Mississippi Family Law Blog

Constitutional showdown expected over Judge's ruling prohibiting father from taking daughter to church

An Illinois man going through a divorce was ordered by the Court not expose his daughter "to any other religion than the Jewish religion during his visitation." Seems Dad, who is Catholic, wanted to test this order and took his three-year-old daughter to Holy Name Cathedral. Another judge will now rule on whether he should be held in contempt for violating the court's order.

However, a Motion to Dismiss filed by the father's attorney argues that the Order is vague as it fails to define what encompasses the "Jewish religion". The law is clear that in order to be held in contempt, it must be clear what they were prohibited from doing. More importantly, the motion argues that the Court is unable to make the determination as to what constitutes "Jewish religion" as a result of the ecclesiastical abstention doctrine. Essentially, this doctrine prohibits a court from examining matters of religious doctrine as they are protected from government interference by the First Amendment to U.S. Constitution. Thus, the Court cannot say what is or is not the Jewish religion. And if it cannot determine what is the Jewish religion, then it cannot determine whether the father violated the court order.

I imagine the Court's ruling will not be the last we hear of this case. The story was previously on the news. See the video below.

Reported by Robert Kisselburgh, Mississippi Divorce Attorney

Mississippi father involved in custody battle for daughter

WLBT has a story about a Betonia, Mississippi father trying to keep his daughter here in Mississippi despite a Utah court ordering him to return the daughter to her mother and her step-father, who allegedly hit her causing bruising and threatened to kill her.

Click here to read the story.

Dad going to jail for having kids beat Mom with baseball bat

A Kansas man was convicted of attempted first-degree murder, aggravated kidnapping, and contributing to a child's misconduct. What did he do? He convinced his 12-year-old daughter and 15-year-old son to kill his ex-wife by beating her with a baseball bat. The kids attacked their Mom, Dad came over to help the kids finish Mom off, and luckily Mom got away. The daughter was granted immunity to testify against her father. The son will be tried as a juvenile, according to the article.

While the article does not say how long he will spend in prison, it probably will not be enough time.

More Fathers get custody of children in divorces

In Mississippi, as well as other states, more women are working and becoming the primary breadwinner in the family. One downside some women are finding in working so hard is that their husbands are getting primary custody of the children in a divorce. In a recent New York Times article, it was stated:

There are now 2.2 million divorced women in the United States who do not have primary physical custody of their children, and an estimated 50 percent of fathers who seek such custody in a disputed divorce are granted it.

With more women in the workforce and some fathers opting to stay at home to care for children, this trend will continue.

Reported by: Robert Kisselburgh, Mississippi Divorce Lawyer

Lamar County divorce case partially remanded back to Chancellor for third look

Sometimes a case just never ends. That has to be the feeling for a divorce case out of Lamar County, Mississippi. Last week, the Mississippi Supreme Court sent the case back to the Chancellor for a third trial. In Lowrey v. Lowrey, the original final judgment of divorce was signed in September 2002. The wife appealed that initial decision. In 2005, the Mississippi Court of Appeals affirmed the divorce, but reversed and remanded the case for the Chancellor to decide "unresolved matters of child custody, child support, property division and alimony." A second trial was held by a different Chancellor from the first case. And to add to the problem, the case was heard on different dates (2006 and 2007), a common occurrence in Chancery courts in Mississippi. Both parties appealed the final decision by the Chancellor.

The Mississippi Supreme Court recognized this "piecemeal" litigation, where the Chancellor will hold multiple hearings to decide the issues, is a problem with our Chancery Courts.

Hearings can be, and often are, separated by weeks or even months, as occurred in this proceeding. Chancellors are required to follow the testimony of witnesses, review documents offered as exhibits, and attempt to make contemporaneous notes. Trial judges are not afforded the advantage of appellate courts to review the full record of a case without interruption.

Continue reading "Mississippi Supreme Court sends case back to Chancellor for a third trial" »

Tennessee law firm sued for using e-mails obtained using spyware

A lawsuit was filed against a Tennessee law firm for $2,000,000 dollars for its alleged use of e-mails in a divorce action. According to the article, the lawsuit claims the ex-wife loaded spyware on her then husband's computer and intercepted e-mails. The e-mails eventually were given to the law firm representing the ex-wife in the divorce and once her husband found out, he sued the law firm for violations of federal and state law.

Let me make a point--just because the software is available for sale does not mean its use is legal. Many times software is sold for one purpose--parents keeping track of their children's activities on a computer--and then is used for another, possibly, illegal activity--spying on someone. When spouses are going through a divorce and one spouse uses that software to intercept e-mails sent by the other spouse to third parties, it usually means you may be violating federal law. Federal and state laws govern the interception of electronic communications and you can find yourself in hot water if you use the software in an illegal manner.

