Family Law 5-8

At what age (in Mississippi) is a child entitled to express his/her desire regarding which parent should get custody? Is the court bound by the child's choice?

A child who is at least 12 years of age has the statutory right to choose which parent to live with. However, while the stature gives the child the right to state a preference, the court may apply its discretion to determine if that choice serves the best interests of that particular child. When the chancellor denies a child his choice, they must make on-the-record findings as to why the best interest of the child is not served

Primary Caretaker Presumption

A controversial method of granting custody, it grants custody to the parent who spent the most time caring for the child. On one hand it offers predictability of the outcome and relieves the judge from determining the best interest, but it seems to punish the primary earner.

~ Be familiar with collection of past due support. What remedies might DHS have that a private attorney does not?

A lien to secure past due child support. Collection of arrearages may be forced through an additional amount of wage withholding.

Nexus

A parent must show actual harm before the other parent's sexual or religious behavior is brought into question.

What is an IV-D Agency?

A state agency created pursuant to federal statute that locates absent parents, establishes child support figures, reviews child support awards, enforces awards, and establishes paternity if necessary.

Per Se Approach

An assumption that the parent's actions harm the child without requiring proof of detriment. This was the approach used to remove custody from homosexual parents. It is being replaced by the nexus approach.

Be familiar with grandparents' visitation. Who may petition? What are the general rules about the grandparent's relationship with the child (by this, I mean the child of the grandparent - which would be the parent to the grandchild - confusing, I know). What if the grandparent does not have the required relationship with the child? Under what circumstances, if any, could the court STILL consider grandparent visitation?

Any grandparent whose child has 1) lost custody of the grandchild to the grandchild's other parent 2) has had his/her parental rights terminated 3) has died -Any grandparent not otherwise authorized to petition due to a change in the status of the linking parent between grandparent and grandchild may nonetheless petition the chancery court seeking visitation rights and the court may grand visitation rights to that grandparent if it finds 1) that the grandparent of the grandchild had established a *viable relationship* with the grandchild and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the grandchild, and 2) the visitation rights of the grandparent with the grandchild would be in the best interest of the grandchild

What is "equitable division" of property? What factors are used to equitably divide property?

Assets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties' separate estates prior to the marriage or outside the marriage. *Factors:* 1) which party made substantial contribution to the accumulation of the property 2) The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise 3) the Market value and the emotional value of the assets subject to distribution 4) the value of assets not ordinarily, absent equitable factors to the contrary, subject so such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse. 5) Tax or other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution 6) the extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties 7) the needs of the parties for financial security with due regard to the combination of assets, income and earning capacity and 8) any other fact which in equity should be considered.

What is the polestar consideration in ANY determination of child custody?

Best Interest of the Child

Sole Custody v. Joint Custody

Either custody type may be sole or joint.

How is "income" defined for the purpose of calculating a dollar figure for support?

Gross income is determined from all potential sources that may reasonably be expected to be available to the absent parent including but not limited to, the following: 1) wages and salary income 2) income from self employment 3) income from commissions 4) income from investments, including dividends, interest income and income on any trust account or property 5) absent parent's portion of any joint income of both parents 6) workers' compensation, disability, unemployment, annuity and retirement benefits, including individual retirement account (IRA) 7) any other payments made by any person, private entity, federal or state government or any unit of local government 8) alimony 9) any income earned from an interest in or from inherited property 10) any other form of earned income

What are the three basic types of alimony? Be able to describe or define each of them

Periodic a) Duration- Until death or remarriage of recipient spouse or death of paying spouse b) Modification- Modifiable upon showing material change in circumstances of either party c) Vesting- Sums vest as they accrue Rehabilitative a)Duration-Paid for a definite and fixed period of time b)Modification-Modifiable during period in which it accrues upon showing material change in circumstances of either party c)Vesting-Sums vest as they accrue Lump Sum a)Duration-Payable in single installment or in multiple fixed sums over definite period. In the event of ambiguity in the decree, presumption is generally for periodic and not lump sum alimony b)Modification-Not modifiable, absent showing of fraud c)Vesting-Sums vests when judgment awarding it is final, retroactive to date judgment entered

~ Does child support require reasonable medical support? ~ What is an order for withholding? Is it mandatory?

