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Thursday, November 3, 2011

Child Custody: How Does the Court Decide?

Child Custody: How Does the Court Decide?

All child custody cases bring about tremendous emotional turmoil for the parties involved and most people feel like they have to "win." However, no one wins in these cases and the number one concern should always be with the children and what is in their best interest. The best interest of the children is always the main concern of the court and an outcome that preserves this interest will allays prevail.

Best Interest Factors:

Although the "best interest" standard can be hard to define in some situations, some factors are common in "best interest" analyses in most custody situations:

  • Wishes of the child (if old enough to capably express a reasonable preference)
  • Mental and physical health of the parents
  • Religion and/or cultural considerations
  • Need for continuation of stable home environment
  • Support and opportunity for interaction with members of extended family of either parent
  • Interaction and interrelationship with other members of household
  • Adjustment to school and community
  • Age and sex of child
  • Parental use of excessive discipline or emotional abuse
  • Evidence of parental drug, alcohol or sexual abuse.

Child custody has proven to be the most conflicted and serious aspect of any divorce or family law proceeding. When the judge considers custody issues, the resounding question is "What is the best interest of the child?"

Keep in mind that both parents have equal rights to the child, so a judge considers several factors in custody matters. Some of these include the health and sex of the child, the primary caregiver prior to the divorce, parenting skills and willingness to care for the child, the emotional ties between child and parent, and each parent's moral fitness.

Other examples of the considerations the court will consider include, the age of the child, a parent's employment that involves long absences from home, immoral conduct of a parent, and differences between the parents in financial position, religion, personal values, and lifestyles. While any of the foregoing may be a strong reason to base the custody decision, judges must look at the whole picture in determining what is in the best interest of the child.

Often times, child has a preference as to the particular parent hero she would like to reside with and a child age 12 or above may tell the judge his or her preference for custody if the court considers both parents fit. However, the Judge is not bound by the child's preference. The Court recognizes that a child may not know what is in his or her best interest and may be basing their decision on which household is more fun or less strict.

In a custody proceeding a judge awards both physical and legal custody. Physical custody is where the child actually lives. Legal custody gives a parent the decision-making authority concerning the child's health, education and welfare. The judge may grant either or both custody designations to both parents, one parent, or a third party.

If one parent receives physical and legal custody, the judge grants visitation rights to the other parent, unless it is not in the child's best interest. Typically, visitation will only be restricted or supervised in extreme cases or where the child has been subjected to abuse.

A third party receives custody only when the court finds that it is in the best interest of the child because of the parents' abandonment, immorality, mental problems, or other reasons harmful to the child. Grandparents receive no special consideration over other third parties in these cases, but they may petition the court for visitation rights in situations of divorce, termination of parental rights, or the death of one of the parents.

Once ruled, a judge is reluctant to change custodial rights because of the disruptive affect on the child. For the judge to consider a change, the non-custodial parent must prove a significant change in circumstances has had an adverse impact on the child.

If you or someone you know needs assistance, contact an experienced Mississippi family law attorney.


Divorce: What Are The Basics?

Divorce: What Are The Basic Steps?

Divorce laws will vary by state, but these are the basic steps and procedures one can expect to encounter in Mississippi:

First, you need to research local attorneys that specialize in divorce. Make sure you specifically research divorce attorneys and seek background information. Seeking counsel from an attorney that does not specialize in divorce or family law will prove to be detrimental. Once you have found a qualified Mississippi divorce attorney, you can expect you case to proceed in the following manner, keeping in mind that all cases are different and will never be exactly the same and produce the same outcome as one you have heard about from friends, family or TV.

1. You or your spouse must meet the 6 month residency requirements of the state of Mississippi, meaning you must have lived in Mississippi for at least 6 months.

2. You must have “grounds” (a legally acceptable reason) to end your marriage, in Mississippi there are 12 fault grounds . If you do not have grounds for divorce, then you can file what is called a "Joint Complaint". A Joint Complaint means you and your spouse agree that the two of you should be divorced, and is Mississippi's version of a "no fault" divorce. If the joint complaint route is taken, the court requires a 60 day "reflection period" before the divorce can be finalized.

3. Your attorney will advise you of the best way to proceed, prepare your case, and file the appropriate divorce papers with the court.

4. If your spouse disagrees with anything in the divorce papers, then they will have the opportunity to file papers telling their side,which will be considered “contesting the divorce.” If contested, you may have a series of court appearances to sort out the issues. Also, if a certain period of time passes and your spouse does not sign the papers or file any papers of their own, you may be able to proceed with the divorce as an uncontested divorce anyway. (Your lawyer will be able to advise you on how long you have to wait to see if your spouse answers before you can continue with the divorce).

5. If there is property, assets, a pension, debts, or anything else that you need divided, or if you need financial support from your spouse, then these issues may have to be dealt with during the divorce or else you may lose your chance to deal with these issues. The issues may be worked out during settlement negotiations, and incorporated into the divorce decree or in a series of court hearings during the divorce.

6. If there are any children born of the marriage, then child custody, child support and visitation will have to be determined as well.

Divorce and all of the issues that come along with it can be stressful and emotionally draining . If you or someone you know are dealing with divorce, you should seek the advice from a Mississippi attorney who practices family law, so that the burden and stress can be reduced.