How will a parent’s health affect the Court’s decision about child custody?

The Court must base its decision upon the best interest and welfare of the child, and will look at the totality of the circumstances, including either parent’s health, for its decisions.  However, in February, 2015, the Mississippi Court of Appeals made clear that it will follow the well-established rule that, even regarding parental health, a person seeking to change or modify a final custody order must demonstrate 1) that a substantial change in circumstances occurred after the decree was entered, 2) that the change in circumstances  adversely affects the child, and 3) that the child’s best interests mandate the change in custody.

The parties in Robinson v. Robinson, 2013-CA-01907-COA, agreed at the time of their 2004 divorce that the mother would have full custody of their child, which agreement was then made a part of the Court’s order.  At the time, the mother was in poor health with Hodgkin’s lymphoma and relied upon her parents for assistance with child care.  In 2009, the father tried to modify custody, citing the mother’s health status and alleging that, as a result, she failed to exercise her parental rights.  The Court did not modify custody, because the mother’s health condition existed at the time of divorce when the final custody order was  entered.  The Court also found that the mother did in fact exercise her custodial rights.

The father tried again in 2012 to modify custody, this time arguing that not only was the mother in poor health, but that he was now was remarried and had a good home for the child.  The father claimed that much of the child’s care was provided by her grandparents due to the mother’s health issues, just as if they had custody of the child, when he was capable of caring for her.

In upholding the decision of the Chancery Court to deny once again the father’s request to modify the final custody order entered at the time of the divorce, the Court of Appeals observed that the mother’s health was poor at the time of the divorce and custody order; despite additional health problems that had occurred since the divorce, her condition had improved.  It examined the mother’s relationship with the child, and found that the mother had not surrendered all parental control to the grandparents.  The Court found that the father knew, at the time of the divorce and their agreed custody arrangements, that the mother was in poor health and had assistance from the child’s grandparents in caring for her.

The Robinson opinion made it clear that while even serious medical conditions will be weighed by the court in its custody determinations, it will use the same reasoning as it would for any factor affecting the family: it must always consider the best interest and welfare of the child and, when asked to change or modify the existing custody order, will not do so unless there was a substantial change in circumstances after the order was entered that adversely affects the child so greatly that child’s best interests mandate the change.

POSTED IN: Custody,Post-judgment matters

Mississippi Supreme Court Postpones Deciding Same-Sex Marriage Issue

Lauren and Dana are a same-sex couple who were legally married in California. They separated several years later while living in Mississippi. Lauren filed for divorce.  Dana initially contested the divorce citing Mississippi Code Annotated §93-1-1, 93-1-3, and Mississippi Constitution Article XIV Section 263A taking the position that the trial court had no jurisdiction to enter a divorce because Mississippi law does not recognize same-sex marriage.  Laura and Dana eventually came to an agreement regarding the divorce, Dana withdrew her opposition to the divorce, and they presented an agreed divorce to the Chancery Court of Desoto County for consideration.  The State of Mississippi intervened and asserted the same arguments Dana initially asserted against the divorce.

The Chancery Court denied to grant the divorce finding that Mississippi statutes and Constitution prevented the Court from recognizing the California marriage, an essential part of granting the requested divorce.  Laura appealed in CZEKALA-CHATHAM v. STATE EX REL. HOOD, NO. 2014-CA-00008-SCT.

The Mississippi Supreme Court postponed making a decision on the appeal because cases currently pending before the United States Supreme Court may assist the  Court in deciding the issue in this case. Both parties agreed that the appeal should be stayed until an opinion issues from the United States Supreme Court.  Justice Chandler dissented finding that Mississippi law was clear and holding that the Court should go ahead and rule on the Constitutionality of the law prohibiting same-sex marriage.

In summary, the nation, including Mississippi, awaits the United States Supreme Court’s consideration and determination of the issue.

