Monthly Archives: June 2016

MS Child Custody Factors

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MS Child Custody Factors

In Mississippi, both parents have equal rights to the child(ren) unless otherwise determined by the Court. So, when the issue of child custody arises the Court must decide what is in the best interest of the child(ren) in accordance with Miss. Code Ann. Sec. 93-5-24. To determine what is the “best interest” of a child the Albright Factors are considered. Albright is the case that set precedent in Mississippi family law when it comes to child custody. (Albright v. Albright, 437 So. 2d 1003 (Miss. 1983)). The following factors are considered the Albright Factors and are used when Child Custody is addressed:

  1. the age, health, and sex of the child;
  2. the continuity of care prior to the separation;
  3. the parenting skills;
  4. each parent’s willingness and capacity to provide primary child care;
  5. each parent’s employment and responsibilities of that employment;
  6. each parent’s age and physical and mental health;
  7. emotional ties between the parent and child;
  8. moral fitness of the parents;
  9. the child’s ties to home, school, and community;
  10. the child’s preference, if the child is of a sufficient age to express a mature preference (usually 12 in MS);
  11. each parent’s relative financial situation;
  12. difference in parents’ religious beliefs or non beliefs;
  13. difference in parents’ personal values and lifestyle;
  14. the stability of each parent’s home environment; and
  15. any other factors the court believes are relevant to the parent-child relationship.

This isn’t a magical or mathematical formula, however. Just because 6 factors favor one parent and 5 favor the other parent, this does not mean that custody will be awarded to the parent who had 6 factors in his/her favor.  Each factor may carry different weight and the outcome will depend on what is in the child(ren)’s best interest.

Some years ago, a mother was presumed to be a better care giver and the “Tender Years” doctrine was born. However, more recently, it has been held that both parents should be presumed equal under Mississippi Code Ann. Sec. 93-5-24(7) “[t]here shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody”. This statute removes any legal presumption that a mother should have custody unless she is proven unfit. Therefore, it has be held that “a child is no longer of tender years when that child can be equally cared for by persons other than the mother.” Mercier v. Mercier, 717 So. 2d 304, 307 (Miss. 1998).

If you are facing a custody suit, it is critical that you retain an attorney who will aggressively protect your rights. I zealously represent my client’s rights to custody and guide him/her through the minefield of child custody battles and explain his/her rights, obligations, and option and what will work best in his/her situation, because no two cases are the same. Should you need legal representation in child custody, support, modification, contempt or other family law matters, please contact my office at 601-483-4144 or via email at stella@stellahurttlaw.com.

The Adult Guardianship

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The Adult Guardianship

As of July 1, 2014 the Mississippi Code was amended to define and allow a new type of guardianship known as the “Adult Guardianship”. The changes now clarify the difference in a conservator and guardian; specifically a conservator  is a person appointed by a court to “administer the property of an adult, including a person appointed under Section 93-13-251, et seq.“, whereas a guardian is a person appointed by a court to “make decisions regarding the person of an adult, including a person appointed under Section 93-13-111 and Sections 93-13-121 through 93-13-135.” It is now also easier to transfer guardianships between states. Also a new section was created to address Adult Guardianships particularly; the new provisions can be found at Miss. Code Ann. § 93-14-1 et seq.

According to Miss. Code Ann. Sec. 93-13-38(1),  “[a]ll the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.” This means that the guardian will need to file an affidavit of creditors in the proper time, publish to creditors, file an inventory, and do all the other acts and things required of fiduciaries in estates.

It is also important to note that when a guardian has more than one ward, each ward’s business must be accounted for separately. (Mississippi Code Ann. § 93-13-69.)

And although guardians can ask for compensation for handling the guardianship, the request must comply with Uniform Rules of Chancery Court 6.11, which states that such a request “shall show the total amount of the estate coming into his hands, the total amount disbursed, the balance on hand, the nature and extent of the service rendered and expense incurred by him, and the total amount previously allowed to him on account thereof. Fees for fiduciaries and attorneys shall not be based on the value of any real property.”

