The Chancery Court does not prosper under black and white thinking. The issues presented revolve almost exclusively around the things that happen behind closed doors and deal with the most precious things in our lives. Custody disputes, conservatorship, guardianships, divorces, and even disputes amongst neighbors and business partners seldom have an all-or-nothing resolution and, as such, viewing your case as a zero-sum game is short-sighted strategically and extremely short-sighted outside the court house.

As a quick refresher, a zero-sum game basically refers to a mindset where if one person gains then another necessarily loses. If I take an inch, you lose an inch. If I get five dollars, someone loses five dollars. Gains and losses exist in perfect balance.

There is an attractive simplicity in the balance of zero-sum thinking, but such thinking stands inapposite to the goals of the chancery court: equity. The mandate of the chancery court is to craft equitable remedies to issues in which the law cannot designate a set remedy (very generally). Unlike the circuit courts that apply fact to laws and provide resolution based on those laws, the chancery court has to apply laws to facts and craft the result based on those facts, with the mandate of doing equity i.e. be fair. For example, in a car accident case the law defines negligence, it sets out traffic laws, and sets out damages, the attorneys put on a case to present their version of the facts, arguing that they either do or do not satisfy the law, and the jury (or judge) then makes the decision. The judge basically calls balls and strikes if it is a jury trial and just applies the facts to see if they satisfy the law in bench trials. On the other hand, the chancellor must take a broad set of laws that provide broad governance to behavior and figure out the appropriate response. For example, there cannot be a specific mandate regarding custody because every custody case is different. Zero-sum thinking, which requires a clear winner and loser, simply does not work in family courts because there are no real winners and losers. Everything happens on a spectrum. Therefore, if you go into the court viewing your case in such black and white terms, you will simply miss the boat altogether. What you are asking for is, by and large, impossible.

More importantly, it also stands inapposite to common sense. If you think only in terms of winning and losing, you have already lost. In a legal world in which your relationship with the other parties often continue to some degree after the case is resolved, being the burn it all down party or the even just the overly bitter party is a poison pill. The court is going to see who is the grudge holding jerk and who is the person who sees the situation for what it is.

In the custody context, if you consider your ex getting time with the children as you losing time with the children, you are building resentment immediately into the co-parenting relationship. If you build resentment into the co-parenting relationship, you will make your kids miserable and will dilute your case if it ever does have to go back to court. The inevitable litany of pettiness and passive aggression is like flicking the same spot on an apply over and over again, eventually that spot will rot right away regardless of how soft you flick it. You will go back over a serious issue, but you’ll either emphasize the wrong thing because that is what has driven you crazy for years or your legitimate complaint will get buried in a sea of whataboutism.

In a property settlement context, locking in so tight on if they get it, I don’t get it mentality forecloses effective negotiation and effective litigation. To the latter, the problem is obvious. Wanting things simply so the other side does not get it makes you look like a petty fool. The former is perhaps more devastating. In Mississippi, property is divided equitably, which, again, is most easily understood as fair, not equal (giving an able bodied 42 year old doctor 1/2 of of the entire estate and his disabled wife of 20 years 1/2 of the estate and no alimony is not fair, he will continue to earn a substantial sum while she will be sitting in a leaking boat). Because the estate is viewed as a whole and the court has a great deal of discretion in how it divides the estate, isolating on any one asset or debt not only shows your hand but misses the point. In negotiating a property settlement agreement, you want to get a better deal than you are likely to get in court. You weigh all the risks, including the cost, financially and emotionally of trying the case, the emotional toil of dragging out the divorce, the size of the estate, and your needs, and then make a personal decision as to what you are willing to agree to. Your lawyer will advise you of your rights and the likely outcome, but it is the client who has to make the final call. Obviously, if you are judging things from a zero-sum perspective, you force yourself to either take massively damaging and unnecessary risks or to settle for something much less than what you are worth (for some people, punishing themselves or being overly conciliatory is a real issue). However, if you view in gradient degrees, you can make the more effective assessment of value and risk, and, if you are smart, exploit the zero sum thinking on the otherside, whether by negotiating what you want based on some erroneous point the other side is making or showing their true character on the stand.

