Mississippi Child Custody Questions

Mississippi child custody attorneys provide answers to frequently asked questions with regards to Mississippi child custody and Mississippi custody laws.

How is Mississippi child custody decided? Who will get custody of our child?

Ultimately that decision will be left up to the Chancery Court unless you and your spouse reach an agreement. For determining custody, the court will use the Albright factors to determine what is in “the best interest of the child.” The factors are:

1.  the child’s age, health, and sex;
2.  which parent had the continuity of care before the separation;
3.  which parent has the best parenting skills and the willingness and capacity to provide primary child care;
4.  the parents’ employment and the responsibilities of that employment;
5.  the parents’ age and their physical and mental health;
6.  the emotional ties of parent and child;
7.  the parents’ moral fitness;
8.  the child’s home, school, and community record;
9.  the preference of the child, if the child is age 12 or older;
10.  the stability of home environment and the parents’ employment; and
11.  any other factors relevant to the parent-child relationship.

What is joint custody? What is sole custody?

First of all, there are two types of custody in Mississippi, physical custody and legal custody.

Physical custody is the period of time during which a child resides with or is under the care of one of the parents. Legal custody is the decision-making rights related to a child’s health, education, and welfare.

Joint physical custody means that a child spends significant periods of physical custody with each parent. When joint legal custody is awarded, parents share decision-making rights with regard to the child.

Sole physical custody means that one parent has the child for the majority of the time and the other parent has visitation.

Sole legal custody means that one parent makes the decision-making rights with regards to a child’s health, education, and welfare.

If both parents share custody, does anyone pay child support?

Almost always, someone will have to pay child support. Section 43-19-101 of the MS. Ann. Code of 1972 spells out the child support guidelines. Even in joint physical custody situations, someone is ordered to pay child support most of the time.

Can a parent refuse to allow visitation if child support is not paid?

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.

When can my child decide which parent to live with?

A child never has an automatic right to choose which parent to live with; however, a child that is age 12 or older will have the right to state a preference that will be considered as part of the Albright “best interest of the child” test.

If you have an existing judgment, then you have to be able to show a material change of circumstances in the custodial parent’s home adversely affecting the child in order to modify custody. A child turning 12 years old does not automatically constitute a material change of circumstances by itself.

Do grandparents have custody and visitation rights?

Section 93-16-3 of the MS. Ann. Code of 1972 addresses grandparent visitation rights.

Under subsection (1): Whenever a court of this state enters a decree or order awarding custody of a minor child to one of the parents of the child or terminating the parental rights of one of the parents of a minor child, or whenever one of the parents of a minor child dies, either parent of the child’s parents may petition the court, in which the decree or order was rendered or, in the case of the death of  a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.

Any grandparent who is not authorized to petition for visitation rights under the paragraph above may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds: (a) That the grandparent of the child has established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and (b) that visitation rights of the grandparent with the child would be in the best interests of the child.

What can I expect from temporary orders?

It depends on the judge. Sometimes there will be a full hearing. Other times, each party only gets 15 minutes each.

You need to be familiar with how your judge does things and be able to make your most important points in a short timeframe. A temporary custody order will remain in effect until it is modified, vacated, or a final judgment of divorce is entered.

When will child custody be decided?

Child custody will be decided at the time a divorce is entered. Many times, the court will enter a temporary order until a final judgment can be reached.

In Mississippi, complaints for divorce on the ground of irreconcilable differences must be on file for 60 days before they can be heard. There is no time limit on a fault ground divorce, but the timing will vary depending on the county, in which your case is litigated.

When can I modify custody?

A three-step test governs a request to modify custody.

First, the moving party must establish by a preponderance of the evidence that, since entry of the judgment sought to be modified, there was a material change in circumstances. The material change in circumstances must occur in the custodial home.

Second, the change must adversely affect the welfare of the child.

Third, if an adverse change is shown, the moving party must also show that the best interest of the child requires the change of custody.

What if we cannot agree on a custody arrangement?

Then a trial will be had in the chancery court and the chancellor will decide.

What is an ex parte order?

An order that is entered regarding two parties with only one party being present. The most common way an ex parte order is entered is when only one attorney goes to present an agreed judgment of divorce; however, an ex parte order can be entered under more strenuous circumstances, like when someone needs an emergency protective order.

How can I increase my chances at getting a larger custody agreement?

Review the Albright factors and put yourself in the best position that you can according to each factor.

What is visitation?

Visitation is the time that the non-custodial parent gets with the child.

Can a judge order supervised visitation or no visitation?

Yes, but this is not ordinarily done. There has to be a good reason for doing so.

Do courts favor the mother over the father?

No, they are not supposed to do that; however, if the child is really young, it sometimes happens.

What should I know before a custody trial?

Be aware of the Albright factors and always keep the best interest of the child in mind when making decisions.

Can I collect my own evidence to use if my custody case goes to court?

You may, depending on the circumstances. Some things will have to be authenticated to be admissible at trial. If you are looking to prove adultery, you may want to use a private investigator so that you do not give away your hand and so that you do not create a dangerous environment.

Do I need to use a Guardian ad Litem/custody evaluator?

In Mississippi, a Guardian ad Litem shall be appointed if there is an allegation of “abuse” or “neglect.” The court has discretion to appoint a GAL to assist with custody absent allegations of “abuse” or “neglect.” The hiring of a GAL will make your case more expensive.

Will my child need to appear in court?

Generally, a child younger than the age of 12 will not need to appear in court unless there is a dangerous situation that they are needed to testify about.

If a child is age 12 or older they can usually sign a parental preference affidavit, and testimony is not necessary. Testifying in court can have a very negative impact on a child and should be avoided when possible.

What is the Parental Kidnapping Prevention Act?

A Federal law that was created in an attempt to reduce interstate conflicts over jurisdiction and discourage “forum shopping” by parents who are dissatisfied with an existing or pending custody order made pursuant to the laws of their child’s “home state.”

What if my wife tries to move the kids out of state?

You should have her served with a summons and complaint for divorce within six months of her moving, so that where she moves does not become the home state of the child. If you do not have her served within six months, then she may serve you and you could have to litigate in the foreign state that she moves.

Can a parent change the child’s last name without the other parent’s permission?

No.

If I have custody, will I receive child support?

The answer to this is almost always yes. There are limited circumstances where the answer is no, but almost always yes.