Family Law

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Contents

Child support

The amount of a child support award is governed by the Mississippi child support guidelines. The guidelines provide that a noncustodial parent should pay the following percentage of his or her adjusted gross income in support of children: 14% for one child, 20% for two children, 22% for three children, 24% for four children, and 26% for five or more children. Miss. Code Ann. § 43-19-101. The Mississippi statute provides that the guidelines are presumptively correct for persons with an adjusted yearly income between $5000 and $50,000.

To determine the proper amount of support, a court must first identify a payor’s gross income from all sources. Income may be imputed to a payor who is working at less than full capacity or who conceals or diverts income. The payor’s gross income is adjusted for taxes, other mandatory deductions, and support for other children. The statutory percentages are then applied to the adjusted gross income to produce the presumptively correct amount of support. A court may then deviate below or above that amount based on statutory criteria for deviation. A court may deviate from the statutory guidelines based on (1) a child’s extraordinary medical, psychological, dental, or educational expenses; (2) other special needs of the child; (3) shared parenting arrangements; (4) the age of the child; (5) independent income of the child; (6) spousal support to the custodial parent; (7) total available assets of the parents; (8) seasonal variations in income or expenses of one or both spouses; and (9) any other adjustment needed to achieve an equitable result. Miss. Code Ann. § 43-19-103. In addition to the basic support award, a court may order payment of expenses not considered to be covered by the basic award, including health insurance, out-of-pocket medical expenses, life insurance, and college expenses. thin the scope of DHS’ representation.

Are FEMA benefits counted as part of income for purposes of child support?

As a general rule, only regular income or payments are included in gross income. One-time or sporadic income or payments are not. On the other hand, the Mississippi statute provides that income includes “any other payments made by any person, private entity, federal or state government or any unit of local government.” No Mississippi case was found addressing whether FEMA benefits are counted as income for purposes of child support.

Are unemployment benefits counted as part of income for purposes of child support?

Yes. The Mississippi guidelines provide that gross income includes workers' compensation, disability, and unemployment benefits. Miss. Code Ann. § 43-19-101.

Should child support be reduced if a payor has become unemployed or otherwise lost income because of the disaster?

A court may modify child support if a payor’s income is substantially reduced or the payor loses a job. The income reduction must be involuntary, must not have been foreseeable at the time of the decree, and must impact the payor’s ability to meet reasonable needs. A slight decrease in income does not necessarily require an adjustment of support. Riley v. Riley, 884 So. 2d 791 (Miss. Ct. App. 2004). However, a payor may not unilaterally adjust support; only a court may order support reduced.

What is the amount of the modified support?

A court’s determination of the proper amount of modified support is governed by the Mississippi child support guidelines. In most cases, courts order modified support at the level of the guidelines. However, a court may deviate from the guidelines if the amount under the guidelines is not sufficient to meet the children’s needs, and the court makes specific findings of fact to that effect.

When does a modification of support become effective?

The effective date of a child support modification depends upon whether the modification increases or decreases the award. A decrease in child support must be made prospectively, because child support payments that become due while a petition for modification is pending are vested and cannot be forgiven or modified. Thurman v. Thurman, 559 So. 2d 1014 (Miss. 1990).

Is an out-of-court agreement between parents for a temporary reduction in support valid?

In Mississippi, an out-of-court agreement between parents to modify child support is not ordinarily enforceable. Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). A payor should not rely on an out-of-court agreement to reduce support – custodial parents have recovered substantial arrearages in spite of their agreement to reduce support. Houck v. Ousterhout, 861 So. 2d 1000, 1002 (Miss. 2003) (finding father in arrears in the amount of $89,000). But see Dorr v. Dorr, 797 So. 2d 1008 (Miss. Ct. App. 2001) (suggesting in dicta that out-of-court agreements may be honored in some cases, if the child is not adversely affected).

How does a temporary change in custody affect child support?

Support is modified when a noncustodial parent takes physical custody, even though no court order changing custody is entered. Frazier v. Burnett, 767 So. 2d 263, 267-68 (Miss. Ct. App. 2000). No support should be paid for the months in which a child lives with the parent who is legally the noncustodial parent. See Alexander v. Alexander, 494 So. 2d 365, 368 (Miss. 1986) (even though no modification petition filed for twenty months). Temporary custody refers to an actual change in living arrangements, not to a situation in which a child stays a week or two with someone other than the custodial parent.


What if someone other than the parents has temporary custody?

Support should be paid by the noncustodial parent to the person who has actual physical custody of a child.

How can a parent collect support from a noncustodial parent who has relocated?

An outstanding order of support may be registered in another state for enforcement. A payee may also send a child support order directly to a payor’s employer in another state without first registering the order. The employer must immediately notify the employee and begin withholding. A payee may also, without registering an order, send the payor’s state enforcement agency the order and request that it use any available administrative enforcement mechanisms to collect the amount due. The Department of Human Services may seize financial accounts and certain payments such as worker’s compensation payments, life insurance, or tax refunds, to satisfy unpaid child support.

How is support modified if the parents live in different states?

Modification of child support in interstate cases is governed by the Uniform Interstate Family Support Act. Under this Act, a support order must be modified by the court that issued the order so long as either parent or the child remain in that state. No other state has jurisdiction to modify the order. Miss. Code Ann. § 93-25-17 (2004). However, the parties may consent to a transfer of jurisdiction to another state. Miss. Code Ann. § 93-25-17(2)(a) (2004). If all parties have moved from the state where the order was issued, the order must be modified by a court in the state whether the defendant lives. Miss. Code Ann. § 93-25-17(2)(a) (2004).

What if the noncustodial parent cannot be found?

In every state, the agency responsible for establishing and collecting child support in that state is linked to a national parent locator service. In Mississippi, the responsible agency is the Child Support Division of the Mississippi Department of Human Services.

Child Welfare, Foster Care and Youth Court Information

How do I find provisions of the Mississippi Code related to child welfare?

