Q&A: Child CUSTODY IN MISSISSIPPI

If you are starting custody discussions with your child’s other parent, it is likely that you have many questions. You may have questions concerning the different types of custody and the court process. Even with the multiple online resources available as to child custody, the answers do not necessarily apply to your unique situation.

Even if parents were not right for one another it does not mean that they must stop doing what is right for their child(ren). The relationship with the other parent continues through the child(ren). A child custody arrangement determines what the partnership between parents after the parents have determined they are no longer right for one another. The courts in Mississippi want to be certain that the child custody arrangement is what is in the best interest of the minor child, and that all the legal requirements are met whether the parents are in agreement as the child custody matter or it is contested. 

Parents should strive not to adversely affect their child(ren) with contentious legal battles. Ultimately parents should work to obtain fair and beneficial custody and visitation orders that both sides can accept. If parents can come to an amicable agreement, which meets the legal requirements, it is often a cost-efficient solution given that it avoids a lengthy court process and trial.  

While plans are discussed during the child custody agreement process, it is important to create a plan for which both parents can commit. The child custody plan needs to take into consideration the here and now, and the future. By involving an attorney in the child custody plan, the attorney can help with the formation of the plan and the drafting of the proper language of the agreement to limit future litigation between the parties. Additionally, if the custody plan does not meet the legal requirements under the law and serve the best interests of the minor child the court cannot approve the plan. 

It is best to review your custody rights with an attorney first; however, productive conversations attempting to settle your custody matter can be beneficial.  It strongly discouraged for that discussion to turn into a shouting match or for bullying or threats to be used during the conversation.  A negotiation which escalates is rarely productive, and the information shared could be later used against you in court.  If you are working with an attorney it is generally best for you to advise the other parent to have his/her attorney contact your attorney.  

There are two types of custody in Mississippi—legal custody and physical custody. 

Legal custody determines which parent has the legal right to make decisions concerning the child’s health, education, and welfare, such as religious matters. Generally, parents have joint legal custody. However, in certain circumstances only one parent will be permitted to make legal custody decisions. 

Physical custody determines with whom the child will live, as well as where they will spend their weekends, holidays, and vacations. Joint physical custody means that the child lives for equal, or near equal, periods of time with each parent. Whereas, sole physical custody means that the child lives with one parent for the majority of the time, and the other parent has visitation. 

Common custody arrangements include the following: 

• Both parents have joint legal and physical custody 

• Both parents have joint legal custody, one parent has sole physical custody with the other parent having visitation rights 

• One parent has sole legal and physical custody with the other parent having visitation rights.  

Joint or sole physical, joint or sole legal, or even supervised visitation— the standards is what it is in the best interest of the child(ren). Every case is different. Your family, and your family’s situation, is unique. What works for one family will not work for all of them.  

Court orders must be followed until they are modified, or changed, by a court of competent jurisdiction.  If you do not follow the court order the court can hold you in contempt of court (which can include incarceration.)   If you file for modification of the court order you must continue to follow the court order while the petition for modification is pending.  The request for the court to modify your child custody order is not enough to stop following the order.  You cannot stop following the court order unless and until you obtain a new court order which modifies child custody and/or visitation.  

 If parents cannot agree as to the custody and visitation arrangements for the minor child(ren) the court will make a decision after a full evidentiary hearing. When making decisions about custody the court will use the standard of what is in the “best interest of the child.” 

To determine custody Mississippi courts review what are referred to as the Albright factors, as set out in Albright vs. Albright, 437 So.2d 1003, 1005 (Miss. 1983), with the factors being as follows:  

• Age, health and gender of the child.
• Parent having continuity of care prior to the separation.
• Parent with best parenting skills and willingness and capacity to provide primary child care.
• Employment of the parent and responsibilities of that employment.

• Physical and mental health and age of the parent.
• Emotional ties of parent to child.
• Moral fitness of the parent.
• Home, school and community record of the child.
• Preference of the child at age sufficient to express a preference.
• Stability of parent’s home environment and employment of each parent.
• Relative financial situation of the parents.
• Difference in religion of the parents.
• Differences in personal values of the parents.
• Differences in lifestyle of the parents.
• Other factors relevant to the parent-child relationship.

Generally, one parent is going to be ordered to pay child support for the care of the child(ren). Child support is paid by the non-custodial parent to assist in expenses of the child(ren). Most jurisdictions in Mississippi require that one parent pay child support even when the parents share joint physical custody. The court will not permit the parents to waive the payment of child support given that this would not be in the best interest of the minor child.  Child support is for the benefit of the child. Mississippi has State child support guidelines which are required to be followed.  For more information about child support visit Q&A:  Child Support.