See my previous posts, here and here, on the issue and make sure you consult an attorney before you act. Not only can you face both civil and criminal penalties for illegally intercepting electronic communications, but others who use the data gathered can also face penalties.

At the Kisselburgh Law Firm, we have experience representing clients going through a divorce. Call us at 601-936-4040 or contact us online to set up a consultation if you are contemplating a divorce.

Mother in custody after hiding daughter from father for 6 years

It is every divorced parents' nightmare. Your ex-spouse takes your child and does not come back. In 2001, Kostas Lazarides was awarded sole physical custody of his daughter in what was described as a bitter divorce. The two moved from Tennessee to Montana, but returned three years later for the summer. While in Tennessee, Kostas agreed Hope Lazarides, the mother, could keep their daughter during that summer until school started. That was the last time Kostas saw his daughter until he was reunited with her this week after 6 years of separation. The daughter was found in Dallas, Texas living with her mother. According to the article, Hope Lazarides is now facing charges of kidnapping and custodial interference in Tennessee.

Mississippi court holds joint physical custody does not mean equally divided custody

In Mississippi, the Court usually awards one parent physical custody while granting liberal visitation to the other. However, in some cases, courts can award the parties joint physical custody. Many parents believe that means custody on an equally divided basis. That is not necessarily true. Mississippi Code §93-5-24(5)(c) provides that "joint physical custody' means that each of the parents shall have significant periods of physical custody." What does that mean?

In a recent case out of DeSoto County, MIssissippi, the Court Appeals upheld a chancellor's ruling giving the mother more physical custody than the father despite awarding the parties joint physical custody. In this case, the mother was awarded physical custody during the child's time in school and the father was given all spring breaks as well as the summer except for two weeks. Alternating weekends, Thanksgiving Day, and the Christmas holiday were equally divided. The Court found that the chancellor's decision was not an abuse of discretion--the standard required to reverse the ruling. The Court noted that the statute did not require an equal amount of time and the father was granted a significant period of visitation. Finally, the Court noted that the child's grades suffered when the child was "shuffled" between parents during the school week.

If you are contemplating a divorce or involved in a custody dispute, you should consult with a lawyer to ensure you fully understand the terms used in any marital dissolution agreement or custody arrangement. At the Kisselburgh Law Firm, we can discuss these matters with you to ensure your rights are protected. Call us at 601-936-4040 or contact us online to set up a consultation.

Mom who bugs Teddy Bear gets sued

A Nebraska woman is being sued by her ex-husband after she placed a listening device in their 4-year-old daughter's teddy bear. Embroiled in a child custody battle, Mom was wanting to get some information to use against ex-husband. Problem is that it is illegal in Nebraska, as well as many other states including Mississippi, to tape a conversation where at least one person has not consented to the recording. According to the article, many of the people whose voices were recorded by the teddy bear, including court personnel, have joined in the lawsuit seeking damages against the Mom, her father, and her former attorneys.

For those involved in divorce or child custody proceedings, proceed with caution if you are thinking about recording your ex-spouse's conversations. There are both state and federal laws which make it illegal to intercept telephone conversations, e-mails, or other electronic messages. Seek the advice of an attorney so you know what the law allows.

Rankin County grandfather gets two life sentences after killings over child custody dispute

A Rankin County, Mississippi man pled guilty to shooting and killing his step-daughter and her husband during a child-custody dispute. The judge sentenced him to two life sentences. According to the Clarion-Ledger article, the step-daughter and her husband were attempting to pick up their 10-year-old son after a Hinds County Chancellor granted them custody of their child following a custody dispute. The man's wife is awaiting trial on murder charges.

What is standard visitation?

Although shared physical custody is occurring more now than in the past, the typical child custody situation following divorce in Mississippi is an order of joint legal custody (decision-making authority) and primary physical custody to one parent with reasonable visitation to the other.

But what is “reasonable”? Most courts in Mississippi do not have written guidelines for visitation schedules. Reasonable visitation varies from case to case and the chancellor has a lot of discretion as to what is reasonable. The paramount test is “what is in the best interest of the child” and that can change depending on the age of the child. Some chancellors feel longer visits for younger children are not in the best interest of the child. Additionally, if you work the third shift Tuesday through Saturday or if you work four ten hour shifts at the hospital on varying days, an “every other weekend” approach may not work for you and your children.

Continue reading "Standard Visitation in Mississippi divorces" »

Working together for your children--joint or shared physical custody

Shared physical custody of children following a divorce has become more prevalent over the last decade. While joint legal custody (which provides joint decision-making authority for the child) is quite often ordered by the courts, joint physical custody is still relatively unusual.