The Mississippi Code is available online at http://www.sos.state.ms.us/pubs/MSCode/. This version is searchable by keyword. Chapter 15 on Child Welfare can be found under Title 43 on Public Welfare.

Who administers and supervises public child welfare services?

The Department of Human Services (DHS). The phone number for the Department of Human Services is (601) 359-4500 or 1-800-345-6347. Their website is at: http://www.mdhs.state.ms.us/.

What powers do Mississippi counties have over child welfare services?

The county department of public welfare can provide protective services, assume responsibility for the care of dependent children away from the home who are in need of public care, place dependent children or those without proper care in homes and institutions, and serve as a custodian or guardian through an employee when appointed as provided by law.

How can I find a list of children who are in the custody of the State or agencies licensed by the State?

The State is required by law to maintain a registry of children in custody and their status. The phone number for the Department of Human Services is (601) 359-4500 or 1-800-345-6347.

Does Mississippi have a baby drop-off law?

Yes. A parent may drop off a baby to an emergency medical services provider if the baby is 72 hours old or less. Dropping a child off in such a manner is an absolute affirmative defense to child abandonment. An emergency medical services provider means a licensed hospital that operates an emergency department or an adoption agency licensed by the Department of Human Services.

Can children be voluntarily placed in child care?

Yes, children can be placed in foster care voluntarily as well as by being adjudged as abused, neglected, or abandoned. One of the goals of the administration of the foster care system listed in Mississippi Code § 43-15-13(2)(f) is “assuring safe and adequate care of children away from their homes, in cases where the child cannot be returned home or cannot be placed for adoption.” However the parents of a child placed after July 1, 1998, even a child placed in foster care voluntarily, will only be given up to six-month period of time in which to meet the service agreement with the department for the benefit of the child unless the department has documented extraordinary and compelling reasons for extending the time period in the best interest of the child. If this agreement has not been satisfactorily met, simultaneously the child will be referred to the appropriate court for termination of parental rights and placement in a permanent relative's home, adoptive home or a foster/adoptive home. Mississippi Code §43-15-13(4).

What about children classified as destitute or abandoned?

For children who have been abandoned pursuant to the provisions of Section 97-5-1, termination of parental rights shall be initiated within thirty (30) days and placement in an adoptive home shall be initiated without necessity for placement in a foster home. Mississippi Code §43-15-13(4). However this classification is criminal abandonment of a child and the provisions of §97-5-1 require intent on the part of the legal guardian to abandon the child.

How does the foster care system work in the state of Mississippi?

The Family and Child Division of the State Department of Human Services is charged with administering foster care in the state of Mississippi. The phone number to call for information on foster care is 1-800-345-6347 and the web address is http://www.mdhs.state.ms.us/fcs.html. The goals and objectives of the foster care placement system are found in § 43-15-13 of the Mississippi Code available online at http://www.sos.state.ms.us/pubs/MSCode/ .

All children are provided with an initial shelter hearing within 48 hours and entitled to an administrative review after three months and foster care reviews every six months they are in the state’s custody. Mississippi Code §43-15-13(3).

What kinds of placements are available for children in the foster care system?

Several placement options exist in Mississippi foster care including: family foster home, group home, special needs home, special needs institution, or independent living program depending on the child's needs, placement availability, and permanency plan. Child Welfare League of America provides statistics charting the number of children in foster care in the state which is currently around 3000. The site also offers a link to the Mississippi state foster care report card. This includes a graph illustrating the percentage of children in each type of placement- the majority, over 35%, are in a foster home placement, 15% are in group homes. Available at http://www.childwelfare.com/mississippi.htm

What statutes govern the courts that address child welfare issues?

Child welfare issues in Mississippi are adjudicated by the Youth Court. The statutes governing the Youth Court – its structure, organization, jurisdiction, and operation – are found in Section 43 of the Mississippi Code, the section governing Public Welfare issues. The principal subsections of the Code that govern the Youth Court are Miss. Code Ann. § 43-21-101, et seq.

How is the court organized?

The Youth Court is contained within the division of the family court of each county court where the county has a family court, or as a division of the county or chancery court where there is no family court. (Miss. Code Ann. § 43-21-107).

What jurisdiction does the court have over these issues?

Generally, exclusive and original Youth Court jurisdiction extends to offenses committed by children (subject to the listed exceptions defined below), and cases that arise from the Youth Court’s abuse and neglect intake procedure. The Youth Court has exclusive original jurisdiction in all proceedings concerning a delinquent child, a child in need of supervision, a neglected child, an abused child or a dependent child. There are statutorily delineated exceptions to Youth Court jurisdiction. Specifically, if the child attempted or committed act punishable by life imprisonment or death if committed by an adult, or attempted or committed an act with a deadly weapon. Certain child abuse cases that arise in the course of a custody action between parents already pending in the chancery court are also exempted from the jurisdiction of the Youth Court. Youth Court jurisdiction continues until child’s 20th birthday (Miss. Code Ann. § 43-21-151).

The Youth Court also has a role in overseeing foster care cases. Mississippi law requires the Youth Court or its designee to conduct a foster care review every six months. (Miss. Code Ann. § 43-15-13)

Are there special rules governing Youth Court?

The conduct of Youth Court proceedings is delineated in Miss. Code Ann. § 43-21-203. The proceedings are civil, not criminal (even in cases in which juveniles are tried for committing offenses), and are conducted without a jury. Youth Court hearings are closed, meaning that the general public is excluded, and only those persons who are found by the youth court to have a direct interest in the cause or work of the youth court will be admitted. Any such person has the right to appear and be represented by legal counsel. The Youth Court has discretion to exclude the child from attending proceedings in a limited set of cases, with the consent of the child’s counsel: in neglect and abuse cases, and any portion of a disposition hearing that would be injurious to the best interest of the child in delinquency and children in need of supervision cases.

Are Youth Court records confidential?