POSTED IN: Divorce

Federal Judge Rules Against Mississippi Gay Marriage Ban

The United States District Court for the Southern District of Mississippi has taken the first step in striking down Mississippi’s prohibition of same-sex marriage.  U.S. District Judge Carlton Reeves granted a preliminary injunction blocking Mississippi’s ban against same-sex marriage in a case brought by the Campaign for Southern Equality and two lesbian couples. But the Judge also postponed the injunction from going into effect for 14 days; therefore, same-sex couples cannot yet obtain marriage licenses in Mississippi.

The 14-day “stay” gives the State of Mississippi time to appeal Judge Reeves’ decision.  Mississippi’s Attorney General says he is prepared to appeal. The appeals court is set to hear oral arguments the week of Jan. 5 on two other pending gay marriage cases – from Louisiana and Texas.

In his 72-page order, Reeves said “Mississippi continues to change in ways its people could not anticipate even 10 years ago. Allowing same-sex couples to marry, however, presents no harm to anyone. At the very least, it has the potential to support families and provide stability for children.”


Mississippi Unmarried Father’s Rights – Establishing Paternity Is the First Step

Research shows that children with involved fathers, even when the father does not live in the same home, exhibit better socio-emotional and academic functioning. These children have fewer behavioral problems and increased scores in reading achievement. Under Mississippi law, an unmarried father must establish paternity to exercise his rights as a father, including the right to maintain a relationship with the child.

Paternity can be voluntarily acknowledged at birth. The mother and father can sign a form acknowledging paternity, and through this voluntary acknowledgment the father’s rights are established. After birth, the parties can still voluntarily acknowledge paternity by filing a form with the Mississippi Department of Vital Statistics. The form must be signed by the father and the mother and be notarized. The form can be found here:–paternity.pdf

After submission of the acknowledgment of paternity form, the mother or the father can request that the birth certificate be amended to identify the father.

If paternity is not established at birth or afterwards by acknowledgment, then the mother, father or the child can institute a paternity action under Mississippi’s Uniform Law of Paternity, Miss. Code Ann. § 93-9-1, et seq. DNA testing has become the most important evidence in a paternity action, and Mississippi presumes paternity when the DNA test show 98% or more probability of paternity. This presumption can be overcome by other evidence, but these cases are rare.

Unmarried mothers and fathers expecting a child should know the law and be prepared to acknowledge paternity at birth where there is no question about paternity. Subsequent acknowledgement should be made after birth, again, if there is no question of paternity. Unmarried fathers who are unable to establish paternity through acknowledgement, should file a paternity action as the first step on the journey of enforcing their rights as a father in Mississippi.


Dividing Finances Can Be Complicated you are contemplating a divorce, one unpleasant but necessary consideration should be how to manage your finances as you separate from one combined joint income stream to two separate incomes.  It is not unheard of for couples to remain married because they cannot afford to live separately.  For many individuals, one income is simply not enough to sustain debts and obligations that were taken on when there were two incomes at play.  While bankruptcy is not the answer for everyone, for some, it is the only answer.  However, all debts are not dischargeable (meaning forgiven) including in most instances domestic support obligations, including child support and alimony.  Marital property to be divided under marital dissolution agreements and/or orders can be a slippery  slope to climb.  Moreover, if you do file for bankruptcy, your personal assets, unless they are exempt, become property of your bankruptcy estate, which can complicate matters if you were ordered to provide  your spouse or ex-spouse a portion of some property that becomes property of the bankruptcy estate, or if you have already divided property and the question arises as to whether any transfer of property should be set aside.  Full financial disclosure of your income and all assets and liabilities are a requirement of the courts anyway, and they will help you and your attorney make an informed choice on the best option for you when faced with financial questions.

POSTED IN: Divorce

When Travel Baseball and Parental Visitation Collide. Jaggers v. MacGruder, 2012-CA-00097-COA (Miss.Ct.App. Jan. 7, 2014), the Mississippi Court of Appeals considered the father’s claim that his sons’ travel baseball schedule was usurping his visitation time.