Ultimately, you should know the rules of the game you are playing and the Chancery Court is simply not playing a zero-sum game. If you insist on playing in that manner, be prepared to get left holding the bag.

Acting like an asshole during your divorce is not only a poor strategy but is guaranteed to hurt your children. It is okay to be angry. It is okay to be hurt. It is okay to feel betrayed. Often, those feelings are not only well-deserved but needed to process the dissolution of what you once thought was a life long loving partnership. However, it is not okay to put those feelings on your children.

In my office, we often discuss the length of litigation versus the length of co-parenting. Litigation ends. Your connection to the other parent never really ends and, absent termination, only recedes far into the background once your children have grown. Until then, the goal is for you and your ex to co-parent as peacefully as possible, not for them, but for your children. And if your counter-part insists on acting like a prick, you do not get a free pass to act like one back.

Why?

Because your kids are what matters. Your job during the divorce is to help your kids get through it with as little stress, anxiety and trauma as possible. You want them to remain kids. Lord, let them remain kids.

To do that, you have to not bad mouth the other parent. You have to be supportive even with things you do not necessarily agree with. You have to give your kids time to adjust and the other parent to adjust. You have to be polite at events. You should send pictures of your kids to your ex just like you did when you were together. You do not discuss the court case with the kids. You reassure them they are loved by both parents.

You do draw lines for the kids safety and well-being. Some things are easy. If your ex smokes meth or is violent or has severe mental health problems, then it is a no brainer to take action to protect your kids - take legal action (Employing self-help (going against a court order) is a bad idea. Your lawyer is not just your advocate, he or she is also your counselor. Use their counsel). If the other side is bad off and putting your kids in danger or may put them in real danger, your lawyer has weapons at his or her disposal to help you.

Other things, however, are much more complicated. Things like bedtimes, meals, outside play, and screen consumption may drive you up the wall. You may think the way your ex is handling things is harmful to your kids, but you have to draw a careful line on how you handle things.

Generally, first you try to address these things with your ex. Talk like grown-ups. Point out the concerns. Give your ex room to parent and trust them as much as you can. Assume good intentions. Is your ex the type of person who would hurt your kid? If the answer is no (and if they never have in the past and have never feigned as if they would, then the answer is no), then back off and help your ex in a way they will accept.

If it is more than that, talk to your lawyer. You may have a case for modifying custody. The court’s paramount concern is the best interest of children. Discuss the standards and the level of bad behavior needed to change custody or visitation. These things happen all the time. You have to do it the right way though.

What you cannot do is spiral. You cannot get in fights. You cannot bad mouth the parent to your kids. You absolutely cannot air grievances on social media. All of these things are bad for your kids but also bad for your court case.

The courts want maturity and stability. They are not perfect, but you must put yourself in a position at all times to say loudly and proudly “My kids come first” and you actions have to show the truth in that statement.

If you need help, contact my office and set up a consultation.

After a successful morning in court, I decided to talk a bit about guardianship and conservatorships. I go a bit more in-depth below the video.

We do a lot of good in my practice. A big part of my success centers on my belief that whatever we do, we do it for the right reasons. If I agree to represent you in a divorce it won’t be because you paid me but because I believe that I can help you not just in the courtroom but also help you improve your life and your kids lives. Similarly, in a custody case, I will only represent a parent if I believe I can help that child have a better life, which means that is what my client must want too. We don’t do revenge and we don’t do petty at the Pavlov Law Firm.