Youth Court records are closed to public inspection. (Miss. Code Ann. § 43-21-261). Generally, records involving children may not be disclosed, other than to necessary staff of the youth court. The Youth Court may issue an order, however, specifying the purpose and scope of disclosure, in cases where the Youth Court concludes, in its discretion, that disclosure is required for the best interests of the child, the public safety or the functioning of the youth court. The parent, guardian or custodian of the child (or such parties’ attorney) may also inspect the record. Finally, the child may request that counsel inspect the record.

Do parents and other adults have a right to legal representation in Mississippi Youth Court proceedings?

Parents and other adults, who are parties to the proceeding, do have a right to counsel (Miss. Code Ann. § 43-21-201(1)), but if indigent, don’t have the right to have counsel appointed by the youth court (See In the Interest of I.G., 467 So. 2d 920, 922 (Miss. 1985)).

  1. Each party shall have the right to be represented by counsel at all stages of the proceedings. …
  2. When a party first appears before the youth court, the judge shall ascertain whether he is represented by counsel and, if not, inform him of his rights including his right to counsel. …

Miss. Code Ann. § 43-21-201.

"Both the statute covering youth court adjudicatory hearings [§ 43-21-557] and the statute governing youth court proceedings generally [§ 43-21-201], impose a mandatory duty upon the judge to ascertain whether each party is represented by counsel and, if not, to inform him of his right to counsel. These statutes do not, however, provide for the appointment of counsel for the parents." In Interest of I.G., 467 So. 2d 920, 922 (Miss. 1985).

Do children have a right to legal representation in Mississippi Youth Court proceedings?

Children have a right to counsel at all critical stages, and if indigent, have the right to have counsel appointed by the youth court (Miss. Code Ann. § 43-21-201(1)).

  1. … If the party is a child, the child shall be represented by counsel at all critical stages. If indigent, the child shall have the right to have counsel appointed for him by the youth court. …

Miss. Code Ann. § 43-21-201.

"Where ‘critically important’ actions determining vitally important statutory rights of the juvenile are concerned, the juvenile is entitled to a hearing upon constitutional principles relating to due process with the assistance of counsel." Patterson v. Hopkins, 350 F.Supp. 676, 682 (N.D. Miss. 1972), aff’d, 481 F.2d 640 (5th Cir. 1973).

Are children represented by lawyers, guardians ad litem or volunteers?

The court is required to appoint a guardian ad litem for the child in certain cases, and has the discretion to make such an appointment in other cases (Miss. Code Ann. § 43-21-121(1)). The court may appoint either a suitable attorney or a suitable layperson as a guardian ad litem (Miss. Code Ann. § 43-21-121(4)). If the court decides to appoint a layperson as a guardian ad litem, the court is also required to appoint an attorney to represent the child (Miss. Code Ann. § 43-21-121(4)). The court, in its discretion, may also appoint a trained volunteer layperson to assist the child, in addition to the appointment of a guardian ad litem (Miss. Code Ann. § 43-21-121(7)). (1)

What are the criteria for appointing a guardian ad litem for a child?

The youth court shall appoint a guardian ad litem for the child: (a) When a child has no parent, guardian or custodian; (b) When the youth court cannot acquire personal jurisdiction over a parent, a guardian or a custodian; (c) When the parent is a minor or a person of unsound mind; (d) When the parent is indifferent to the interest of the child or if the interests of the child and the parent, considered in the context of the cause, appear to conflict; (e) In every case involving an abused or neglected child which results in a judicial proceeding; or (f) In any other instance where the youth court finds appointment of a guardian ad litem to be in the best interest of the child. Miss. Code Ann. § 43-21-121

Is there an assigned counsel system for either parents and/or children?

Although adult parties have the right to counsel, indigent adult parties do not have the right to have counsel appointed by the youth court (Miss. Code Ann. § 43-21-201(1)). Therefore, there is no court assigned counsel system for adult parties to proceedings, including parents.

Children have the right to counsel during all critical stages of a proceeding, and the youth court assigns counsel to indigent children (Miss. Code Ann. § 43-21-201(1)). Consequently, there is an assigned counsel system for children (Miss. Code Ann. § 43-21-121(4)).

How do formal court procedures work?

Formal proceedings may be initiated by petition, for an adjudication that a child is a delinquent child, a child in need of supervision, a neglected child, or an abused child. (Miss. Code Ann. § 43-21-451). The petition must be filed within five days from the date of a detention hearing or shelter hearing continuing custody of the child. Unless another period of time is authorized by the youth court or its designee, in non-custody cases the petition shall be filed within ten days of the court order authorizing the filing of a petition. The proceeding must be scheduled within 90 days of filing the petition, within 21 days if the child is in detention, or within 30 days if the child is in a shelter. (Miss. Code Ann. § 43-21-551).

What is a shelter hearing?

In abuse and neglect proceedings, the Youth Court conducts shelter hearings when certain criteria have been met. (Miss. Code Ann. § 43-21-309). Shelter hearings are conducted when reasonable efforts have been made to maintain the child within his own home, but the circumstances warrant his removal and there is no reasonable alternative to custody, or the circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his own home, and there is no reasonable alternative to custody. At conclusion of hearing, court must release child to parent/guardian’s custody unless there is probable cause that the Youth Court has jurisdiction.

Additional Practice Information

Are there any organizations which represent parents and children in Youth Court proceedings?

North Mississippi Rural Legal Services represents parents (and sometimes children) in child welfare proceedings of the youth court in 39 Mississippi counties. Contact Information: Toll Free Number: 1-800-898-8731 (Administrative Office) Hurricane Relief Hotline: 1-888-808-8049 http://www.nmrls.com/

Mississippi Center for Legal Services represents parents (and sometimes children) in child welfare proceedings of the youth court in the other Mississippi counties. Contact Information: Toll Free Number: 1-800-773-1737 (Administrative Office) http://www.mslegalservices.org

Mississippi Volunteer Lawyer Project (A Joint Venture between Mississippi State Bar Association & Mississippi Legal Services Program) Toll Free Number: 1-800-682-0047 http://www.mvlp.net/ http://www.msbar.org/ms_volunteer_lawyers_project.php


Does the American Bar Association Provide legal assistance for disaster victims?

