Thursday, January 7, 2010

Child Custody in Mississippi

Child custody is the most litigious aspect of family law proceedings in Mississippi. Chancellors in Mississippi have authority to award custody of minor children in a variety of actions including initial divorce cases and in custody actions between unmarried parents and third parties. In addition, a chancellor awarding custody in one of these cases will have continuing jurisdiction to modify or enforce its order (through contempt proceedings).

A. Types of Child Custody

In Mississippi, there are two types of child custody: (1) physical custody, and (2) legal custody. Physical custody is the period of time in which a child resides with, or is under the care of, one of the parents. On the other hand, legal custody is the “intellectual” aspect of custody and refers to the right to make decisions relating to the health, education and welfare of your child.

B. Ways Custody May be Split.

There are a variety of ways that child custody may be awarded in Mississippi. Both physical and legal custody may be awarded solely to one parent or parents may be made joint physical and legal custodians. Joint legal custody means that parents share decision-making rights with regard to the child. When joint physical custody is awarded, a child will spend a significant amount of time with both parents. A court may award joint physical and legal custody, joint legal custody with sole physical custody in one parent, joint physical custody with sole legal custody in one parent or physical and legal custody to either parent. Where a home has more than one child, a court may also order split custody, though there is a strong preference for keeping siblings in the same home in Mississippi.

C. Who Wins Custody

In Mississippi, it is now presumed that parents are equally entitled to custody of their children. In addition to the presumption of equality, other presumptions also directly influence custody actions in Mississippi. These include the presumption in favor of a natural parent, the presumption against custody to a violent parent, and the presumption in favor of joint custody upon request by both parents. It is important to remember that the polestar consideration in custody cases is the “best interests and welfare of the child”. Chancellors in Mississippi always determine custody based on this “best interests” approach or test.

So how exactly does a court determine what is in the best interests of your child when it comes to custody? This is a question that is fair to ask but often difficult answer. In Albright v. Albright, the Mississippi Supreme Court adopted twelve factors to use in weighing what is in the best interests of a child when determining which parent should have custody. These factors are as follows:

[1] Age, health and sex of child;
[2] Continuing care of child prior to (and after) separation;
[3] Parenting skills of each parent;
[4] Capacity to provide child care and employment responsibilities of parents;
[5] Physical and mental health and age of parents;
[6] Alcohol and drug use;
[7] Emotional ties of the parent and child;
[8] Moral fitness;
[9] Home, school and community record of child;
[10] Preference of a child twelve or older;
[11] Stability of the home environment and employment of each parent; and,
[12] Other relevant factors that should be considered in best interests of child.

In any case where custody of your child is at stake, representation by an experienced family law attorney is critical to protect the best interests of your child and ensure that your fundamental right to make decisions that will guide your child’s life is protected. A critical point to remember is that once custody of a child is lost, it is often very hard to recover.


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