Family Law

How do Judges Decide Child Custody in Mississippi

By Amy Castillo, J.D., University of Minnesota School of Law
Learn about the different kinds of custody and visitation, and how Mississippi judges decide custody cases.

Child Custody and Visitation in Mississippi

If you're going through a divorce with children, you’ll want to make legal decisions that help your children thrive. To do that, you have to start from the beginning and educate yourself about some core concepts in Mississippi family law.

What’s the Difference Between Legal and Physical Custody?

When parents can’t agree about custody and visitation, a court will have to step in and make the decision for them. In Mississippi, family law judges must consider several types of custody separately, as follows:

  • Physical custody means those periods of time when a child lives with and is cared for by one parent.
  • Legal custody means the decision-making rights, the responsibilities and the authority relating to the health, education, and welfare of a child.
  • Joint physical custody means that each of the parents have significant periods of physical custody that they share in such a way that the child has frequent and continuing contact with both parents.
  • Joint legal custody means that the parents share decision-making rights, responsibility, and authority relating to the child’s health, education, and welfare.
    • Sole custody means that one parent has full physical or legal custody, or both.
    • Joint custody means that the parents share both joint legal and joint physical custody.

When parents share joint legal custody, they’re obligated to share information about the child’s health, education, and welfare with each other. They also have to make important decisions together. They have to be forthcoming with each other and willing to cooperate.

If there’s a proven history of violence in the family, the judge will make a legal assumption that the perpetrating parent should not receive joint legal custody, joint physical custody, or sole custody.

Per Mississippi law, judges can award any of the following combinations of custody:

  • Joint physical and joint legal custody to both parents
  • Joint physical custody to both parents and sole legal custody with one parent
  • Joint legal custody to both parents and sole physical custody to one parent, or
  • Sole physical and sole legal custody to one parent.

What Is Visitation?

Generally speaking, visitation is a court-ordered, scheduled time when a non-custodial parent is able to be with the kids physically (for example, summer breaks or weekend visits), call them on the telephone, or speak through real-time video call apps like Skype or FaceTime. Both parents are governed by the visitation schedule the judge imposes.

Unless the parents request something different, the judge will usually divide up holidays on an alternating year-to-year basis to make sure that children are able to spend special holiday time with each parent.

If a parent who is entitled to visitation abuses drugs or alcohol or has a history of abuse or neglect, the court may order supervised visitation with a family member or someone else who can make sure the child is safe when spending time with the parent.

It’s rare for the court to suspend visitation completely, and that only happens in cases where visitation would pose an immediate and major threat to the child.

Never try to prevent your ex from exercising court-ordered visitation. If you do, you can be subject to sanctions (judicial punishment). However, if you believe your child would be immediately or physically endangered by visiting with the other parent, you should immediately contact a family attorney for advice and contact your Clerk of Court or local law library to find out what legal procedures you’ll have to set in motion to protect your child.

Can Parents Agree to Their Own Custody and Visitation Arrangements?

The court will always encourage parents to resolve their custody and visitation disputes on their own. In fact, it’s much better to reach a compromise on custody if you can. Once the courts are involved, your child’s fate will be decided by a judge who’s educated and dedicated to the law, but is still a stranger to you and your family. The judge doesn’t know you personally and you might be unhappy with the decision. On the other hand, if you and your ex can reach an agreement, you can make your own choices and retain control over your life.

You should consult with an experienced family law attorney when you have to negotiate child custody, but if you’re self-represented, the Mississippi Bar Association maintains a list of pro bono resources that can help you.

How Do Judges Decide Custody Issues?

The most important consideration for family law judges in Mississippi is the arrangement that will be in the child's best interests. To that end the judge must look at all of the following factors:

  • the child’s age, health, and sex;
  • whether one parent provided continuity of child care;
  • which parent has the best parenting skills;
  • which parent is more able and willing to provide child care;
  • the employment and other responsibilities of each parent;
  • each parent’s age and physical and mental health;
  • the emotional ties that the child shares with each parent;
  • the moral fitness of each parent;
  • the child’s home, school, and community record;
  • the child’s preference, but only if the child is old enough to offer a rational opinion;
  • the stability of each parent’s home environment and employment; and
  • any other information not present in this list that is nonetheless relevant to the parent-child relationship.

The judge will write a detailed order with findings about each of the factors based on the evidence presented at trial. The order will explain how each factor led to the judge’s conclusions and to the allocation of custody and visitation.

One key custody case sheds some light on how Mississippi courts view custody and visitation. A couple married, and the wife gave birth to their two sons . The husband was on active duty in the United States Armed Forces, but suffered a disabling back injury and began to receive disability benefits. The children also received monthly government disability payments through their father. The spouses bought a house in Columbus, Mississippi, and the wife’s mother moved in with them to act as a caretaker for the children while her daughter, the wife, went to work in Iraq to pay the couple’s credit card debts. After approximately a year, the wife returned to her home and family, and her mother continued to live with them. Some time later, the parties divorced.

The judge who heard the case gave custody to the wife. After hearing all the evidence, the court noted that the wife’s mother—the children’s maternal grandmother—provided most of their care while the wife was working in Iraq, including all the cooking and housework, and continued to help the wife thereafter. In fact, the wife had specifically asked the grandmother to move in because the husband was substantially disabled and the wife wasn’t able to care for two young sons, a household, and a disabled husband on her own.

The husband attempted to argue that he wasn’t as badly disabled as the wife claimed, and that he was more involved in the children’s lives and provided regular care. However, the judge looked at all of the husband’s disability applications and paperwork, noted that the husband always represented himself in legal documents as being severely disabled, and concluded that he should not be able to call himself severely disabled for purposes of getting assistance but only minimally disabled for purposes of asking for custody. Accordingly, the court gave custody to the wife.

Modification of Custody and Visitation

Even though the court will give you a “final” custody and visitation order, you may find that your circumstances later change in such a way that the original order no longer works for you and your children. If that happens, you’ll have to file a motion to modify the existing order. Unless it’s an emergency, the judge will normally make you wait a while between the issuance of the final order and filing a motion for a change of custody.

The parent who asks for a modification has to prove that there has been a change in circumstances since the final order was issued. The change has to be substantial. If that’s proven, the court will then decide whether modifying custody or visitation is in the child’s best interests.

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