living with my girlfriend who is also my fiance’, will the Court will give custody of my child to her mother who never sees her becasue of this. How can that be?

Answer: If you are living with a girlfriend/finance’ to whom you are not married, the Court will consider that to be an “immoral environment.” As such, it will be a factor, but it is only one of many factors that the Court will consider in a custody case. In some cases it can be the determining factor, whereas in others it might not make as much of an impact on the outcome.

The bottom line is that you should tell your Memphis divorce lawyer all of the facts of your case (both good and bad) so that he can then give you the appropriate advice. Without knowing all of the facts of a particular case, it is virtually impossible to say how much of a factor any one item will or will not be (except for things such as child abuse or neglect).

What do Courts Look at in a Custody Dispute III

The third installment on our series we examine how courts consider either parents practical abilitities to care for a child by considering the capacity, age, and physical and mental health of the prospecitve caregiver.

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5. Capacity

This is generally a court’s exploration of employment responsibilities and the compatibility with that parents work requirements and their ability to provide childcare. It is a strictly time based inquiry. The parent that can spend the most time with the child is supported by this factor. Relevant issues include the ability to work from home, take the child to work, pick the child up from school, be home during the summer break, and the proximity of the parent’s worksite to the child.

6. Age, Physical and Mental Health of the Parents

Physical disability will only matter if it impairs a parent’s ability to care for a child. Evidence of serious mental or emotional illness may support a denial of custody in severe cases. In less severe cases the inquiry goes yet again into the stability of the home life provided for the child. Past mental or emotional problems will not bar custody without a showing that they affect the current home environment. Abuse of Drugs, prescription drugs, and alcohol may cause a parent’s mental health to be questioned; especially when backed up by DUI or other convictions. A parent’s use of alcohol without abuse will not adversely affect the parent. Age is rarely discussed and is not a prime consideration unless the age is so advanced it will impair the ability to raise a child.

Continue HERE for Part I of What Courts Look at in Custody Disputes

For Part II of What Cours Look at in Custody Disputes Continue Here

What do Courts Look at in a Custody Dispute II?

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.

Read PART 1 about what memphis courts look at concerning child custody disputes.

What do Judges Look at In a Custody Dispute ?

  

     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.

“Gap Year” before College: What can this trend mean for divorcing parents?

Upon reading an interesting article from MSNBC.com Parenting and Family Section about universities encouraging students to take a “gap year” between graduating high school and starting college, our Memphis Divorce and Family Lawyers wanted some feed back from local parents.

Should your child have a ‘gap year’ before college?

Some students need a break after high school — and some colleges approve

Video

By Danielle Wood

updated 3:58 p.m. CT, Tues., April. 22, 2008

So what does that mean for divorcing parents in Memphis?  As everyone know, the legal obligation to pay child support ends when your child turns 18 or essentially finishes high school.  But any parent can agree, they aren’t turning their child loose at 18 either.  Co-parenting your child is a relationship that will continue well after your legal obligations have ceased.

 In addition to the suggested issues and solutions from the article, here are few more thoughts on the topic:

Have the Money Talk…make sure you, your spouse and your child understand where the money is coming from and making a budget for the year.  Your child may not fully understand the legal nature of child support, and you don’t want the embarrassing situation that can arise when they question why no longer are paying/receiving.

Get In First… don’t encourage the year off as a last ditch retaliation. Don’t all your teenager to manipulate your separation as a means to avoid growing up and taking responsibility.

Create a Plan B… if your child does not get into the college of their choice, don’t blame the other parent.  Encourage your child to work or go to community college to improve their competitiveness.  Remember that even though the legal obligation may cease, your child is still relying on you to emotionally support them.

Put it in Writing… having your child lat out their gap year plans in paper, is not part of your divorce agreement.  Be honest with your children, but don’t explain the terms of property division or support agreements that won’t mesh with your child’s planning efforts.  You’ll always be your child’s parent.

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