• Be sure he is gone. It is best if he is far enough away that he cannot get back in time if he is alerted.
• Be prepared for the possibility he may have alerted a neighbor to keep an eye on things for him.
• Move fast. Make sure all arrangements are made ahead of time and the timing is closely coordinated.  Have enough people there at once to get the job done fast (note, however, the more commotion you cause, the greater the likelihood of being caught).
• Identify what you want to take before you go so you do not have a delay in deciding.
• Take what you must have; if you leave it, kiss it good bye.
• If you have a connection with local law enforcement, let them know what you are doing. Law enforcement are fickle on this issue. I have had some prevent a move when they were alerted by the other spouse.
• Be careful not to damage things or to destroy the home. This will be used against you.  You might even want to take pictures of what you left and the condition you left the house in.
• Either parent has equal access to children until a court order is entered.  You may take your child with you, but, remember, if you leave your child somewhere to which he has access without trespass, he can go get the child back. (Mississippi law)

Mark has more good tips there as well.

I would just add that if you are taking your children with you, it is best to allow some contact between them and your spouse. The judges I’m usually before do not like it when one spouse “abducts” the children from the other.

For many people, some of their fondest memories of childhood are times they spent with their grandparents. One of my earliest memories is me walking to downtown Quitman, hand-in-hand with my grandfather, to Slay’s store. I can still remember the smell of sawdust on the floor of its old-timey butcher shop.

(I digress, but that just goes to show how powerful the memories can be)

There are two situations in which a grandparent may have a court order visitation. The first is when the parent of the child has died or has otherwise lost parental rights. The other is when there was a pre-existing relationship with the grandchild.

Photo credit: Pingu1963

The Death of a Parent

I picture a grandparent’s rights to visitation as going through their child—that is, the child’s parent. When the parent dies or loses their legal rights as parent of the child, the grandparent’s rights go away.

I like to think that’s not true in most families; hopefully the surviving parent wants the grandchild and grandparent to have a good relationship. In reality, that does not always happen. I’ve seen several cases where bad blood between the grandparent and the widowed parent causes the parent to allow no contact with the grandchild.

In such a situation, the grandparent can petition the chancery court to order reasonable visitation.

Photo Credit: Brian Hathcock

An Established Viable Relationship

But what if both parents of the child are living, and the parents just don’t want the grandparent to visit the child?

In this situation, it is possible to obtain visitation, but it is more difficult. If you stop and think about it, it should be. A parent is presumed to know what is best for their child. This presumption is recognized by the legislature by making it more difficult for a grandparent to get visitation rights when both parents are living.

To overcome the parents’ desires to prohibit visitation, the grandparent must prove that there was an established viable relationship with the child. A “viable relationship” may be proven by showing the court that:

• the grandparent(s), voluntarily and in good-faith, supported the child financially for at least six months prior to filing the petition,
• there was  frequent visitation (including occasional overnight visitation) for at least one year, or
• the grandparent(s) cared for the child for a significant period of time during the parent’s absence due to jail or military service.

Where to File?

Where the parent’s rights have been terminated, the grandparents can file their petition for visitation in the county where the order of termination was entered. If the parent has died, then the petition must be filed in the county where the child resides.

If the grandparents are attempting to overcome parental restrictions on visitation, then they must file where an order of custody has previously been entered or where the child resides (if no such order has been entered).

Restoration of Name

Women who took their husband’s last name may have the right to use their maiden name returned to them. This should be in the divorce judgment, so you or your lawyer should bring it to the judge’s attention if it is not in any judgment that the lawyer may have prepared.

If you have custody of your children, and they have your husband’s name, you may want to think twice before changing yours. The kids will already feel a loss. They may interpret the “rejection” of your husband’s name as a rejection of them.

If you forgot to get your name restored in the divorce, it will require going back to court to get permission for the name change.

Banking

Chances are that you have already gotten separate bank accounts from your now ex-spouse. Nevertheless, after the divorce, you want to make sure that your name is taken off any old joint accounts.

Carefully check your statements from your new account if you are still using the same bank. I have had one client open a separate account at the bank where she and her ex had a joint account. Because of a snafu, her new account was created with him having access to the account.

