Friday, February 20, 2015

Preserving Error

In order to preserve error on appeal, you normally have to object.  This is not the case with child custody issues though because of their bearing on the best interests of the minor children involved.  Natural Father v. United Methodist Children’s Home, 418 So. 2d 807, 809 (Miss. 1982) (Explaining that in “case[s] where the basic issue involves the rights and destiny of small children” this Court relaxes “[t]he general rule . . . that questions not raised at the trial level will not be considered . . . as grounds for reversal”).  The problem of this was illustrated in Gateley v. Gateley located decided by the Mississippi Supreme Court last week located here.  In Gateley, no objections were made to a post-trial guardian ad litem recommendation that the father have custody.  The case was affirmed by the Mississippi Supreme Court.  They noted that the issues were reserved for appeal because child custody was involved however, applying the familiar substantial evidence rules, they affirmed the chancellor because there was not substantial evidence that the decision of the chancellor was wrong.  Apparently neither attorney cross-examined the GAL regarding any deficiencies.   I sometimes get a hard time from other people for some of the things I do at trial in order to make sure everything is covered and correct.  However, this case illustrates why that is often necessary. 

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