Joint or shared physical custody means that each parent has significant periods of physical custody of the child. The schedule could allow for monthly, weekly or other regular transitions between parents. The court takes a very close look at the circumstances to determine if such an arrangement would be in the best interest of the child.

Continue reading "Joint or Shared Physical Custody" »

Parental Alienation--pitting your child against the other parent

Parental alienation – a hot topic in family law across the nation - is defined as a systematic alienation of a child from one parent, purposely caused by the other parent. A poisoning, if you will, of the child against a parent because of the words and actions of the other.

More and more, courts are being called on to review custody and visitation arrangements based on claims of parental alienation. In Mississippi, it is very unusual for primary physical custody to be modified based on interference with custody or visitation alone. Unusual but not impossible, especially when programmed parental alienation can be proved.

Continue reading "Parental Alienation" »

Judge overrules father's discipline of 12-year-old

From across the border comes a story out of Quebec (Canada for those rusty in their geography) where a judge overruled a father who sought to prevent his daughter from going on a school trip. According to the article, a divorced father had custody of his 12-year-old daughter. Dad cut off daughter's internet access after she chatted on a website he blocked. She then used a friend's computer to post "inappropriate pictures of herself" to this website. After Dad found out, he told the daughter she couldn't go on a three-day school trip. Not at all happy with the punishment, daughter moves in with Mom. What does Mom do? She says daughter can go on the trip. One problem--the school required the consent of both parents or a court order. Dad refused to give his consent, so Mom and daughter took their case to court.

In an unbelievable ruling, the Judge sided with the mother and daughter, overruling the father's discipline. The father is appealing the ruling and says he refuses to take his daughter back "because he has no authority over her." This is definitely a case of a judge overstepping the boundaries between parenting and judicial oversight of child custody matters. Hopefully, the appellate court will reverse the decision.

Child Custody--a child's perspective

Child custody is a difficult part of divorce. I've listened to a number of divorced parents talk about the problems they have in getting the ex-spouse to abide by the terms of a divorce decree when it comes to child custody. Usually, one parent says the decree says I get them and that is the way it is. However, did the parent stop to consider what was going on in the child's life? While having both parents active in a child's life is good for them, parents also need to realize that sometimes you need to work around those problems for the child's sake.

What follows is a portion of a recently published article entitled, "The Halloween Story: A Lesson for Divorced or Separated Parents. The story goes like this:

Continue reading "Divorce through a child's eyes" »

Do children have the final say in who they live with following divorce? Not in Mississippi

In my previous post, I spoke about a child custody case out of DeSoto County, Mississippi. In that case, the 16-year-old daughter and 12-year-old daughter both testified in court that they wanted to live with their father as opposed to their mother who had custody. Many believe that once a child reaches a certain age, their decision should be final on who they live with. Not in Mississippi.

This week the Mississippi Court of Appeals again reiterated the rule in Mississippi. It stated:

Continue reading "The child's word is not the last one in a Mississippi divorce" »

Proof needed in change of custody suit

This week the Mississippi Court of Appeals upheld a DeSoto County chancellor’s denial of a father’s request for change of custody. In Lewis v. Lewis, the mother was granted custody of the couple’s three children when they divorced. Fourteen months later, the father moved for a change of custody. The father had remarried and claimed to have a more stable home environment than his ex-wife. He also thought there were several negative changes at his ex-wife’s since the divorce. The ex-wife’s boyfriend and her youngest son had a physical altercation (the evidence showed he grabbed the boy’s arm once); the son was in counseling; another child was acting out and vandalizing property; and the son was three grade levels behind in school for reading. The father also thought his ex-wife’s boyfriend had a negative influence on the children by spending too much time at her house and making sexual advances towards the mother in the presence of the children. He also alleged that the children spent too much time in their grandmother’s care.

As stated in a previous post, the key in a change of custody is to show a material change in circumstances since the previous custody order which adversely affects the child’s welfare. There is no bright line rule as to what constitutes a material change in circumstances. In this case, a number of factors worked against the father.

Continue reading "Change in custody denied in Mississippi case " »

In Mississippi, moral fitness plays role in child custody

Last week, in a case out of Rankin County, the Mississippi Court of Appeals affirmed the chancery court awarding custody of the couple’s minor child to the father. At trial, there were allegations of adultery, alcohol use, and downloading pornography onto the family computer. In fact, both parties called computer experts to testify at trial in an attempt to establish who downloaded the pornography.

In awarding custody to the father, the chancellor called into question the moral fitness of the mother, one of the Albright factors, given her admitted adultery, alcohol use and traffic violations in addition to an unstable work history—five to six jobs in a three-year-period.