Insurance

You should check your insurance, especially auto insurance, to make sure you are not paying for coverage on your ex’s car following the divorce. There may be other insurance concerns as well.

If you are paying child support or alimony, you may be ordered to obtain a life insurance policy on yourself  with the beneficiaries being your children or ex-spouse.

A divorce judgment may order that a life insurance policy’s ownership be transferred. Following the divorce, you need to follow-up to make sure it was done.

Accountants

Your accountant can probably tell, come tax time, that you’ve gotten divorced, but you may want to consult her before then. You may now need to have less money withheld from your paycheck for taxes. That will give you more money every payday. Just be careful that you don’t have to pay too much come April 15!

Lawyers

If you have a lawyer other than the one you hired for your divorce, make sure they know that you were divorced. Wills may need to be changed. Trusts may need to be amended or revised. If you were in the middle of a personal injury case when you were divorced, your ex-spouse may be entitled to any money you recover as a plaintiff in that case.

This leads to some problems in determining where a child custody action should take place. I recently had a question from a woman who lives here in Hattiesburg, Mississippi, but the child’s father lives in Georgia, and the divorce was granted by a court in Chicago. Where should any further child custody disputes be heard?

Lawyers call these kind of questions “choice of law,” and they are some of the most-despised legal issues because they can be so complex. Fortunately, there is the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA) that settles many such questions in the area of child custody.

UCCJEA Jurisdiction

The UCCJEA, generally speaking, places jurisdiction over issues of child custody exclusively with the child’s home state. The home state is considered the state where the child lived with a parent or person acting as a parent for at least six consecutive months preceding the action. If there is no home state, then a court may exercise jurisdiction if the child has significant connections with that state. Significant connections require the child and at least one litigant to have a significant connection with the state other than mere physical presence and substantial evidence related to the action which is available in the state.

Defenses to Child Custody Jurisdiction

Just because a court may have jurisdiction over a child custody case, the court is not bound to exercise that jurisdiction. It may decline to do so because it is either inconvenient forum or because of a party’s wrongful conduct.

Inconvenient Forum

A court can decline to exercise jurisdiction if it finds that the dispute would be better heard in another state. The court is to consider (1) whether domestic violence is involved, (2) the length of time the child has lived outside the state, (3) distance between the states, (4) the financial situation of the parties, (5) agreements regarding jurisdiction, (6) location of evidence, (7) each court’s ability to decide the issue quickly, and (8) each court’s familiarity with the issues.

Should this defense not be raised before trial, it is considered waived and cannot be raised at a later date.

Wrongful Conduct

If the petitioner (the party who brings the action to enforce the custody decree) has acted improper in some way, then the court may decline jurisdiction. There is no definition of what conduct would be considered unjustifiable, and, I suppose, that is ultimately up to the court. A court may not grant a defense based on wrongful conduct if (1) all parties consent to the jurisdiction, (2) the proper court to have jurisdiction determines that it is an inconvenient forum, or (3) no other state has jurisdiction.

I’ll continue this discussion of interstate jurisdiction and enforcement in later posts

Fortunately, in Mississippi, a third-party can sue to prove paternity. The man who believes himself to be the biological father can sue in either the chancery, circuit, or county court in the county where the mother or child resides. (Note that this procedure is for intrastate cases; in interstate cases, the procedures in the Uniform Child Custody Jurisdiction & Enforcement Act would have to be followed).

While the possible father may give testimony and call witnesses establishing that he had a sexual relationship with the mother around the time of conception, the best course of action is probably to move the court for a DNA test. Such a test must be performed by a facility that is approved by the Mississippi Department of Health. While it is up to the judge to decide how to divide the costs associated with the test, it has been my experience that the judge usually requires the person requesting the test to pay for the test.

If the DNA test shows a 98% or greater chance of paternity, then there is a rebuttable presumption of paternity.

Should paternity be proven to a preponderance of the evidence, then the court may enter an order of filiation, that is, an order establishing paternity. If this is done, you should also expect the court to order the biological father to pay child support, including up to one year of back child support.

Do you know of someone who had to sue to prove they were a child’s father? What was their experience? Leave a comment and let me know.

Photo credit: Steve Heath