Every election year, you hear arguments on whether judges should be appointed, as they are in several states and in the federal system, or, as in Mississippi, judges should be elected.

Proponents of appointed judges think they are more impartial — that they are not beholden to any special groups. I don’t follow this argument. I think that an appointed judge would, at the very least, owe a “debt” to the person or people who appointed him or her.

Those who favor elected judges think that it is only right to have a judge elected by the very people who would come before him. This leads, opponents argue, to the judge favoring those who made campaign contributions. In my experience, the argument that a judge would favor those who made large campaign contributions is hogwash.

Another argument against electing judges is that you would have higher-qualified judges if they were appointed. I admit, as would all lawyers, that I have seen some judges that, on at least one occasion or another, I wondered if they were qualified for the job. These have mostly been very low level courts where the requirements to be a judge are not very high.

What do I think the right choice is? I would compromise. I think an ideal system would have trial judges elected. I think, at that level, the judges need to remember that our government is ultimately one made by the people. At the appellate level, I would favor a system that I understand some states have: When a judicial vacancy arises, a judge is appointed. Every so often, that judge has to stand for what is, in effect, a vote of no confidence. Should enough people think he or she isn’t doing a good job, the judge can be voted out of office, and then a new judge would be appointed.

What is your take on elected judges versus appointed judges?

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When the chancery court has to decide child custody issues, the Mississippi Supreme Court has stated that the “polestar consideration” is to be the best interest of the child. To determine the best interest of the child, the court uses what are known as the Albright factors:

• The age of the child;
• Sex of the child;
• Health of the child;
• Which parent had more continuity of care with the child prior to separation;
• Which parent has the best parenting skills;
• The parent that has the willingness and capacity to provide primary child care;
• Employment responsibilities of each parent;
• Physical and mental health of the parents;
• The emotional connection between parent and child;
• Moral fitness of each parent;
• The home, school, and community record of the child;
• The preference of a child who is 12 years old or older;
• The stability of the home environment and employment of each parent; and
• Any other factor that equity requires.

None of these factors necessarily weighs more heavily than another, nor does the judge merely count the factors that weigh in favor of one parent versus the factors that weigh in favor of the other. As the Mississippi Supreme Court has noted, child custody is not an exact science.

The judge must, on the record, cite each of these factors. If he or she fails to do so, it amounts to reversible error.

Before the Albright case, Mississippi recognized the tender years doctrine, which held that it was better for a child of “tender years” to be with the mother than with the father. As you can see above, the court has not totally done away with the tender years doctrine. It is essentially now part of the Albright factors.

If you are in the Hattiesburg-Laurel area, and need help with a child custody issue, please email Hattiesburg attorney Timothy Evans or call him at (601) 583-1500.

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Two days after graduating from law school, my (then) wife told me that she wanted a divorce. Being someone who not only had just graduated law school, but who, in his last year of law school, had taken Domestic Relations, I felt I was smart enough to handle this myself. And you know what, I was smart enough. The problem was, I was emotionally involved in the case.

As I have posted before, when you’re going through a divorce, you need the advice of someone who’s not emotionally connected with your case. I made a lot of stupid mistakes because I was hoping for a reconciliation. I gave in to demands I shouldn’t have.

For your average person, there’s another potential “trap.” The legal system can be complex, and if you make a mistake it can cost you literally and figuratively. For example, in Mississippi, the venue (where you file the case) of a divorce is also jurisdictional. If you file the divorce in the wrong county, the court may dismiss the case, and you would have to file again in the correct county. (And no, the court shouldn’t tell you where to file because that’s giving legal advice). That means you have to pay another filing fee, increasing the cost of the divorce.

To wrap this up, I want to remind you of two saying. The first is that the person who represents himself in court has a fool for a client. The second is, a fool and his money are soon parted. Represent yourself, and it may cost you.

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A DAY IN COURT

By James Kavanaugh © 1979

(From his collection, Walk Easy on the Earth)

The unsmiling judge with wet, flapping jowls,

Dismissing the tears of husbands and wives,

Spitting out consonants, rolling his vowels,

Tearing out hearts and carving up lives,

Slicing the children apart at their bowels,

Believing that justice latterly thrives—

Wiser than Solomon or blinking old owls—

As long as his echoing edict survives.

The unsmiling judge with stern eyes of stone,

Convinced that his honor will salvage our race,

Rages at crime from his emperor’s throne,

With history’s arrogance etched on his face,

Applauding his parents and disciplined home

Where all of the offspring emerged full of grace:

“For that which is reaped is only what’s sown,”

Then he nods to his clerk to begin the next case.

The unsmiling judge can relax a bit now

While lawyers bow humbly like prep school boys,

A touch of a grin unfurls his brow,

Capriciously gone at the hint of a noise.

He lowers his gavel and narrows his eyes,

No Shah or Napoleon sat more entrenched,

Political puppet whose whims govern lives,

Who paid enough ransom to sit on the bench.

The unsmiling judge who decides in our stead

That petulance lives and justice is dead.

I’d rather be judged by the least of our race,

Than the unsmiling judge with the arrogant face.

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