The ABA has set up a disaster hotline for those seeking legal help because of Katrina: 1-866-255-4495. The ABA has a website with information for lawyers affected by Katrina and those needing legal help as a result of Katrina at: http://www.abanet.org/katrina/victims.html.


Where can I find additional information about children in Mississippi Foster Care?

National Resource Center for Family-Centered Practice and Permanency Planning has established a webpage with numerous links related to child welfare in the Gulf region in the wake of Hurricane Katrina available at http://www.hunter.cuny.edu/socwork/nrcfcpp/disaster_relief.html

Court Appointed Special Advocates of South Mississippi is a volunteer organization that represents children in the foster care system. Their website has contact information and a fact sheet about the organization. http://www.oceansprings-ms.com/casa.htm

Where can I find general information, statistics, and progress reports on child welfare in Mississippi?

The Child Welfare League of America fact sheet on Mississippi can be found at: http://www.cwla.org/advocacy/statefactsheets/2004/mississippi.pdf. The United States Department of Health and Human Services Administration for Children and Families’ child welfare review on Mississippi can be found at: http://www.acf.hhs.gov/programs/cb/cwrp/staterpt/ms/intro.htm.

The Role of a Guardian Ad Litem

What is a Guardian ad Litem (“GAL”)?

GAL literally means “guardian to the thing.”

  1. The role of a GAL is one of protecting the best interests of the child.
  2. The Mississippi Supreme Court has said that a GAL is charged with a duty to zealously represent the child’s best interest. S.N.C. v. J.R.D., Jr., 755 So.2d 1077, 1082 (Miss. 2000)
  3. A GAL fulfills its role when the GAL “vigorously advances a position that the guardian believes to be in the child’s best interest.” R.B.S. v. T.M.S., 765 So.2d 616, 620 (Miss. App. 2000)
  4. A GAL acts as the eyes and ears of the court. A GAL is not a decision-maker; rather the GAL serves the role of investigator, adviser, and source of unbiased opinions for the youth court judge or chancellor that are independent of the motivations that may affect the adult parties. P.K.C.G. v. M.K.G., 793 So.2d 669 (Miss. App. 2001)

How does a Best Interests Attorney or GAL differ from a child’s attorney?

The role of a child’s attorney is to represent the child, which means to advocate the child’s personal preferences even if it is contrary to the best interests of the child.

When, or under what circumstances, is a GAL appointed?

Youth Court Proceedings

Miss. Code Ann. § 43-21-121 provides that the youth court shall appoint a GAL for the child if:

  1. The child has no parent, guardian or custodian;
  2. The youth court cannot acquire personal jurisdiction over a parent, guardian or custodian;
  3. The parent is a minor or a person of unsound mind;
  4. The parent is indifferent to the interest of the child;
  5. The interests of the child and the parent, in the context of the case, appear to conflict;
  6. An abused or neglected child is involved in the judicial proceeding; or
  7. Appointing a GAL, according to the court, is in the best interest of the child.

Youth court has exclusive jurisdiction in all proceedings concerning a delinquent child, an abused or neglected child, a child in need of supervision, and a dependent child. Miss. Code Ann. § 43-21-105.

Chancery Court Proceedings
  1. Chancery court has jurisdiction to decide matters of paternity, custody, or visitation, absent allegations of abuse, neglect or delinquency. If charges of child abuse arise in the course of a pending parental custody action, chancery court has ancillary jurisdiction.
  2. State law mandates that a Chancellor appoint a GAL in the following actions:
    1. Termination of parental rights – Miss. Code Ann. § 93-15-107(1)
    2. Allegations of child abuse, sexual or physical – Miss. Code Ann. § 93-5-23
    3. Contested Adoptions – Miss. Code Ann. § 93-17-8(1)(b). However, a GAL is not required in consensual adoption cases.
  3. A Chancellor has discretion to appoint a GAL in the following actions:
    • Modification of custody and child support, Dep’t of Human Servs v. Marshall, 856 So. 2d 441 (Miss. App. 2003), cert. granted, 852 So. 2d 551, affirmed in part, reversed in part, 859 So. 2d 387 (Miss. 2003);
    • Determination of paternity is at issue, Williams v. Williams, 843 So. 2d 720 (Miss. 2003);
    • Matters involving an infant or defendant of unsound mind, including mentally incapacitated and vulnerable adults, Miss. Code Ann. § 9-5-89.
  4. A Chancellor has discretion to appoint a GAL in cases where there is no allegation of abuse or neglect or in an uncontested adoption proceeding.

Who may be appointed to serve as a GAL?

  1. The youth court shall appoint either a “suitable” attorney or “suitable” layperson who:
    • Is a “competent person;”
    • Has no adverse interest to the child; and
    • Has received child protection and juvenile justice training provided or approved by the Mississippi Judicial College within the year preceding the appointment.
  2. If a layperson is appointed as a GAL, the youth court shall also appoint an attorney to represent the child.
  3. DHS has a custodial, not a representational role. DHS may request the court to appoint an attorney to represent the child or a GAL to represent the best interests of the child, but may not undertake those roles itself. DHS may give an opinion at a hearing involving the child as to the best interests of the child.
  4. Court Appointed Special Advocates (CASA) are volunteers that are trained lay persons who may be appointed by the court to either act as a GAL or help assist children. If properly appointed, CASA workers may give an opinion at a hearing involving the child as to the best interests of the child.

At what point in the proceedings is a GAL appointed?

Youth Court:
  1. When custody is ordered; or at the first judicial hearing regarding the case, whichever occurs first. Miss. Code Ann. § 43-21-121.
  2. The court must continue the proceedings for a reasonable time to allow the GAL an opportunity to prepare for the matter. Miss. Code Ann. § 43-21-121.

What does our court tell us are the duties of a GAL?