The child support guidelines require that reasonable medical support be included: "All orders involving support of minor children, as a matter of law, shall include reasonable medical support. The court entering such order *must* enter a separate order for monthly withholding against the obligor's income.

Best Interest

The court looks at each parent and weighs the interest of the child before determining which parent would be the best custodial parent. Gender is not a factor.

~ At what age does support terminate in Mississippi (i.e, what is the age of majority in Mississippi)? Other than by attaining the "magic age," how may a child be deemed emancipated?

The duty to support a child terminates upon the emancipation of the child. The court may determine that emancipation has occurred and the support obligation terminated when the child: a) 21 years old b)marries c)discontinues full-time enrollment in school and obtains full-time employment prior to attaining the age of 21, or d) voluntarily moves from the home of the custodial parent or guardian and establishes independent living arrangements and obtains full-time employment before turning 21

Is there a legal preference for a mother to get custody of a young child? I.e., do we adhere to the "tender years doctrine" in Mississippi?

There is now a statutory prohibition against any presumption that it is in the best interest of a child that the mother be awarded either legal or physical custody.

Know the standard that the court must use to award a change in visitation arrangements

Unlike a modification of custody, there is no need for the petitioner to show a material change in circumstances. All that must be shown to modify a visitation schedule is "that there is a *prior decree* providing for *reasonable visitation* rights which *isn't working* and that it is in the *best interests of the children [to modify* the former decree.]"

Does the court have authority to take title from one spouse and give it to another (i.e., title to land or to a car in one spouse's name....can it be given to the other spouse or does it remain with the spouse who has his/her name on the title)?

When making its equitable division of marital property, the court may divest title from one spouse and vest it in the other if equity so requires.

Be familiar with the rules (or lack thereof) regarding restrictions on visitation. Is the presence of the non-custodial parent's paramour sufficient danger to substantiate restriction? What if the paramour is a same-sex partner?

When the non-custodial parent has rights to unsupervised visitation, the custodial parent has no right to interfere. So long as the non-custodial parent does not demonstrate *irresponsible conduct, fail to consider the best interest of the child* or engage in an activity which would *actually endanger or result in injury to the child* There must be evidence presented to the court that a particular restriction on visitation is necessary to avoid harm to the child before a chancellor may impose restrictions on the non-custodial parent's time with his/her children. Otherwise, the restriction imposed is manifest error and an abuse of discretion subjecting the decision to reversal on appeal. *Even when the new paramour is a same-sex partner, the rule appears to be the same. It has been held an insufficient "danger" to substantiate restrictions on visitation*

Does a parent who has lost both physical and legal custody in the divorce still have a right to visitation?

Yes, this parent is still the legal parent (parental rights have not been terminated) and is usually granted visitation rights but has no decision-making power in the child's life.

Visitation

a divorced person's right to spend time with their children in the custody of a former spouse.

Alimony

a husband's or wife's court-ordered provision for a spouse after separation or divorce.

paternal preference

a legal principle which says that custody of a minor child should ordinarily be granted to a fit parent rather than another person.

Noncustodial Parent

a parent who does not have physical custody of his or her minor child by as the result of a child custody determination

VISITATION ~ It's ____________ order- it's always modifiable Know that the original court has continuing exclusive jurisdiction unless/until officially transferred to a new court

not a permanent

Points to remember about Child Support ~ It's not a "permanent" order- it's always modifiable Know that the original court has continuing exclusive jurisdiction unless/until ______________

officially transferred to a new court

Spousal Support

payments from one spouse to another after a divorce for the purpose of maintaining the former spouse's standard of living during the marriage. (The term "alimony" means the same thing as "spousal support.")

Child Custody is not a ___________ order, meaning that it is modifiable.

permanent

Primary Caretaker

refers to the parent who has the greatest responsibility for the daily care and rearing of a child.

Parenting Plan

required in separation, custody, annulment, and divorce cases under the laws of some states, which vary by state. It is a detailed schedule of the minimum parenting time for each parent. The parenting time can be split equally or otherwise by agreement of the parents.