Continue reading "Mississippi Court upholds child custody to father" »

In a divorce, your electronic musings can end up in front of the judge

For some reason, many people believe there is some anonymity when they send an e-mail or post something online. It is amazing what people will put in an e-mail or post on a MySpace or Facebook page. Some of the most damaging evidence I have used in trial were e-mails. For some odd reason people will say things in e-mails they would never say in public. What is bad about e-mails and online postings is that those words are there for others to read. This is especially true in divorce and child custody cases. You can expect that someone will look at your e-mails and your postings to see what you are telling others.

This was confirmed by a recent article in the National Law Journal which stated, "Armed with printouts from site such as Facebook and MySpace, attorneys have used pictures, comments, and connections from these sites as powerful evidence in the courtroom." Listen up--your online postings are not private. They can become evidence either to prove you are doing something you should not be doing or used to attack your credibility when you have denied something. Look at my previous posts on these issues here and here.

Mothers favored over fathers in child custody disputes in Mississippi?

Here is an interesting article today from the Clarion Ledger on whether mothers are more likely to get custody of children in a Mississippi divorce. According to the article, biological fathers are the custodial parents in only 3% of the child custody cases in Mississippi. However, the article points out that the overriding standard in Mississippi is what is in the best interest of the child. You can see my previous posts on these issues here, here or here.

Can Johnny decide he wants to live with Dad?

Maybe. Mississippi Code 93-11-65(1)(a) provides in part:

“If the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child.”

Continue reading "Do children have a say in which parent they live with?" »

Can the judge change custody after the divorce?

The short answer is it depends. According to Mississippi courts, the test for modifying child custody is that the non-custodial parent must prove by a preponderance of the evidence (more likely than not):

• That a substantial change in circumstances has transpired since issuance of the custody decree;
• That this change adversely affects the child’s welfare; and
• That the child’s best interest mandates a change in custody.

Continue reading "Child Custody (Part III)—What if something changes after the divorce. Can child custody be modified?" »

Does Dad have a chance of getting custody of his younger children in a Mississippi divorce?

For many years, fathers of younger children were discriminated against by a belief that children of a younger age (“tender years”) were better suited to be cared for by their mother rather than father. Courts regularly awarded custody of younger children to mothers over equally qualified fathers. Fortunately, this doctrine, know as the “tender years doctrine” in Mississippi, has faded some with time.

In a case out of Madison County, the Mississippi Court of Appeals ruled on this issue when a father was granted custody of his two 5 year old boys. The mother, who was living with an alcoholic man who had been arrested several times, argued that the tender years doctrine should have compelled the chancellor to grant her custody of her boys.

Continue reading "Do Mississippi courts favor mothers having custody of younger children?" »

How does the judge decide who gets the children?

Jackson's Clarion-Ledger recently reported that Mississippi Judge Leslie Southwick’s nomination to the 5th Circuit Court of Appeals is stalled in the U.S. Senate. Opponents of his nomination point to two cases he ruled upon while a member of the Mississippi Court of Appeals. In one of the cases, he upheld a decision to give custody of a child to the father where the mother was bisexual. While such headlines grab attention, it does little to explain the law in Mississippi.

Continue reading "Child Custody (Part II)--What factors are used in determining child custody in Mississippi?" »

What happens to the children?

Divorce is bad enough on both parties when there are no children. However, if you have children and are contemplating a divorce, many more issues arise. How will we tell the kids? Who will tell the kids? Where will the children live? Do we split them up? What are we going to do if one of the parents moves out of town? How often will they visit the other parent who does not have custody? Who is going to make the decisions regarding the child? These are just a few of the multitude of issues which arise in the context of child custody. There are no easy answers, but if you and your spouse can not come to an agreement in the best interest of the child, then a Mississippi judge will provide those answers.

Continue reading "Child Custody (Part I)—What will happen to the children in a Mississippi divorce? " »

Can I keep my child from my ex-spouse who is a “dead-beat” when it comes to paying child support?

The simple answer is no. Visitation and support are two legally independent matters. They are not tied to each other. If one parent does not make child support payments, the other parent can not legally keep the children from that spouse. To do so would risk being held in contempt of court. You do not want to be held in contempt of court as you risk being jailed, or at a minimum, you will probably be required to pay the attorney’s fees of your spouse. If one spouse does not pay child support, you need to contact an attorney to have those legal obligations enforced by the court. You may also get assistance by contacting the Mississippi Department of Human Services, Child Support Division.

More importantly, don’t keep the kids from their other parent. Remember, the children’s welfare is paramount. Even if one parent is a “dead-beat” non-paying spouse, that person is still the parent of your child and the child needs to have a relationship with both parents.