If you’re getting a divorce in Mississippi and have minor children, you’ll have to make several decisions regarding custody before your case is finalized. Here’s what you need to know.
- Types of Child Custody in Mississippi
- How is Child Custody Determined in Mississippi?
- What are the Factors a Mississippi Judge Uses to Decide Custody?
- What is a Parenting Plan?
- Modifying a Mississippi Custody Order
- Mississippi Child Custody FAQs
Types of Child Custody in Mississippi
The State of Mississippi Code identifies two types of custody that parents might be awarded:
Legal custody allows a parent to make decisions about the child’s medical care, education, religious upbringing, and other important issues.
Physical custody determines who the child will live for most of the time and be under their physical control.
There are several possible scenarios under legal and physical custody. For example:
- Joint physical custody, where each parent has regular and continuing contact with the child and a significant period when the child is in their care.
- Joint legal custody, where both parents share decision-making rights and responsibilities regarding the child’s health, education, and welfare. A joint legal custody order also requires you and the other parent to consult before making decisions regarding the child’s health, education, and welfare.
- In joint physical custody and legal custody, parents share the child’s care and decision-making rights.
- Sole physical custody, where the child lives most of the time with one parent but can have visitation with the other.
- Sole legal custody where only one parent has decision-making rights and responsibilities regarding the child’s health, education, and welfare.
In most cases, judges prefer to award joint legal custody because it gives both parents an active role in the child’s upbringing. Even if a court grants one parent sole legal custody with visitation rights to the other, both parents will continue to have access to information about their child.
Read More: Divorce Laws in Mississippi
How is Child Custody Determined in Mississippi?
All custody decisions in Mississippi are made in a Chancery Court using the “best interests of the child” standard.
Courts prefer that parents reach amicable decisions on their own, but when that does not happen, a judge will step in, weigh evidence, use a series of statutory factors, and decide the case instead of the parents.
Even when parents agree, they must present a plan to the court for approval. Judges appreciate parental cooperation and often sign off on a reasonable and fair custody arrangement.
How is child custody handled when parents are not married?
The mother has automatic sole custody if an unmarried couple in Mississippi has a child. The father can claim his rights by establishing paternity. To do this, he can sign an Acknowledgment of Paternity (with the mother co-signing) or file a petition in court if the mother denies the claim. Establishing paternity can be confirmed through DNA testing when the court is involved.
Do courts favor the mother over the father?
No. All decisions are gender-neutral, although a judge may invoke a “tender years” preference and lean toward a mother when children are very young.
What is the role of a Guardian ad Litem or custody evaluator?
Mississippi custody laws give a judge the power to appoint a Guardian ad Litem if there is an abuse or neglect allegation. The GAL only represents the rights and interests of the child in the case and advocates for their best interests. A GAL can interview parents and family members, dig for evidence, and has a large say in a child’s disposition based on a report that is ultimately provided to the court.
Read More: Counseling Children Through Divorce
Is mediation an option?
Yes, and in many cases, mediation is encouraged. In other cases, it is mandatory. A skilled mediator is an impartial third party specializing in these legal disputes.
Courts want parents to find ways to resolve their differences in the most amicable and productive ways. Alternative dispute resolution is a preferred way to do this. Mediation can resolve a child’s daily schedule, parenting time and visitation plans, and other vital issues.
Going through mediation also tells the court that you and your spouse are willing to work together for your child’s best interests. It can also save you time and money by limiting the issues that must be addressed in a trial.
What happens if a parent committed violence?
Suppose the judge finds that a parent has a history of committing family violence. In that case, there is a “rebuttable presumption” against granting custody, meaning the judge should assume that it is not in the child’s best interest to have sole or joint legal and physical custody.
However, the abusive parent can present evidence to try to change the judge’s mind.
A judge may also allow supervised visitation if they believe you and your child can be protected from family violence through restrictions in the order.
Specifically, parental rights can be terminated and sole custody granted if the parent:
- is not meeting the needs of the child, including food, clothing, shelter, or medical care
- is not communicating or visiting the child
- has been abusive or neglectful, and it has caused the child’s dislike towards that parent
- is suffering from alcoholism or other drug addiction and has not been able to complete an alcohol or drug treatment successfully
- has been abusive towards your child or another child, and having future contact with that parent is undesirable
- has been convicted of any of the following offenses against any child:
- rape
- sexual battery
- touching a child for lustful purposes
- the exploitation of a child
- felonious abuse or battery of a child
- carnal knowledge of a step or adopted child or a child of a cohabitating partner; or
- human trafficking of a child
- has been convicted of:
- murder or involuntary manslaughter of their child
- aiding, abetting, attempting, soliciting, or conspiring to commit murder or voluntary manslaughter of their child
- felony assault that resulted in “serious bodily injury” to their child
Read More: 50 Ways to Prepare for Divorce
What are the Factors a Mississippi Judge Uses to Decide Child Custody?
