February 2011 Archives

Custody and Visitation in Mississippi upon Parental Deployment or Mobilization.

February 22, 2011,

In my practice I have had the opportunity to assist numerous military service members with issues relating to divorce, paternity, child custody and visitation. Many of the issues these service members confront relate to custody and/or visitation problems occurring while the individual is on temporary duty or under deployment or mobilization orders ("deployed" or "deployment"). A soldier on deployment should be focused on his/her duties, not worried about whether he/she will be able to speak with the child during deployment or worried about what will happen with the child at the end of deployment. In light of these concerns, Mississippi has enacted legislation to protect the parental rights of its deployed service members.

This law, Miss. Code Ann. 93-5-34, was passed for the purpose of swiftly and efficiently resolving matters involving custody and visitation when a parent is deployed and to facilitate continued communication between parents and their minor children when a parent is deployed. This statute protects our deployed service members in the following ways:

(1) if the service member has sole or joint physical custody of a child, by limiting the duration of any temporary custody orders to no longer than ten (10) days after the deployed parent returns; by prohibiting the use of the service member's deployment as a factor to be used in any custody modification action; and, by requiring that the non-deployed parent make the child available to the service member for telephonic, webcam, and email contact with the child during deployment;

(2) if the service member has visitation rights with the child and is deployed, by allowing a court to delegate the service member's visitation rights to a family member with a close and substantial relationship to the minor child during the duration of the service member's absence;

(3) by allowing service members who receive deployment orders an opportunity to an expedited hearing in custody and visitation matters if certain conditions are met; and,

(4) by allowing the service member on deployment to present testimony and evidence by affidavit or electronic means in custody and visitation cases if certain conditions are met.

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Senate Refuses to Create Additional Ground for Divorce in Mississippi

February 18, 2011,

Today the Mississippi Senate has defeated a bill that would have have created a 13th Ground for Divorce in Mississippi (bona fide separation for five years or longer). Senate Bill 2652 would have given a spouse grounds for divorce if he or she had been away from an abusive situation for five (5) years or longer.

The bill was defeated Thursday on a vote of 81-39 although the bill had earlier passed the Senate.

WXVT Channel 15 reports that the bill would have made it easier for spouses, usually wives, to file for divorce when that spouse leaves home to avoid domestic violence and the other spouse will not agree to filing for divorce.

State law already allows a spouse who is abandoned to file for divorce under desertion, but existing law does not address when one innocent party leaves home and the other will not give them a divorce.

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Child Visitation Rights in Mississippi

February 17, 2011,

In Mississippi, "visitation" is the time a child spends with a noncustodial parent and is a very important subject for many parents involved in divorce or custody cases. For example, a parent who is not awarded sole or joint physical custody of his or her child still wants to be an important part of the child's life and spend as much time with that child as possible. Visitation should allow continued significant contact with the child under circumstances that foster a close relationship and bond.

In Mississippi, a noncustodial parent will normally be allowed visitation with his or her child. Absent danger or other potential detriment to the child, the chancery court will normally award "standard" or "liberal" unrestricted overnight visitation to a noncustodial parent. In Mississippi, this is two (2) weekends a month until Sunday afternoon, at least five weeks of summer visitation, and alternating holiday visitation. More or less may be awarded depending on the specific facts of the case. For example, the existence of unusual work schedules, extreme geographical distance between households or disruption to a child's routine may justify deviation from standard visitation.

It is important to remember that an Order or Agreement providing for visitation should be highly structured, clearly specifying all dates of visitation, the exact times of transfer and other arrangements including which party is to bear the cost of transportation for visitation. Ambiguous visitation provisions should be carefully avoided as they routinely result in continuing post-divorce litigation.

