Intersection of Family Law and Personal Injury

Family Law and Personal Injury law overlap a lot.  Many times in a family law matter, you end up representing the party as a Plaintiff or sometimes as a Defendant on a variety of related suits (i.e. intentional tort suit, wiretapping suit, alienation of affection.)  The Mississippi Supreme Court handed down Watkins v. DHS yesterday located here.  The facts of the case are horrible.  Short version is that mother had her children taken away and placed in DHS custody.  DHS placed the kids in a foster home.  The child was later taken to the hospital grossly underweight.  The hospital reported the abuse and DHS did nothing was the Plaintiffs contention.  DHS stated it never got the report.  The child later died and the foster parents pled guilty to capital murder.  The mother through the child's estate sued DHS for wrongful death and the trial court granted summary judge based on the tort claims act and supposed lack of notice to DHS.  The Mississippi Supreme Court in a unanimous decision reversed the case finding there are genuine issues of material fact on the notice given to DHS and also that the Tort Claims Act was not applicable as DHS had an affirmative duty to investigate with no discretion in the statute once an accusation is reported to them.  This is a waiver of sovereign immunity under the Tort Claims Act.  

Guardianships and Substance Abuse

I was reading an interesting article this morning located here.  The article discusses a case in Minnesota regarding whether a guardianship was appropriate for an alcoholic.  The trial court found that it was and so did the appellate court.  I have not seen much on this issue, but this may be an option also in Mississippi where a person cannot manage their affairs by opening a conservatorship or a guardianship.  The chancery court regularly does involuntary commitments for drug use and I see no reason why a conservatorship or a guardianship would not be appropriate to prevent someone from completely dissipating their assets due to substance or alcohol abuse. 

Magic and Law

I was reading yesterday of someone who was offering to perform spells prior to Court cases.  While some may not give merit to it, from a psychological standpoint this may be helpful to some clients who have strong beliefs in this, particularly those of the Caribbean community. 

Guardian Ad Litem

Chancellors in Mississippi are not bound to follow the recommendations of a guardian ad
litem. However, the chancellor "shall include at least a summary review of the qualifications and recommendations of the guardian ad litem in his findings of fact and conclusions of law" when the appointment of a guardian ad litem is statutorily required. J.P. v. S.V.B., 987 So. 2d 975, 982 (¶20) (Miss. 2008) (citing S.N.C., 755 So. 2d at 1082 (¶18)). Further, "if the court rejects the recommendations of the guardian, the court's findings must include its reasons for rejecting the guardian's recommendations." Id. (citing Floyd v. Floyd, 949 So. 2d 26, 29 (¶8) (Miss. 2007)).  This issue came up in Borden v. Borden located here which was decided by the Court of Appeals on January 21, 2014.  I tend to agree with the dissent more in this case.  The chancellor rejected the recommendations of the guardian ad litem in the custody determination.  The only thing the chancellor said about the guardian ad litem's opinion was the following:

         

           "I've also considered the . . . guardian ad litem's recommendations here. To some extent,

          I disagree with those, and to some extent, I've agreed. But I find under the circumstances

          and based on these factors under Albright that the primary physical care, custody and control of

          these two minor children will be and the same is hereby awarded to the father."

The majority of the Court of Appeals said this was enough under the limited standard of review.  The dissent stated this is inadequate as no specific reason was given for rejecting the guardian ad litem report.  Rehearing has been filed on this case.  If I were to make an educated guess, I believe there is a good chance this case will go up on certiorari.  A copy of the rehearing motion is located here.

Reservation of Jurisdiction

To me, the reservation of jurisdiction on an issue is not used enough.  This can be important on issues of alimony in particular.  In almost every jurisdiction in the country, if no alimony is awarded in the initial divorce, one cannot obtain it later.  This may be an important issue if a spouse has significant health issues.  A reservation of jurisdiction or an award of a nominal amount will reserve the issue if there are changes in circumstances. 

Domestic Violence

Unfortunately, many spouses claim "domestic violence" in an attempt to gain an advantage in a divorce case.  Many times, I end up in cases where the husband is accused of it after he finds out his wife is having an affair.  A conviction prohibits the person from owing a firearm under federal law.  This is in addition to the other punishments for misdemeanor domestic violence (first offense) in Mississippi, which include a fine of up to $500.00 and imprisonment in the county jail for up to six months.  See Miss. Code Ann. § 97-3-7(3).  Additionally, the legislature is looking to increase the sentence to up to one (1) year.  If that happens, this may require justice court to have jury trials if the prosecution seeks a sentence of longer than six (6) months.  Many times solutions can be reached short of trial to avoid this.  Other times, this issue needs to be litigated heavily. 

Guardianship as a Necessary Party

The law protects minors on a variety of issues.  The law in Tennessee and Mississippi is essentially that a minor can do nothing without Court approval.  Many times minors are the beneficiaries of estates or personal injury settlements.  In order to compromise these claims, Court approval is necessary and this normally means filing for a guardianship where the Court can monitor any funds received by a minor.  Many of the judges I practice in front of and I tend to agree with them that a guardianship becomes a necessary party to any action to compromise these claims involving minors. As such, without a guardianship either being set up first or in the order compromising a claim, this may render any release void legally.