Child custody may be determined based on several specific factors in Mississippi. These are set forth primarily by the case of Albright v. Albright in 1983. As a result, they are often referred to as the Albright Factors. They include:
- The age, health, and gender of the child.
- The home, community, and school records of the child.
- The parenting skills of each parent.
- The willingness of each parent to provide primary care for the child.
- The employment of each parent and the responsibilities this employment carries.
- The age, physical health, and mental health of each parent.
- The moral fitness of each parent.
- The stability of the home environment of each parent.
- The emotional ties of the child to each parent.
- The child’s preference, if the child is old enough to express preference under the law
- Any other relevant factors to help reach the best possible custody arrangement
Read More: How to File for Divorce in Mississippi
What is a Parenting Plan?
Parenting plans are detailed instructions and guidelines that outline each parent’s rights and responsibilities as they relate to the couple’s minor children.
You can write up your own parenting plan in conjunction with the other parent or work with an attorney or legal professional. If you can’t create a parenting plan using these resources, the court will create a binding legal parenting plan on your behalf.
When creating your parenting plan, there are key components to include so that your plan will have everything it needs to serve your child’s needs. These elements can consist of:
- A declaration stating the type of custody each parent shall have.
- A child visitation schedule or parenting plan stating when the child will reside with or spend time with each parent. The child visitation schedule should include a holiday schedule and allow the child extended time with each parent for vacations.
- A statement that delegates the decision-making authority for major, specific decisions pertaining to the child. (i.e., religious upbringing, education, medical decisions, etc.).
- A method for dispute resolution in case the parents fail to agree in the future.
- Any relevant information the parents wish to include, such as how optional expenses, like orthodontics or extracurricular activities, shall be paid for
- Details of transporting the child between exchanges
- Whether or not the disciplinary actions of a parent will carry over at the other parent’s home.
Modifying a Mississippi Custody Order
Mississippi child custody laws use a three-step test that governs a request to modify a custody order:
- The requesting party must establish by a preponderance of the evidence that since the original custody order, there has been a material change in circumstances.
- The change must adversely affect the welfare of the child.
- If an adverse change is shown, the moving party must also show that the child’s best interest requires the change of custody.
To change a child custody or visitation order, you must file a petition to modify the order at the courthouse that originally issued it.
Modification can also apply to parents who are trying to relocate. Relocation, whether to a new state or several hundred miles away, can be considered a material change in circumstances and would warrant a modification if the non-custodial parent does not fully agree with the move.
Mississippi Child Custody FAQs
Do grandparents or other third parties have custody rights in Mississippi?
Grandparents can petition the court for visitation of a child if:
- custody is awarded to only one of the parents;
- parental rights are terminated for one of the parents;
- one of the parents died; or
- the grandparent has established a relationship with the child, and both of the following are true:
- one of the parents or their custodian is unreasonably denying visitation; and
- The judge believes that visitation would be in the child’s best interest.
Do a child’s wishes have an impact on custody arrangements in Mississippi?
Mississippi child custody laws mandate that a child age 12 or older have the right to state a parental custody preference that will be considered part of the Albright factors. However, the Chancery Court will still have the final say regarding child custody decisions.
Does one parent still need to pay child support if both parents share custody?
In most cases, yes. Child support payments are considered separately in Mississippi and are determined using state child support guidelines.
Read More: How to Find Hidden Assets in a Divorce
Can a parent refuse to allow visitation if the other parent does not pay child support?
No, you need to continue to honor your obligations under your judgment even if the other side is not honoring their obligations. Refusing visitation to the other parent could prevent you from being able to obtain child support in a contempt action under the “unclean hands” doctrine. It also could result in you being found in contempt for refusing visitation to the other parent.
What are the laws about moving with a child in or out of state in Mississippi?
If you want to permanently move out of Mississippi or move in the state but to a distant location, you will need to work out an agreement with the other parent or petition the court to approve the move.
In all cases, the court will consider the impact of the proposed move on the child and whether it is in their best interests.
What happens if a parent takes children out of state without permission?
Suppose a noncustodial parent or another relative takes a child out of state intending to violate an existing custody order. In that case, they might be charged with what’s commonly known as “custodial interference.” This only applies if a child is younger than 14 years of age.
One of the remedies is to call local law enforcement to report the situation, which could be considered a form of kidnapping in some instances.
It’s probably best to consult an experienced family law attorney who can help you sort through your legal options in a situation like this.