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Child Support Guidelines in Mississippi

February 4, 2011,

In this post I have decided to write about a non-custodial parent's obligation to support his or her child in the State of Mississippi. Mississippi courts take the obligation of a parent to support a child very seriously. In Mississippi, child support is routinely awarded during a divorce, paternity, separate maintenance or custody action and the Mississippi child support guidelines provide that a "noncustodial" parent should pay the following percentage of his or her Adjusted Gross Income ("AGI") (gross income minus mandatory deductions) in support of children:

[1] 14% for one child;
[2] 20% for two children;
[3] 22% for three children;
[4] 24% for four children; and,
[5] 26% for five or more children.

The statute also provides that the guidelines are presumptively correct for individuals with an adjusted gross yearly income between $5,000 and $50,000. While the court may award an upward or downward adjustment from the guidelines based on expenses of the parents, the needs of the children, or other particular facts of the case, there are also situations where the guidelines may not apply at all. For example, the guidelines may not apply in a situation where joint physical custody is awarded, as the guidelines contemplate a situation where there is one custodial parent who spends the majority of time with the child.

In determining the acceptable amount of child support, the court will first identify an individual's gross income from all sources. Income from overtime and second jobs will probably be included in gross income in Mississippi if the work remains consistent and predictable. For example, a one-time bonus or a one time job (i.e.,security guard at a single event) may not be required to be included in gross income, while a regular annual bonus or reoccurring second job (i.e., security guard at multiple sporting events) may be included by the court in the definition of gross income.

Once gross income is calculated, the individual's gross income is adjusted for taxes, other mandatory deductions (i.e. state retirement) and support for other children. The statutory percentages are then applied to the AGI to determine the presumptively correct amount of child support. The court may then deviate above or below this amount based on certain statutory criteria and, in addition, may order payment of expenses not considered covered by the basic child support award including health insurance, uncovered medical expenses, and college expenses.

It is important to remember that typically the obligation to pay child support will continue in Mississippi until each child reaches age twenty one (21) or is otherwise emancipated. Paying too much or too little support may create issues years down the road for both parents and children. Moreover, child support payments should always be paid in a manner that documents or records the transaction (i.e., check or money order...never cash).

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Child Custody In Mississippi

February 3, 2011,

In Mississippi, there are two types of child custody: "physical custody" and "legal custody." Physical custody is the period of time in which a child resides with a particular parent, while legal custody refers to the right of a parent to make decisions relating to the health, education and welfare of the child.

There are numerous ways that child custody may be awarded in Mississippi. A court may award joint physical and legal custody, joint legal custody with sole physical custody in one parent, joint physical custody with sole legal custody in one parent or physical and legal custody to either parent. Joint legal custody means that parents share decision-making rights with regard to the child. Moreover, when joint physical custody is awarded, a child will normally spend a significant time with both parents. Where a home has more than one child, a court may also order split custody, though there is a strong preference for keeping siblings in the same home in Mississippi.

It is important to remember that the primary or "polestar" consideration in custody cases is the "best interests and welfare of the child". Chancellors in Mississippi always determine custody based on this "best interests" approach or test. In Mississippi, it is now presumed that mothers and fathers are equally entitled to custody of their children. In addition to the presumption of equality, other presumptions also directly influence custody actions in Mississippi. These include the presumption in favor of a natural parent, the presumption against custody to a violent parent, and the presumption in favor of joint custody upon both parents request.

So who will get custody in a dispute between natural parents? To resolve this question, Chancery Courts in Mississippi apply the presumptions above as well as the factors adopted by the Mississippi Supreme Court in Albright v. Albright, to determine which parent should have custody. These factors include:

[1] Age, health and sex of child;
[2] Continuing care of child prior to (and after) separation;
[3] Parenting skills of each parent;
[4] Capacity to provide child care and employment responsibilities;
[5] Physical and mental health and age of parents;
[6] Alcohol and drug use;
[7] Emotional ties of the parent and child;
[8] Moral fitness;
[9] Home, school and community record of child;
[10] Preference of a child twelve or older;
[11] Stability of the home environment and employment of parents; and,
[12] Other relevant factors that should be considered.

When determining custody, my experience is that a court will first apply the presumptions and, if not decisive on the custody issue, the court will then engage in a thorough Albright analysis to determine which parent should be awarded custody and why.

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