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:

http://legal-forms.laws.com/mississippi/form-mississippi-acknowledgement-of–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.

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Dividing Finances Can Be Complicated

http://www.dreamstime.com/-image2184272If 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.

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POSTED IN: Divorce

When Travel Baseball and Parental Visitation Collide.

http://www.dreamstime.com/stock-image-playground-road-sign-image19984661In 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.

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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.

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DDD – Dating During Divorce

http://www.dreamstime.com/stock-images-couple-meet-date-hand-drawn-drinking-refreshments-illustration-valentine-card-image32660344If 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.

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POSTED IN: Custody,Divorce,Domestic Violence

Domestic Violence 102: More Than Just a Fist

http://www.dreamstime.com/-image23709534What 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 HELPGUIDE.org:   ttp://www.helpguide.org/mental/domestic_violence_abuse_types_signs_causes_effects.htm. 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, http://www.mcadv.org/, can offer you guidance.

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I Lost My Trial— Now What?

http://www.dreamstime.com/royalty-free-stock-photos-attorney-client-image5123648It 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.

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Non-fault/Uncontested Divorce

http://www.dreamstime.com/stock-photo-divorce-image21785640In Mississippi, a husband and wife can get a divorce on the grounds of irreconcilable differences, which allows them to obtain a divorce without establishing which spouse caused the divorce.  In order to file an irreconcilable differences divorce, both parties must first agree to the divorce.  Generally, there are two types of irreconcilable differences divorces – those without any contested issues and those with contested issues.  When people refer to an “uncontested divorce,” they usually mean an agreed-upon divorce where the spouses also agree on all issues.  Where all issues are settled, the Petition for Divorce will be filed with the Court; and after 60 days, the Court can grant the divorce.

This non-fault divorce is still possible even if there are issues that the spouses can’t agree on.  Typical issues that are contested include division of marital property, alimony, child custody and child support.  In this instance where there are issues not agreed upon, the unresolved issues or those “contested” are submitted to the Court for decision.  For example, if the spouses can’t decide on who gets which vehicle, this issue is sent to the Court and the Court will rule which vehicle goes to which spouse.  This decision is binding, so it is best to try to resolve all matters before letting the Court decide for you.

“Uncontested divorces” do not include divorces that are based on fault – where one spouse alleges the other spouse is at fault and the reason for the divorce.  With fault divorces, both spouses cannot agree to obtain a divorce. For example, both spouses cannot agree to divorce based on drug or alcohol use.  If both spouses agree to end the marriage, then they must file under the non-fault, irreconcilable differences ground.

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Prenuptial Agreements – What is Fairness?

Prenuptial Agreements, sometimes called antenuptial agreements, are more common in today’s society.  While arguably unromantic, prenuptial agreements can help prospective spouses enter into a marriage with common financial expectations and reduce the stress and conflict financial issues often cause.

Mississippi law provides that a prenuptial agreement is just as enforceable as any other contract.  Mabus v. Mabus, 890 So. 2d 806, 821 (Miss. 2003).  Mississippi requires fairness “in the execution” and “full disclosure.”

Fairness in the execution means that both parties were able to meaningfully participate in the negotiation and signing of the agreement without coercion or duress.  Parties should strive to address the prenuptial agreement well in advance of the wedding so that both parties have adequate time to contemplate the agreement and give full consent.  While it is not required for enforcement, it is a good idea for each prospective spouse to have independent counsel.

Full disclosure means that both parties completely inform the other of their current and anticipated financial condition prior to the execution of the agreement.  Information such as bank statements, investment account statements, pension documents, future inheritances should be provided.  To the extent that future employment and financial occurrences can be predicted, those events and the financial impact of them must be disclosed.

The guiding principles in negotiating and executing a prenuptial agreement should be openness and honesty.  If all of the relevant information is provided to your prospective spouse, and he or she has adequate time and opportunity to participate in the process, you should have an agreement that is enforceable in the unfortunate event of divorce.

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Retirement – The Great Alimony Debate

Many states are reconsidering the length of time alimony may be awarded, as well as the implications to retirement for both spouses. Read information regarding the movement in Florida and New Jersey below:

http://wusfnews.wusf.usf.edu/post/despite-gov-scotts-veto-alimony-reform-debate-contiues-florida

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POSTED IN: Divorce