However, some of the things we do are specifically designed to help those in need the best interest standard for custody of children shares this mandate, though people’s motivations vary). Guardianships and conservatorships are an example of an area of law that is designed solely to help those in need. Without diving too deeply into the specifics of the law, suffice it to say that the court’s sole focus in any guardianship or conservatorship matter is the protection of a vulnerable person, whether that person be a now grown-up disabled child or an elderly parent dealing with dementia or other health issues.

Here is a common fact pattern to illustrate how this works: A client comes to see me because their elderly father is suffering from dementia and needs help paying bills and arranging medical treatment. The client’s initial thought is to have a Power of Attorney drawn up, but, obviously, the father’s capacity would render the Power of Attorney suspect at a minimum. Further, the power of attorney does not help set the parameters of the client’s acceptable powers (POA’s are broad, which is part of the danger) and it can be revoked. Further, if the client has brothers or sisters, particularly if they lean a bit self-involved, self-righteous, and/or selfish, operating under a POA could lead to very complicated allegations. I also find that ethics can become quite complicated for a person with a POA over their elderly parents. All the work that goes in to helping someone with such needs can be overwhelming and a generous gesture from the parent can quickly be interpreted as overreach or taking advantage by the adult child.

The guardianship and conservatorship solves these issues. The court’s oversight and the process for establishing the guardianship and conservatorship forces transparency. Ultimately, there will be no question over the correctness of the guardianship or conservatorship as the burden of proof is quite high, if easily satisfied based on obvious infirmities. Moreover, the conservator is a fiduciary and therefore holds major responsibilities to the Ward and must act in their best interest, something that is a lot easier to do when you have a black robe reviewing everything. The funds will be properly placed into a conservatorship account and the conservator will have to do an accounting each year. Anyone approved by the court will be able to review the accounting and, of course, the judge will review it. Further, the court will also set budgets when appropriate and approve major expenditures and sales of assets, while providing the conservator enough flexibility to hopefully handle the ward’s affairs without much judicial oversight.. So if the house is sold, well, the court will have had to approve it, but the day to day things will not until the accounting. Any question or concern from any interested party can be brought to the court and transparency is essential so no one should fear these questions. And since this is all pretty much set in stone, most folks have very little interaction with the court after the conservatorship and guardianship is established other than the accountings because the court is not there to make these things harder. The court is there to help the Ward. If there are problems, bring it out in open court and let the black robe make the hard calls.

This does not mean that Guardianship and Conservatorships are easy things. It is a major burden to act as someone’s Guardian and Conservator. It is a selfless thing to do and most people do not get paid for doing it, though there are provisions for pay in some situations and for reimbursement of expenditures made on the Ward’s behalf, including, potentially, the establishment of the guardianship and conservatorship. Further, the court’s feelings about what is best for the Ward may differ from the client’s, but that possibility is inherent in any matter in the chancery court that focuses on best interest. Still, if you are working truly for the best interest of the Ward, the court and the client will ultimately end up on the same page (with good lawyering).

Termination of parental rights presents one of the most challenging issues that come before our chancery courts. It is also a pre-requisite to most adoptions (absent a deceased parent, of course). Terminating a person’s parental rights means exactly what it sounds like. The court permanently removes all of a person’s rights to their child, including the right to be identified as the child’s parent on his or her birth certificate. It is commonly known as the Death Penalty for Parents. Once a person’s parental rights are terminated, they have as much right to the child as a random person working at a gas station down the street i.e. no rights. In the eyes of the law, that persons has become a stranger to the child.

Parents have a “fundamental liberty interest…in the care, custody and management of their child” that cannot be taken away without clear and convincing evidence of the required statutory grounds for termination of parental rights. As termination of parental rights infringes on a person’s fundamental rights, there is a strong presumption in favor of preserving parental rights. “It is well settled that a parent's right to raise [his] children is of a fundamental nature, and is entitled to great protection, but that parental rights may be terminated when the welfare of the children is threatened. “State statutes providing for the termination of parental rights are subject to strict scrutiny and ‘[c]ourts may not add to the enumerated grounds.”

