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.

Having previously written about the basics of termination of parental rights in Mississippi, it seems apropos to elucidate on the more subtle realities of a termination of parental rights case in the Chancery Court setting.  Here are ten pragmatic considerations I think everyone should think about whether they intend to pursue terminating someone’s parental rights or their parental rights may be terminated.

1. Effort matters

If you try, sincerely try to be an active part of your child’s life and to get your life in order, the court should not be able to terminate your rights. Even if you have faded out of the child’s life for quite a while, taking action to be a parent makes a huge difference. Similarly, if you are facing other issues (chronic unemployment, alcoholism, drug addiction, early life criminality), taking demonstrable steps to show that you are no longer that person matters a great deal. AA, NA, job pursuit, etc. could make or break the case. Truthfully, it does not take much to stop your rights from being terminated. Just try for real. No gimmicks. No half-measures. Try. The rest of us do it every day.

1. Kids do not have to wait forever for their parents to step up.

Life moves fast and childhood moves even faster.  While a parent struggles with addiction, immaturity, criminality, or whatever it is that keeps them from being a good parent, the child continues to grow up. They move on and often a new adult steps into the parental role. At some point, it is too late. The law sets it at six months/a year, but the reality often takes much longer as the parent fades in and out of the child’s life. Yet, at some point, the kid has waited long enough and the non-custodial parent has for all intents and purposes forfeited their right to be a parent.

1. Intentionally cutting a parent out of the kid’s life on purpose may prevent termination

On the other end of things, if the custodial parent cuts the other parent out unilaterally, blocking them from contacting the children at all, the parent’s whose rights are subject to termination can use that as a defense. You cannot desert a child who you are actively being prevented from seeing or contacting. However, effort still matters. Taking action to enforce your rights through the court system is the appropriate avenue to combat a parent who won’t let you see or talk to your child. Sitting around and waiting is not.

1. Drug Addiction is often fatal to a person’s parental rights, even if you get sober.

One of the most difficult issues facing the Chancery Court centers on what to do about chronic drug addicts. Experience (daily experience) in the court shows how fragile sobriety is and the devastating consequence on children when a parent relapses. Combine this with the length of time the parent has abused drugs while their kid is raised by someone else, and the court may feel that it is not worth experimenting with the child to test your sobriety. That being said, continued drug addiction makes termination a much easier decision for the court.

1. Waiting to terminate someone’s rights may end up preventing an adoption

On the other end of things, not taking action to terminate a parent’s rights gives that parent time to fix their lives. It makes sense not to poke a sleeping bear i.e. if the dangerous parent has simply disappeared from the child’s life, the custodial parent may think it is best to let sleeping dogs lie and just move on, particularly if the initial custody case or relationship was difficult, but people change and at some point they may not be morally unfit anymore and they may sincerely want to support the child, at which point the court may find that even if the grounds existed for a while it is no longer in the child’s best interest to have their parent’s rights terminated. As stated above, effort matters. Getting clean and sober, paying child support, and then suing to reinstate visitation from the get go creates a sort of prima facie case against desertion, moral unfitness, and abandonment.

1. If your rights are on the line, you are entitled to an attorney

If you cannot afford an attorney, the court is obligated to appoint an attorney for you. That is how seriously the state takes termination of parental rights, you are afforded the same right to a free attorney as a person facing incarceration.

1. You can voluntarily agree to have your rights terminated

The law allows for a parent to sign a form voluntarily terminating their rights. A person’s rights are not terminated until the court accepts the voluntary relinquishment of parental rights, but this is the simplest mechanism to have your rights terminated. Often when an absent or deeply troubled parent realizes that they have been displaced by a more active and loving step-parent and the child has adjusted to this new parent, sees them as their real parent, and that new person wants to adopt the child, the non-custodial parent may recognize that the adoption is in the best interest of the child and make the magnanimous decision to let the child move on with his or her life in peace, or they just want to stop paying child support.

1. You cannot unilaterally terminate your own rights

This one should be obvious, but you cannot just waive your parental responsibilities because you do not want to be a parent to your child or to avoid child support. Public policy weighs heavily against such awful behavior. Some lawyers will sue to terminate their own client’s rights, but these suits are borderline bad faith in my opinion and require the other party to agree to the termination.

1. The Guardian ad Litem holds a great deal of sway over the outcome of the lawsuit

The court will assign an independent attorney to conduct an investigation into the allegations and make recommendations as to what he or she believes to be in the child’s best interest. The Guardian ad Litem does not act as anyone’s attorney, but as more of an investigator for the court with the mandate to protect the minor child’s best interest. The GAL gets to go to peoples’ homes, review medical records, speak to witnesses, meet the children, interview the parents and pursue whatever they deem necessary to make a determination as to what is in the child’s best interest. Practically, this means that the Guardian ad Litem receives a much more nuanced view of the situation than the court will get in a day or two of trial. Work with the Guardian ad Litem to help him or her understand what is in the child’s best interest.

1. The Best interest of the child rules all

Amongst all of these issues, one consideration looms large over everything else - the best interest of the child. Regardless of the amount of proof on the grounds for termination, if the court determines that cutting a parent completely out of the child’s life is not in the child’s best interest, the court does not have to terminate the parent’s rights, and, in fact, should not. If the court finds that the parent subject to termination has completely reformed him or herself, but the grounds for termination have been established and the court thinks it is in the child’s best interest for his or her parent’s rights to be terminated, then that remains the appropriate course of action.

These are just a few of the considerations and realities of termination of parental rights cases in the Chancery Court. Each case is different and it is important to speak with an attorney about your situation if you intend to sue someone to terminate their rights or if someone has sued you to terminate your rights.

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.