For an Adult Guardianship to be successful, the following procedure must be completed:

  1. The potential Ward must have been a citizen of MS for a period of at least 6 months before the filing of a Petition for the Court to have jurisdiction;
  2. An attorney is required by Statute;
  3. A Petition for Guardianship of the Person will need to be drafted, signed by the petitioner and attested to (in front of a notary) and filed in the Chancery Court of the County the potential ward is a resident of; (in Lauderdale Co. the filing fee is $149)
  4. A Summons in accordance with M.R.C.P. 81 must be issued, setting a hearing date for the Ward and next friend or next of kin (who may join in the petition);
  5. If the Ward and/or Next of Kin did not join, he/she must be served with the Petition and Summons or join in the petition;
  6. At the hearing the evidence showing the need for a guardianship may be presented and any contesting evidence or views may also be presented;
  7. Once an Order Appointing a Guardianship of the Person is granted, the Guardian(s) must take an Oath and then Letters will be issued;
  8. The letters and order will be needed when performing your duties as Guardian.
  9. An affidavit of Creditors, and Notice of Creditors must be completed (Miss. Code Ann. § 93-13-38)
  10. An inventory unless waived must be performed within 3 months of his/her appointment as Guardian (Miss. Code Ann. § 93-13-33);

If you should find yourself in need of an Adult Guardianship and would like more information or my firm to guide you through the process and represent you in the proceeding please contact my office at 601-483-4144 or via email at stella@stellahurttlaw.com

The “School Guardianship”

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The “School Guardianship”

A guardianship for schooling purposes can sometimes become burdensome; but there are methods to make these guardianship less burdensome.  So why should we make something more complex than it really has to be? And I’m going to provide some information, that will hopefully assist you when trying to wade through what is sometimes referred to as a “school guardianship”.

First of all, a “school guardianship” is a guardianship of the person that is designed to  get a child into a particular school, generally via grandparents and within the tolerance of the school district involved.

Before 2013,  a guardianship of the person had to meet all of the same requirements as for an estate, including notice to creditors, probate of claims, and accountings, according to Mississippi Code Ann. Sec. 93-13-38; however, this changed as of July 1, 2013.

The changes to Miss. Code Ann. Sec. 93-13-38 include: “[t]he requirements in a guardianship of the person are modified to the extent that notice to creditors is not required, reports will be made only as often as the court requires, and the guardianship may be closed without the need for any accounting unless otherwise determined by the court.”

So, an attorney is still required, as in any estate matter; but the notice of creditors is gone and accounitngs may be waived or extended as the court deems proper.

But before you go out and decide to get a guardianship of a person, you should know that there are still responsibilities the guardians are required to comply with. A Guardian is entitled to, and are responsible for the care, custody and control of the Ward. He/She is responsible for providing food, clothing, shelter, education and all medical and dental care required by your ward. The Guardian has the right to determine where the ward lives; however, the Guardian does not have the right to change the ward’s residence, or relocate from the county in which his guardianship has been established, or from the State of Mississippi, without Court approval. (Miss. Code Ann. §93-13-61 and §93-13-63). Also, it is important to note that even when a minor has a guardian, the parents are still obligated to financially support the child, and may even be awarded visitation with the child.

Now that you know the responsibility of a Guardian, if your still interested in obtaining a Guardianship of a person, you will need to do the following:

  1. The potential Ward must have been a citizen of MS for a period of at least 6 months before the filing of a Petition for the Court to have jurisdiction;
  2. An attorney is required by Statute;
  3. A Petition for Guardianship of the Person will need to be drafted, signed by the petitioner and attested to (in front of a notary) and filed in the Chancery Court of the County the child is a resident of; (in Lauderdale Co. the filing fee is $149)
  4. A Summons in accordance with M.R.C.P. 81 must be issued, setting a hearing date;
  5. The parents of the Ward (or next of kin) must be served with the Petition and Summons or join in the petition;
  6. If the potential Ward is 12 yrs or older, he/she must be served with the Petition and Summons;
  7. At the hearing the evidence showing the need for a guardianship may be presented and any contesting evidence or views may also be presented;
  8. Once an Order Appointing a Guardianship of the Person is granted, the Guardian(s) must take an Oath and then Letters will be issued;
  9. The letters and order will be needed when enrolling the ward in school and for other purposes such as extra-circulars.

*Please note that some procedures may vary from county to county, so always contact the Court Clerks and Administrator to find out local procedures.