Posted on: Jul 18, 2019

Do You Have Questions About Child Custody in Mississippi? We Have Answers

Mississippi child custody laws

Mississippi, like other states, has created a body of law to determine child custody and visitation.

If you are divorcing, or if you have a child with someone you are not married to, you will need to consider how Mississippi child custody laws affect your situation.

Although parents can reach an agreement between themselves on custody, many parents cannot agree. In this situation, a Mississippi judge will need to determine custody based on the state’s laws. Some of the most important laws are summarized below.

Although parents can reach an agreement between themselves on custody, many parents cannot agree. In this situation, a Mississippi judge will need to determine custody based on the state’s laws. Some of the most important laws are summarized below.

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If you are trying to obtain custody of your child, you shouldn’t face it alone. We want to hear from you, simply fill out the form below and we will contact you to set up a consultation. We just need some brief information:

Legal and Physical Custody

Mississippi Code 93-5-24 identifies two types of custody that parents might be award:

  • Legal custody: this gives the parent the ability to make decisions about the child’s medical care, education, religious upbringing, and other important issues.
  • Physical custody: the child will live with the parent for most of the time and be under their physical control.

As the Mississippi law makes clear, parents can receive either type of custody, or both. For example:

  • Both parents can receive joint legal and physical custody.
  • Both parents might receive joint legal custody, but one parent will have physical custody.
  • Both parents might receive joint physical custody, but one parent will have legal custody.
  • One parent could be given both legal and physical custody.

Due to child custody laws in MS, judges have options. Although the state encourages both parents to have custody, it is up to the judge to award custody based on an analysis of the child’s best interests.

The State Prefers Joint Custody

If the parents agree to joint custody, Mississippi law states that the judge should presume that it is in the child’s best interests. Joint custody means both parents will share legal custody, and the child will spend substantial time with each parent (even if physical custody is not divided 50/50). If you can reach an agreement for joint custody with the other parent, then there is a good chance the judge will approve the agreement.

Custody Determinations: Best Interests of the Child

Just about everything involving children is decided based on the child’s “best interests.” There is no clear definition of the child’s best interests. However, the Mississippi Supreme Court in a 1983 case, Albright v. Albright, identified a dozen factors a judge should consider, including:

  • The child’s age;
  • Which parent has cared for the child prior to separation;
  • Each parent’s emotional ties to the child;
  • Each parent’s willingness to provide primary care for the child;
  • Each parent’s parenting skills;
  • Parental employment responsibilities;
  • Each parent’s physical and mental health, as well as their age;
  • A parent’s moral fitness;
  • The stability of each parent; and
  • The child’s preference, if they are old enough to express one.

No one factor determines the judge’s decision. Instead, the judge considers all factors before reaching a decision about which parent should be awarded custody.

Filing for Custody in MS

Most cases involving child custody in Mississippi are part of divorce proceedings. However, there are instances involving unmarried couples that may require a separate child custody case. You will need to file a petition for custody in the proper court, usually in the county where the child resides or is physically present. Once the petition is filed, you will need to serve your child’s other parent.

Resolving Child Custody in Mississippi Through Mediation vs in Court

Before you see a judge in Mississippi about custody, you will be required to see a mediator. Instead of going through a formal court hearing where the judge issues an order, you can work toward an amicable agreement with your ex in mediation. The mediator is an impartial third party who specializes in these types of legal disputes.

A skilled mediator can assist you to resolve all outstanding issues in your custody dispute. They can help with everything from living arrangements to scheduling kids’ activities. Making an attempt to reach an agreement on your own is better for your children and your co-parenting relationship.

In some cases, you may not resolve all your issues through mediation. However, resolving some issues through mediation is helpful for when you do go before the judge. When you work out some custody aspects, it shows the court your willingness to put your children first. It can also save you time and money by limiting the issues that need to be addressed in a trial.    

Modifying a Mississippi Custody Order

Original custody orders can be modified in some cases, provided the parent seeking a modification can show a material change in circumstances that now adversely affects their children’s best interests. The parent who filed the petition has the burden of proof.