Custody

the protective care or guardianship of someone or something

What is the approximation rule?

In a joint physical custody agreement, the terms approximate the same amount of interaction with each parent.

What are the pros and cons of open visitation schedules v. set visitation schedules?

In open visitation it is possible to come close to approximating the pre-divorce parent-child interaction. But the primary custodian holds the power to authorize all visitation which is a power imbalance. Schedule conflicts arise in set visitation schedules and holidays become a problem. But it is court imposed so one party does not have more power

What is the difference between custody and a T.P.R.?

Loss of custody does not affect the legal relationship between you and your child, only the living arrangements. If your parental rights are terminated, you are completely cut off from your child, both physically and legally.

Can the custodial parent or the court intervene to restrict activities of a child during the non-custodial parent's visitation?

Neither the court, nor the custodial parent, may intervene to restrict activities during the non-custodial parent's visitation with the child, unless the court finds that the non-custodial parent has acted without concern for the child's well-being or best interest, has demonstrated irresponsible conduct, or that the activity which is questioned by the custodial parent presents a danger to the child's safety or well-being.

Can the paying spouse's income include income from his/her new spouse for purposes of determining child support?

No! Any monetary benefited derived from a second household, such as income of the absent parent's current spouse is excluded.

Can the court restrict a custodial parent's ability to relocate? If a custodial parent relocates and the non-custodial parent petitions for modification, how would the court be able to take the relocation into account?

No, and no. Any agreement to restrict the relocation of the custodial parent, or the child, is against public policy and is void ab initio. A change of the child's residence is not per se a change of circumstances which adversely affects the child warranting modification custody.

Can the court impose joint physical custody?

No. A joint custody agreement must be worked out by the parties.

If a spouse has separate property when (s)he comes into the marriage, does it always remain his/her separate property or can it somehow change character and become marital property? What are the rules or standards applied to the answer you just found?

Non-marital property may lose its non-marital character if commingled with marital property or used for a familial purpose. Such converted assets are then subject to equitable distribution by the court.

Know that the "totality of the circumstances" can also be taken into account outside of the two prong test (Riley v. Doerner)

Not every change in circumstances warrants a change in custody. A "change in circumstances" sufficient to warrant a modification has been defined as "one in the overall living conditions in which the child is found, likely to remain unchanged in the foreseeable future.. the 'totality of the circumstances' must be considered"

Is a change of circumstances in the non-custodial parent enough in and of itself to warrant a modification of custody?

Not every change in circumstances warrants a change in custody. A "change in circumstances" sufficient to warrant a modification has been defined as "one in the overall living conditions in which the child is found, likely to remain unchanged in the foreseeable future... The 'totality of the circumstances' must be considered."

Do nonparents have a right to petition for custody if it is in the best interest of the child?

Only if the parent is "unfit"

When can a child custody agreement be modified?

Only when there has been a change in circumstances: a parent moves or changes jobs/work schedules, or the child's age (the child becomes a teen).

~ Does child support legally belong to the custodial parent or does it belong to the child?

Paid in trust to custodial parent for use in best interest of child; technically owed to the child, but is trusted with the parent.

In Loco Parentis

Parental rights and an obligation to pay child support may be granted to a step-parent if they have raised the child.

What general limitations, if any, are observed regarding testimony of a child in open court? (See Jethrow)

Parties do have the right to call their children as witnesses in such proceedings, but the chancellor has great discretion as to whether the testimony will be allowed. 1) an evaluation of the competency of the child to testify, as well as the competency of the evidence which the child might present. 2) a determination of whether the best interests of the child would be served by permitting the child to testify or be sheltered from testifying and being subjected to a vigorous cross examination.

What is a guardian ad litem and how might one be useful in a determination of child custody?

(GAL) is a person the court appoints to investigate what solutions would be in the "best interests of a child.

What factors are weighed when determining custody in the best interest of the child?

-maintaining a stable physical environment -emotional ties -capacity -health -time availability -resources -past violence -Gaurdian ad Litem's recomendation -parent lifestyles (ONLY a factor if you can show that it affected the child)

What is a presumptive percentage of AGI for the support of 1 child in Mississippi? 2 children?