Travel baseball has increased in popularity recently.  Unlike local “rec” leagues, boys must try out for travel baseball teams which are similar to all-star teams.  Travel baseball teams generally practice more often than rec teams and play in out-of-town tournaments.  Some teams play in tournaments every weekend during the spring-summer season, some teams play less.  Regardless, travel baseball is an enormous time commitment for the children and the parents.

The two boys at issue tried out for and made travel teams for their age groups.  The teams practiced regularly and played in six weekend tournaments during March, April and June.  The father alleged that this extracurricular activity usurped his visitation and prevented him from fostering a loving relationship with his sons.  The mother argued that the boys loved playing on the teams and it was in their best interests to continue playing.  Counselors testified that the boys were emotionally invested in sports and preventing them from playing could have negative impacts on the boys.

The Court of Appeals held that the boys could continuing playing in the travel baseball leagues and upheld the trial court’s ruling that the father must ensure that the boys participated during periods of visitation.  The Court upheld that trial court’s ruling that the father would be able make up visitation missed because of scheduling conflicts.

The Court of Appeals and the Trial Court properly put the interests and choices of the boys first and the convenience of the father second.  Reading between the lines, the holding stands for the proposition that the parent with visitation rights does not have the sole authority to determine how that visitation will be spent, and the choices of the children on extracurricular activities will be respected.

As children get older and become more involved in sports, clubs, scouting, music, etc …. it is inevitable that these activities will affect visitation periods.  If you are getting a divorce and working out a custody and visitation agreement, you should consider this inevitable conflict and address this situation in the agreement, so the Judge doesn’t have to get involved when travel baseball and visitation collide.

POSTED IN: Divorce

Grandparent Visitation and the Law

Mississippi’s statutory laws specific to grandparent visitation are found in Miss. Code Ann. §§93-16-1 et seq.  Although grandparents may find avenues elsewhere in the statutes to support a claim for visitation, the grandparent visitation statutes can be an excellent place to start, especially when there are no urgent circumstances.

Additionally, as with many family court matters, the judge weighs a number of factors to determine whether to award grandparent visitation; and if so, how much visitation to allow.  Grandparent visitation factors are set forth in Martin v. Coop, 693 So. 2d 912, 916 (Miss. 1997):

  • The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
  • The suitability of the grandparents’ home with respect to the amount of supervision received by the child.
  • The age of the child.
  •  The age, and physical and mental health of the grandparents.
  •  The emotional ties between the grandparents and the grandchild.
  • The moral fitness of the grandparents.
  •  The distance of the grandparents’ home from the child’s home.
  • Any undermining of the parent’s general discipline of the child.
  • Employment of the grandparents and the responsibilities associated with that employment.
  • The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

Id.  When the judge evaluates these Martin factors, no one factor “should receive any more weight” than any other.  Id.  Also, the factors are not all-inclusive, so if there are other relevant issues that do not fit within these 10 factors, the judge has the option of including those additional concerns in the decision-making process.  After all, “the best interest of the child must be the polestar consideration.”  Id.  So, if you want to pursue court-ordered visitation with your grandchild, be prepared to explain to the judge all the reasons that your requested visitation will benefit the child.  Also, be prepared to accept the fact that courts generally do not award grandparent visitation to the same extent that visitation would be allowed for a natural parent.


DDD – Dating During Divorce I am not living with my spouse and the divorce has been filed, can I date?  Absolutely not.  Mississippi does not recognize any form of legal separation.  You may not be living with your spouse anymore and you may not consider yourself married anymore, but until the Judge signs the order granting you a divorce you are still married.  Do not date while the divorce is pending.  Even if your spouse is dating, that does not give you the freedom to do so as well.  Remember, adultery is a ground for divorce.  Even if you think that you are being secretive, it is amazing what information can be discovered, and then used against you.  Once your divorce is final, you will be restored to all rights vested in single persons and you can begin dating again at that time.