  1. A GAL must conduct an independent investigation, including interviewing the child. Miss. Code. Ann. § 43-21-121(3).
  2. A GAL must make specific recommendations to the court. Miss. Code. Ann. § 43-21-121(3).
  3. A GAL must enter reports as necessary with the child’s best interest as the “polestar” consideration. Miss. Code. Ann. § 43-21-121(3)
  4. A GAL should attend all court hearings.
  5. An independent investigation includes:
    • Personally meeting with and observing the child;
    • Personally interviewing the child;
    • Interviewing the child’s parents, with consent of counsel;
    • Interviewing other people involved in the child’s life.
  6. A GAL should submit accurate reports to the court along with specific recommendations.
  7. The Court is required to make sure that the GAL is adequately instructed on and properly performs these duties. Miss. Code. Ann. § 43-21-121
  8. The Mississippi Supreme Court has said that a GAL should report on the “present health, education, estate and general welfare of the children.” D.J.L. v. Bolivar County Dep’t of Human Servs, 824 So.2d 617, 622 (Miss. 2002).
  9. The Mississippi Supreme Court has also said that a GAL “failed to ‘zealously’ inquire into and protect” the best interests of the child when the GAL: (1) relied on representations of others, such as DHS and CASA workers; (2) failed to talk privately with the children; (3) failed to present an independent report to the trial court; (4) failed to testify before the court, even if the GAL submits to cross-exam by other witnesses. D.J.L. v. Bolivar County Dep’t of Human Servs, 824 So.2d 617, 622-23 (Miss. 2002).
  10. It is important to remember that a GAL is not an adversary party. Miss. Code. Ann. § 43-21-121(3).

What is a step-by-step way to fulfill that charge?

Accepting Appointment
  1. File an Order Appointing Guardian Ad Litem for The Minor Child And Authorization For Release Of Information.
  2. Once you have received a stamped “filed” copy of the Appointment Order, send a copy of the Order to all parties in the case to let them know that you have been appointed GAL.
  3. Obtain the File from the Court or the relevant documents from one of the parties.
  4. Review the File.
  5. Meet with the Child – adapt all communications to the child’s age, education level, cognitive development, and cultural background.
  6. In a developmentally appropriate way, explain to child that you will:
    • Investigate and advocate the child’s best interests;
    • Investigate the child’s views about the case and report them to the court unless the child requests that they not be reported;
    • Use information from the child for those purposes; and
    • Will not necessarily advocate what the child wants.
Investigation
  1. Review any court files of the child, siblings who are minors or are still in the home, potentially relevant court files of parties and other household members, and case-related records of any social service agency and other service providers;
  2. Review the child’s social services records, mental health records, drug and alcohol related records, medical records, law enforcement records, school records, and other records relevant to case;
  3. Contact lawyers for the parties and non-lawyer representative or CASA workers;
  4. Contact and meet with parties, with permission of their lawyers;
  5. Interview individuals significantly involved with the child, including, if appropriate, case workers, caretakers, neighbors, relatives, school personnel, coaches, clergy, mental health professionals, physicians, law enforcement officers, and other potential witnesses;
  6. Review the relevant evidence personally – do not rely on other parties’ or counsel’s descriptions and characterizations; and
  7. Stay apprised of other court proceedings affecting the child, parties and other household members.
  8. Submit a report, including specific recommendations.

Findings of Fact

  1. A Chancellor’s findings of fact should include a summary of the GAL’s qualifications and report.
  2. When a court rejects the findings of a required GAL, the court’s findings must also include its reasons for rejecting the report. This is not necessary if the appointment was discretionary.

A Day in Youth Court: Rights of Children and Their Parents

PROCESS FOR DELINQUENCY CASES

Custody

A child is taken into custody if a police officer has probable cause to believe that the child:

  1. committed a delinquent act
  2. is physically dangerous
  3. is in danger
  4. needs medical or emergency care
  5. may be a runaway

Detention Hearing

The youth court judge determines whether the child should be detained or released from custody. The judge does not evaluate the facts of the case; rather, the judge evaluates whether the child is a risk to himself or the community. If the child is released, the youth court judge needs to ensure that the child is released to a responsible adult.

Adjudicatory Hearing

The youth court judge looks at the facts and evidence to determine whether the child committed a delinquent act. The State calls its witnesses and puts on its case. The defense has a right to cross-examine all witnesses called by the State. The defense also has a right to call its own witnesses. After hearing the evidence, the youth court judge then makes a determination as to whether the child is delinquent or in need of supervision.

Dispositional Hearing

The youth court judge decides on the appropriate measure to deter the child from committing the delinquent act again.

In making this determination for a child adjudicated delinquent, the youth court judge considers the following factors:

  1. The nature of the offense
  2. The manner in which the offense was committed
  3. The nature and number of the child’s prior delinquent acts
  4. The child’s need for care and assistance

In making this determination for a child in need of supervision, the youth court judge considers the following factors:

  1. The nature and history of the child’s conduct
  2. The family and home situation
  3. The child’s need for care and assistance

What Are The Youth Court Judge’s Options For A Child Who Is Adjudicated Delinquent?

The youth court judge may:

  1. Release the child without further action
  2. Place the child in the custody of a child’s parent(s), relative, guardian, or any other person
  3. Place the child on probation
  4. Order terms of treatment designed to help the child and the child’s parent(s) or guardian
  5. Order terms of supervision (like participation in a program, service, education, civil fine, or restitution)
  6. Suspend the child’s driver’s license for no more than 1 year
  7. Give legal custody to: (1) DHS for appropriate placement; (2) any public or private organization that can assume the education, care and maintenance of the child; or (3) DHS for placement in a wilderness training program or a training school
  8. Recommend that the child attend and participate in the Youth Challenge Program under the Mississippi National Guard
  9. Order the child to the Statewide Juvenile Work Program
  10. Order the child to participate in a youth court work program
  11. Order the child into a juvenile detention center

What Are The Youth Court Judge’s Options For A Child That Is Adjudicated A Child In Need Of Supervision?