1 = 14% Adjusted Gross Income 2 = 20% 3 = 22% 4 = 24% 5+ = 26%

Factors involved in an initial award (Albright factors)

1) Age of the child 2) health and sex of the child 3) which parent had continuing care of the child prior to the separation 4) which parent has the best parenting skills 5) which parent has willingness and capacity to provide primary child care 6) employment responsibilities of the parents 7) physical and mental health and age of the parents 8) emotional ties of parent and child 9) moral fitness of parents 10) the home, school and community record of the child 11) preference of the child at an age sufficient by law to express such a preference 12) stability of the home environment and employment of each parent 13) other factors relevant to the parent-child relationship

What circumstances allow the court to deviate from the presumptively approved guidelines? There are two answers to this question - the first is an upper and a lower dollar figure, and the second involves factors defied by statute. Be familiar with both answers.

1) In cases in which the adjusted gross income as defined in this section is *more than $50,000 or less than $5,000*, the court must make a written finding in the record as to whether or not the application of the guidelines established in this section is *reasonable* 2) a) extraordinary medical, psychological, educational or dental expenses b) independent income of the child c) payment of both child support and spousal support to the obligee d) seasonal variations in one or both parents' incomes or expenses e) age of the child, taking into account the greater needs of older children f) special needs that have traditionally been met within the family budget g) particular shared parental arrangement, such as where the noncusodial parent spends a great deal of time with the children thereby reducing the financial ependitures incurred by the costodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent's homemaking services h) total available assets of the obligee, obligor, and the child i) any other adjustment which is need to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt

Know the standard for modification (two prong test in Ash v. Ash)

1) The moving party has to prove by a *preponderance* of the evidence that, after the entry of the judgment sought to be modified, there* had been a material change in circumstances* which *adversely affected the welfare* of the child. 2) if such an adverse change had been shown, the moving party had to also *show by like evidence* that the *best interest of the child required the change of custody. *

Know the factors required for a modification of child support (upward modification)

1) increased needs of children due to advanced age and maturity; 2) increase in expenses 3) inflation 4) relative financial condition and earning capacity of the parties 5) health and special medical needs of the child, both physical and psychological 6) health and special medical needs of the parents, both physical and psychological 7) necessary living expenses of the father 8) estimated amount of income taxes each party must pay 9) free use of residence, furnishings, and automobile 10) other facts and circumstances bearing on the support as shown by the evidence

What is the process by which a court decides division of property? Look to Hemsley and Ferguson

1) the character of the parties' assets, i.e., marital or nonmarital, must be determined pursuant to Hemsley. 2) The marital property is then equitably divided, employing the Ferguson factors as guidelines, in light of each party's nonmarital property. If there are sufficient marital assets which, when equitably divided and considered with each spouse's nonmarital assets, will adequately provide for both parties, no more need be done. If the situation is such that a equitable division of marital property, considered with each party's nonmarital assets, leaves a deficit for one party, then alimony based on the value of nonmarital assets should be considered. This process does not require divestiture of inherited or gift-acquired nonmarital property.

Tender Years Presumption

It was presumed to be better for the younger children to go with the mother. This standard was later replaced by gender-nuetral best interest of the child.

Physical Custody v. Legal Custody

The parent who lives with the child has physical custody. Legal custody is the power to determine where the child goes to school, has medical procedures, or practices religion.

~ Is a paying parent required to send a child to college....before they attain the "magic age"? After?

The parental duty to send a child to college is not absolute, however, but is dependent upon the proof and the circumstances of each case. The duty of a parent to support a child ends when that child reaches thea ge of 21 years or becomes otherwise emancipated, unless a prior contractual agreement between the parents states otherwise.

Arrearage

an amount on a loan, cumulative preferred stock or any credit instrument that is overdue. Also referred to as "arrears".

The original court has ________,________ jurisdiction unless/until officially transferred to a new court

continuing, exclusive

Child Support

court-ordered payments, typically made by a noncustodial divorced parent, to support one's minor child or children.