Considering the extreme and permanent nature of termination of parental rights, the courts and legislature have made clear that a party seeking the termination of a party’s parental rights must produce evidence so clear and convincing that it “produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact-finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.” Even once the clear and convincing burden has been met, the court must then consider the best interest of the child. The best interest of the child is the polestar consideration of the court.

While all of this sounds complicated and weighty, the day-to-day reality of termination of parental rights cases often end up quite straightforward, obvious even. Due to the serious nature of termination of parental rights and the clear standards for terminating parental rights, termination lawsuits are only brought when things have gone seriously awry in the non-custodial parent’s home. Generally, our courts look to three separate causes justifying the termination of a person’s parental rights: abandonment, desertion, or moral unfitness.

The simplest is abandonment, which generally means the parent has not made contact with their child for one year (six months if the child is under three). If you have not called, tried to call, visited or made a real effort to visit your child in over a year (or six moths), the present parent or acting parent can sue to terminate your rights. Voluntary Relinquishment of Parental Rights will be addressed in a separate post, but it is the easiest method for terminating someone’s parental rights.

Desertion generally means that a parent refuses or has wholly failed to act as a parent, providing for the child, taking care of the child, or  raising the child. The law defines it as (i) Any conduct by the parent over an extended period of time that demonstrates a willful neglect or refusal to provide for the support and maintenance of the child; or (ii) That the parent has not demonstrated, within a reasonable period of time after the birth of the child, a full commitment to the responsibilities of parenthood. If you pop up on occasion demanding the child, preventing a finding of abandonment, but you do nothing for the child, instead using the child selfishly to get back at your ex or to make yourself feel like less of a piece of trash, then the person raising the child can sue for desertion. If the other parent has stopped you from acting as a parent, then you have a defense, but generally the proof is in the pudding.

Moral unfitness trends more towards chronic criminality and addiction issues - things that place the child in danger while in the parent’s care with a history indicating that these dangers are unlikely to resolve. Chronic alcoholics with multiple DUIs, meth heads who refuse to get clean or cannot stay clean, repeat domestic abusers, murderers, convicted thieves, drug dealers, prostitutes all typically fall within this category. Truthfully, drug addiction provides the most complicated situation in termination cases. Even an active pursuit of sobriety may not stop a termination if efforts to stay clean have failed in the past and the children have been impacted adversely by the parent’s drug addiction.

However, even where the custodial parent/grandparent/third party can prove one of the above grounds, he or she must also prove that termination befits the best interest of the child. The best interest of the child always lays at the heart of any custody case. It is the polestar consideration of the chancery court. Though typically if a party can prove one of the above grounds termination is self-evidently in the best interest of the child, there are times when even the sort of bad behavior described above cannot undo the parental bond and courts should not terminate a parent’s rights.

Generally, there are two major factors the courts consider when rejecting a petition for termination where the grounds can be proven: The parent has established a lengthy history of stability and the child desires some sort of relationship with the parent. The first is a pre-requisite for contact of any sort. If the parent remains a danger or woefully unstable then the risk of reunification to the long term well being of the child is just too much. The second recognizes the damage that is done by removing a parent from a child’s life. The child will inevitably feel the loss of the parent, particularly if they have a working memory of the parent - this issue is not as pressing in cases in which the child has little to no working memory of the absent parent. However, if the child remembers their parent before things went wrong, the court should pay closer attention to the negative consequences of removing a parent from the child’s life. In these situations, the court will often require an attempt at reunification counseling. While reunification may or may not work, it at least gives the child a chance to have questions answered and receive some sort of closer.

The point of all of this, of course, is to help the child grow up with as much stability, love and consistency as possible; to protect the child from being placed in dangerous and destructive situations, and to allow the child to have parents worthy of the title. In my mind and in the way I read the law, it is very child focused. Though the rights of the parents are at issue, the parent is an adult and the child is a child. The child comes first.