Mississippi Family Law Blog

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.

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Family Law News

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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" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation

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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" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Mississippi Family Law Update

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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 " »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Mississippi Family Law Update

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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" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Mississippi Family Law Update

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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.

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Divorce , Family Law News

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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.

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Family Law News

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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?" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Mississippi Family Law Update

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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?" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Family Law Basics , Mississippi Family Law Update

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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?" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Mississippi Family Law Update

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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?" »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Family Law Basics , Family Law News

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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? " »

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Family Law Basics

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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.

Posted by Robert Kisselburgh | Permalink | Email This Post

Posted In: Child Custody & Visitation , Child Support

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