POSTED IN: Custody,Divorce,Domestic Violence

Domestic Violence 102: More Than Just a Fist do you think of when you hear the words, domestic abuse and domestic violence?  The terms are frequently in the news; they’re often a part of the plot in movies, television shows or books.  When a spouse hits a spouse in anger, domestic violence is clear.  But what about events that don’t include a husband hitting his wife?

Domestic abuse and domestic violence crosses all socioeconomic lines

All ages, all income brackets, all races and all genders may be victims or perpetrators; it may occur in any sort of relationship – married or not, gay or straight, adolescent couples dating or elderly married couples.  Do not assume that domestic violence isn’t involved because of the people involved.

Are you wondering if your relationship is abusive or violent?

If you have to ask, it’s a good chance that it is.  Safe, healthy relationships would not generally raise this concern.  A good start in answering this question is the list provided on the excellent Domestic Violence and Abuse page of the non-profit   ttp:// The following lists and more are provided on their site.  The more “yes” answers you have, the more likely your relationship is abusive:

Signs That You’re in an Abusive Relationship

Your Inner Thoughts and Feelings - Your Partner’s Belittling Behavior

Do you

  • feel afraid of your partner much of the time?
  • avoid certain topics out of fear of angering your partner?
  • feel that you can’t do anything right for your partner?
  • believe that you deserve to be hurt or mistreated?
  • feel emotionally numb or helpless?

Does your partner

  • humiliate or yell at you?
  • criticize you and put you down?
  • treat you so badly that you’re embarrassed for your friends or family to see?
  • ignore or put down your opinions or accomplishments?
  • blame you for their own abusive behavior?
  • see you as property or a sex object, rather than as a person?
  • Your Partner’s Violent Behavior or Threats  Your Partner’s Controlling Behavior

Does your partner

  • have a bad and unpredictable temper? \act excessively jealous and possessive?
  • hurt you, or threaten to hurt or kill you?
  • control where you go or what you do?
  • threaten to take your children away or harm them?
  • keep you from seeing your friends or family?
  • threaten to commit suicide if you leave?
  • limit your access to money, the phone, or the car?
  • force you to have sex?
  • destroy your belongings?
  • constantly check up on you?

If you see yourself and your relationship in these questions, seek assistance now!  Organizations like the Mississippi Coalition Against Domestic Violence,, can offer you guidance.


I Lost My Trial— Now What? goes without saying in most court proceedings that when the smoke clears after a trial or hearing, there will be a winner and a loser.  If you are disappointed in the trial judge’s decision, is there anything you can do about it?

If you act quickly, there are two alternatives you may want to try.  You can ask the trial judge to reconsider his own decision.  Also, you can take your arguments to a higher court, also called an appellate court, in what is known as an appeal.  An appeal usually involves having your attorney file a brief with an appellate court; a brief is a written document that explains to the court the relevant facts and laws applicable to your case.  You will not get a chance to actually testify before the appellate court, because appeals are often handled entirely through the evaluation of each party’s brief.  However, the appellate court may ask each party’s attorney to make an oral presentation of arguments to assist in answering questions about the appeal.

In deciding whether or not to appeal, be advised that in family law matters, the trial judge’s decision is typically regarded with great deference by the appellate court; this can make it difficult to have a trial judge’s ruling overturned.  Also, depending on your issue, the fees involved in an appeal can be expensive.  If you like, you can select a new attorney to handle your appeal who was not involved in your hearing or trial.

When the appellate court decides on the appeal, there are a few things that can happen.  The appellate court can affirm the trial judge’s decision or totally reverse it.  Sometimes the trial judge’s decision is only partially reversed or modified.  Sometimes, the appellate court may order a new trial altogether.

So, if you go to a trial or hearing and are unsatisfied with the result, you may benefit from speaking with an attorney.  You must act quickly, as there is only a limited time after a trial judge’s decision during which you can ask for reconsideration and/or file an appeal.