Family court judges won’t grant modifications unless the filing party can show:

  • A material change in the custodial home;
  • The change adversely affects your child’s welfare under the current arrangement; and
  • The modification will be in the best interest of your child.

When a parent moves a few miles away, it’s unlikely to be deemed a material change. However, if one parent wants to move further than 100 miles away, that could be a material change.

If you plan to file a motion to amend or alter your existing custody order or your ex wants to move to another state with your child, you should retain an experienced Mississippi child custody lawyer.

When Does a Child Need to Appear in Court?

In most situations, a child under the age of 12 will not be required to appear in court. If there is a dangerous situation that is affecting custody, then they may need to testify in court. A child who is 12 or older can usually sign a parental preference affidavit. No court testimony would be required in this situation.

A child’s preference does not supersede the court’s decision. In fact, a child’s wishes on where they prefer to live is only one factor among many for the court to weigh in its custody determination. In situations where the judge feels an alternative arrangement is in the child’s best interests, they will override the child’s preference. If this occurs, the judge will go on record and explain why they made this custody decision.

Child Custody when Both Parents Have Abandoned the Child

Unfortunately, many children do not have even one responsible parent they can rely on. Instead, the child is abandoned by both parents, or both parents are wholly unfit to take care of the child because of substance abuse, mental illness, or another reason. In these situations, Mississippi Code 93-5-24 states that the child:

  • Will be placed in the home the child has been living in, provided it is stable and healthy, or
  • Will be placed with someone the court finds is suitable to provide adequate and proper care.

Frequently, grandparents or adult siblings want to obtain custody of young children who have been abandoned. This is certainly a possibility, and they should meet with a Mississippi child custody attorney to discuss how to proceed.

Child Custody and Family Violence

Abuse allegations are fairly common in divorce proceedings. There is an easy reason to understand why. According to Mississippi’s child custody laws, there is a presumption that it is not in the child’s best interests for a parent who has committed family violence to have either legal or physical custody.

This presumption is rebuttable—meaning, you can show that you have rehabilitated yourself. For example, you might have completed a drug or alcohol treatment program or a program that addresses battering a spouse. The judge will also consider whether you have taken a parenting class. If you can show that you have turned over a new leaf, then the judge will consider granting you custody.

In other situations, a parent with a history of family violence might be awarded custody if the other parent has severe mental illness, drug addiction, or is violent themselves. However, you must always take any allegation of family violence seriously. Ask a Mississippi family law attorney to review your criminal history so that you can address any problems before appearing in court.

Grandparent Visitation

Many grandparents seek to maintain contact with their grandchildren. Mississippi custody laws allow grandparents to seek visitation. However, there are limitations. Mississippi Code 93-16-3 lays out when you may seek visitation with a grandchild:

  • If your child dies (i.e., the grandchild’s parent);
  • If your child was not granted child custody; and
  • If a judge terminated your child’s parental rights.

In these situations, it is difficult for grandparents to see their grandchildren, so the court might step in and grant you visitation rights. You will need to file your request in the correct court, so meet with a Mississippi child custody lawyer to discuss the next steps.

If one of the above situations does not apply, grandparents can still seek visitation if they can show:

  • You have a viable relationship with your grandchild and the child’s parent or guardian has unreasonably denied you visitation.
  • Visitation would be in the child’s best interests.

The best interests analysis will rely on many of the same factors listed above in the discussion about child custody.

Contact a Mississippi Child Custody Attorney with Questions

Conflicts around child custody and visitation are some of the most emotional that we see here at the Harris Law Firm. Our team of attorneys has helped many parents and grandparents maintain contact with their loved ones, and we are anxious to meet with you.

To find out more about whether you have a valid claim to custody or visitation, please schedule a consultation with one of our lawyers. You can reach us by calling 662-262-8430. Mississippi child custody laws can become complex and confusing. Don’t hesitate to contact one of our child custody attorneys today.

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