The youth court judge may:

  1. Release the child without further action
  2. Place the child in the custody of the parents, relative, guardian, or any other person
  3. Place the child under youth court supervision
  4. Order terms of treatment designed to help the child and the child’s parents or guardian
  5. Order terms of supervision (like participation in a program, service, education, civil fine, or restitution)
  6. Give legal custody to any of the following but in no event to any training school: (1) DHS for appropriate placement, which may include a wilderness training program; or (2) any public or private organization that can assume the education, care and maintenance of the child
  7. Order the child to participate in a youth court work program
  8. Order drug testing

If A Child Is Adjudicated Delinquent, Does The Child Have A Criminal Record?

No. A youth court proceeding is not a criminal proceeding; it is a civil proceeding. The child’s “record” is confidential (meaning it is not a public record).

PROCESS FOR ABUSE AND NEGLECT CASES

Custody

A child is taken into custody if a police officer has probable cause to believe that the child is endangered or when the child’s parent, guardian, or custodian is not available to provide for the care and supervision of the child.

Shelter Hearing

The youth court judge determines whether it is in the best interest of the child to remain in their current living situation or whether the child should be temporarily removed from the home.

The DHS worker will discuss the conditions of the child’s home and the child’s family situation with the court. The child’s parent will have a chance to tell the court why the child should go home with him/her.

In cases where there is an allegation of abuse or neglect, the court must appoint a Guardian Ad Litem (“GAL”) to ensure the child’s best interests are met. A court may also appoint a Court Appointed Special Advocate (“CASA”). The GAL/CASA worker will investigate the facts and circumstances of the case. If the GAL or CASA worker prepares a report, all parties have a right to confront the GAL/CASA worker and to introduce contrary evidence.

Adjudicatory Hearing

The youth court judge looks at the facts of the case to determine if the evidence proves that the child has been abused or neglected. The State calls its witnesses and puts on its case. The parent or parent’s lawyer may call witnesses and may cross-examine any witness testifying against him. The child’s lawyer may also call any witness. Based on the evidence, the youth court judge then makes a determination as to whether the child is abused or neglected.

Dispositional Hearing

The youth court judge determines what is in the best interests of the child and orders an appropriate measure to insure that the child is not abused or neglected in the future. In making this determination, the youth court judge considers the following factors:

  1. The child’s physical and mental condition
  2. The child’s need of assistance
  3. The manner in which a parent, guardian, or custodian participated in, tolerated or condoned the abuse, neglect, or the abandonment
  4. The ability of the child’s parent, guardian, or custodian to provide proper supervision and care of the child

Review Hearing

Within a year after the dispositional hearing, the judge checks to see if the parent has followed the court’s orders

What Are The Youth Court Judge’s Options For A Child That Is Adjudicated An Abused Or Neglected Child?

The youth court judge may:

  1. Release the child without further action
  2. Place the child in the custody of his/her parents, a relative or any other person
  3. Order terms of treatment designed to help the child and the child’s parents or guardian
  4. Order youth court personnel, DHS, or child care agencies to help the child and the child’s parent, guardian, or custodian secure social or medical services to provide proper supervision and care of the child
  5. Give legal custody to any of the following but in no event to any training school: (1) DHS for appropriate placement; or (2) any private or public organization able to assume the education, care and maintenance of the child.

Does A Child Need To Be Present For All Phases Of An Abuse And Neglect Case?

No. The youth court judge has discretion to exclude a child from any phase of an abuse and neglect proceeding. If the testimony or evidence introduced will be difficult for a child to hear, anyone can ask the youth court judge to exclude the child from the courtroom.

GENERAL RIGHTS OF CHILDREN AND THEIR PARENTS

What Rights Does a Child Have If He Is Stopped By A Police Officer?

A child has to provide identifying information such as name, age, and address. The police officer may ask for an explanation of the child’s actions if the police officer has probable cause to believe that the child has done something wrong.

What Rights Does A Child Have If A Police Officer, Youth Court Prosecutor, Or A Probation Officer Questions A Child?

The officer must explain the child’s rights before questioning him. These rights, known as “Miranda Warnings” include:

  1. The right to remain silent;
  2. The right to speak with a lawyer once they are taken into police custody or placed under arrest; and
  3. The right to a court appointed lawyer if you can’t afford one.

Right to remain silent: Anything the child says to anyone (the police, a probation officer, the school principal, etc.) can and will be used against him or her. Even what a child tells his parent can be used against him. The only person that a child has an absolutely confidential relationship with is his lawyer. If a child tells his parent what he has done, the parent could be called to court by the prosecutor to be a witness against her child.

If arrested, the law says that the child does not have to explain what happened. The child does not have to speak to a police officer, probation officer or anyone else. The officer cannot use a child’s decision not to talk against him or her in court.

The officer may always ask a child questions, but the only information the child has to give is identifying information such as his or her name, age and address.

Even if a child starts talking to the police about what happened, the child can change his mind and ask for a lawyer at any time. Children should NEVER give confessions or sign a confession without talking to a lawyer first.

Right to an attorney: If a child has been arrested, he or she has a right to a lawyer. The child can – and should – speak to a lawyer before telling anyone what happened. The child should always ask to speak to a lawyer right away. The child or parent should not sign any paper that gives up the child’s right to a lawyer.

Right to a court appointed attorney if the child or parent can’t afford one: If the child or his parent does not have enough money to hire a private lawyer, the state will appoint a lawyer to represent the child for free.

What Rights Does A Child Have When Taken Into Custody?

A child must be immediately informed of: (1) the reason for his/her custody; (2) the time and place when the detention or shelter hearing will be held; (3) the child’s right to counsel; and (4) the rules and regulations of the place at which the child is being held.

If a child is being detained, there must be a hearing within 48 hours of the child being detained so that the judge can decide whether the child should stay in detention or be released.

A child has the right to immediately call their parent(s), guardian, custodian, lawyer, or youth court personnel. After that initial call, a child may use the phone at reasonable intervals.

A child may be visited by counsel and authorized youth court personnel at any time. A child may be visited by their parent(s), guardian, or custodian at any time during visiting hours at least 3 days per week unless the judge determines that it is not in the child’s best interests.

When a child is in custody, only a child’s lawyer, Guardian Ad Litem, and authorized youth court personnel (such as a youth court intake officer or a youth court prosecutor) may interview or interrogate a child without approval from the judge. Anyone else, including a police officer, must obtain approval from the youth court judge before speaking to a child in custody.

What Rights Do Parties Have With Regard To The Detention Or Shelter Hearing?

Reasonable oral or written notice of the time, place and purpose of the hearing must be given to the child, the child’s parent, guardian or custodian, the Guardian Ad Litem and to the child’s lawyer. If the child’s parent, guardian or custodian cannot be found, the youth court may hold the hearing in their absence.

All parties have the right to present evidence and to cross-examine witnesses produced by others.

What Rights Does A Child Have With Regard To The Adjudicatory Hearing?

  1. Right to counsel
  2. Right to remain silent
  3. Right to subpoena witnesses
  4. Right to cross-examine witnesses testifying against him/her
  5. Right to appeal

What Rights Does A Parent Have In An Abuse And Neglect Proceeding?

A parent has a right to a lawyer. An adult who wants an attorney to protect his or her interests must provide this for him/herself. If a parent decides that she wants an attorney, she must tell the youth court judge that she needs time to acquire legal assistance.

A parent has the right to represent him/herself. This means that a parent can call witnesses to speak on her behalf and present evidence for her case.

The youth court proceedings will not cause a parent to have a criminal record, but anything a parent says during an abuse and neglect hearing can be used against her in a criminal proceeding if criminal charges are filed.


DEFINITIONS

Abused Child

A child whose parent, guardian, custodian, or any other person responsible for his/her care or support, whether legally obligated to do so or not, has caused or allowed to be caused sexual abuse upon the child, sexual exploitation, emotional abuse, mental injury, non accidental physical injury or other maltreatment; physical discipline, including spanking, performed on a child by a parent, guardian, or custodian in a reasonable manner is not considered abuse.

Child In Need Of Supervision

A child who has reached his/her seventh birthday and is in need of treatment or rehabilitation because the child: (1) is habitually disobedient of reasonable and lawful commands of his parent, guardian, custodian, and is ungovernable; (2) while being required to attend school, willfully and habitually violates the rules, including habitual truancy; (3) runs away from home without good cause; or (4) has committed a delinquent act.

Custody

The physical possession of the child by any person

Delinquent Act

Any act, which if committed by an adult, is designated as a crime under state or federal law or a county ordinance

Delinquent Child

A child who has reached his/her tenth birthday and who has committed a delinquent act

Legal Custody

The legal status created by a court order which gives the legal custodian the responsibilities of physical possession of the child and the duty to provide him with food, shelter, education and reasonable medical care, all subject to residual rights and responsibilities of the parent or guardian of the child.

Neglected Child

A child whose parent, guardian, or any person responsible for his care of support, neglects or refuses to provide proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for the child’s well-being; provided, however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone in accordance with the practices of a recognized church or religious denomination by a duly accredited practitioner shall not, for that reason alone, be considered to be neglectful.

Probable Cause

The police officer has a strong reason to believe the child committed the crime/charge that he or she is accused of

WHAT TO DO IF YOUR CHILD IS ARRESTED

Getting a call about your child from the police or someone at a detention center can be a frightening experience. This section provides you with information that you and your child should know to better prepare yourself if this happens.

When Can A Police Officer Arrest A Child?

A police officer, sheriff, or probation officer may, without a warrant (an order from the court), take a child into temporary custody if the officer has “probable cause” to believe the child has committed a crime, the child is physically dangerous, the child is in danger, the child is in need of medical or emergency care, or that the child may be a runaway. “Probable cause” means that the police officer has a strong reason to believe the child committed the crime/charge that he or she is accused of.

What Rights Does Your Child Have If He Or She Is Arrested?

If your child is arrested for a delinquent act, the police officer must tell your child the reason why he or she is being arrested. The police officer must also tell your child that he has a right to speak with a lawyer. Most importantly, your child has the right to call you immediately. And, he should!

If your child is being detained (kept), there must be a hearing within 48 hours of your child being detained so that the judge can decide whether the child should stay in detention or be released. Your child must be told the time and place of this hearing. If your child is not told the time and place of the hearing, contact your local Chancery Judge immediately to find out when and where this hearing is happening.

Can A Police Officer Question Your Child If Your Child Is Being Detained?

No! If your child is being detained, a police officer can not question your child UNLESS the police officer has obtained approval from a judge. There are a few people who don’t need approval from a judge to question your child – your child’s lawyer, a guardian ad litem (a court appointed advocate for the child), a youth court intake officer and a youth court prosecutor (a lawyer for the State of Mississippi who does not represent your child). If a youth court intake officer or a youth court prosecutor want to question your child, your child’s lawyer must be present.

What Rights Does Your Child Have If A Police Officer, Youth Court Prosecutor, Or A Probation Officer Questions Your Child?

The officer must explain the child’s rights before questioning him. These rights, known as “Miranda Warnings” include:

  • The right to remain silent;
  • The right to speak with a lawyer once they are taken into police custody or placed under arrest; and
  • The right to a court appointed lawyer if you can’t afford one.
Right to remain silent

Anything the child says to anyone (the police, a probation officer, the school principal, etc.) can and will be used against him or her. Even what a child tells his parent can be used against him. If arrested, the law says that the child does not have to explain what happened. The child does not have to speak to a police officer, probation officer or anyone else. The officer cannot use a child’s decision not to talk against him or her in court.

The officer may always ask your child questions, but the only information the child has to give is identifying information such as his or her name, age and address. That’s it!

Even if your child starts talking to the police about what happened, the child can change his mind and ask for a lawyer at any time. Children should NEVER give confessions or sign a confession without talking to a lawyer first.

Right to an attorney

If your child has been arrested, he or she has a right to a lawyer. That means your child can – and should – speak to a lawyer before telling anyone what happened.

You and your child should always ask to speak to a lawyer right away. Do NOT sign any paper that gives up your child’s right to a lawyer.

Right to a court appointed attorney if you can’t afford one on your own

If you do not have enough money to hire a private lawyer, the state will appoint your child a lawyer for free. These lawyers are called “public defenders” and they are assigned to your child’s case by the youth court judge. If your child is arrested, you should call the public defender at the youth court and ask the public defender to talk with your child.

What Will The Police Officer Do With Your Child Once He Is Arrested?

The police officer has a few options regarding what to do with the child after questioning. The police officer may:

  1. Release the child and take no further action.
  2. Release the child but refer the child (and parents if child is arrested) to different services in the community that provide counseling, employment, temporary “shelter care” or other help.
  3. Release the child and send a request in for youth court action to the juvenile probation officer.
  4. Take the child directly into custody to the juvenile probation officer for booking into the juvenile justice detention center to be detained. The police should only detain (keep) a child if the child is accused of committing a serious crime, has a prior juvenile record, or the police can’t find a parent to take the child.

TIP: Even if you are angry with your child, if you can avoid having him/her in a detention center it is usually much better for your child in the long-run (once a child is kept in detention, the child is much more likely to stay locked up than to get some kind of community-based treatment).

If Your Child Is Stopped On The Street By The Police Does She Have To Say Anything?

  • Your child has to provide identifying information such as name, age, and address. The police officer may ask for an explanation of your child’s actions if the police officer has probable cause to believe that your child has done something wrong. But, your child should never give more information than identifying information and should always ask to speak with a lawyer.
  • Tell your child to be polite and tell the truth about his/her name, address, and parents, but not to talk about anything else.
  • Your child should ask for a lawyer and ask to call you.
  • NOTE: If your child is in danger and needs help, then your child should call the police and share all important information.

Should Your Child Talk If The Police Tells Her That They Will Go Easy If She Talks?

  • NO!!! The police may tell your child that they will go easy on her if she talks. The police may tell your child that someone else has pointed the finger at her and unless she talks, it will be worse. It makes no difference. YOUR CHILD SHOULD NOT TALK!
  • Your child should ask for a lawyer, and ask the officer to call you.

Should Your Child Talk To The Police If He Has Not Done Anything Wrong?

  • No!!! Your child may have done nothing wrong, and may be completely innocent. This does not matter.
  • Your child should not try to talk his way out of trouble.
  • Even if your child has not done anything wrong, what he says to the police may be misinterpreted or misused.
  • It will not help your child to cooperate with the police without first talking with a lawyer or his parents!

Should Your Child Talk To The Police When They Demand A Confession?

  • NO!!! All your child needs to say is: “I have the right to remain silent and to talk with a lawyer. I will not talk with you until I talk with a lawyer.”
  • Tell your child to show respect, but to keep quiet and continue to ask to speak with a lawyer.
  • Before your child confesses to anything, your child’s lawyer, his or her parents, or a guardian ad litem must be present.

Is A Police Officer At School A Police Officer?

  • Yes! School Police Officers are not school employees. They still work for the police. Your child has the same rights when approached by a School Police Officer as he does when approached by any other police officer.
  • If your child is questioned by a School Police Officer, he or she should say: “I have the right to talk with a lawyer. I will not talk to you until I talk with a lawyer.”
  • If the Principal calls you and asks you to make your child talk, tell the Principal and your child that you want your child to talk with a lawyer before he or she talks with the Principal.
  • School officials (like a Principal – NOT a School Officer) may question children in their school without informing them of their constitutional rights.

General Tips For Dealing With The Police:

  1. Never resist arrest – no matter how wrong the arrest may seem. Resisting lawful arrest is illegal and is a separate offense for which a child may be found delinquent.
  2. You and your child should always be polite and respectful toward the police.
  3. If your child is arrested and taken to the police station for questioning, your child should wait until your child’s lawyer is present before answering any questions other than identifying information (like name, age, and address).
  4. If an arrest is made and charges are filed against your child, you should ask to speak with a lawyer – even if your child denies participating in the alleged crime.
  5. Do not tell your child to “just tell the truth” without talking to a lawyer first – even if the police promise everything will be okay – because you won’t know what the consequences could be.
  6. If the police show up at your home and want to search your house or your child’s bedroom, they may not do so without a warrant OR your permission. It is generally NOT a good idea to allow police to search your home without a warrant.

If Your Child Is Arrested, What Can You Do To Help?

Try to see your child immediately:

If you hear that your child is arrested, you should try to see him right away. You should find out where he is being held and ask to talk with him. If the police will not let you see your child, hand deliver them a letter of protest, and keep a copy for yourself. You can then give a copy of the letter to your child’s lawyer.

Remind your child that he should not talk to the police:

If your child has been arrested, you should tell him not to say anything (aside from identifying information) to the police or the prosecutors until he has spoken with his lawyer.

Don’t ask your child to confess to you:

The only person that your child can have an absolutely confidential conversation with is his lawyer. If your child tells you what he has done, you could be called to court by the prosecutor to be a witness against your child! If you do not want this to happen, do not ask your child to confess.

Make sure your child gets a lawyer:

After your child is arrested, she will probably go to court. At that time, the court will ask if a lawyer should be appointed to represent your child. Your child has the right to a lawyer, even if you cannot afford one. So, when the court asks if you want one, make sure you say, “Yes!”

Be careful what you ask for:

Many parents are frustrated by their child’s bad behavior and are relieved when he or she gets arrested, feeling that finally their child will get help. Some parents even ask the court to lock their child up. These same parents are often sad and troubled to see that their child just gets punished and does not get any services. Before you ask the court to send your child away, talk with people about the youth court system and about the options. Otherwise, you may get something very different than what you were hoping for.

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