Can Children Express Preference in Mississippi Custody Proceedings?

Learn whether a child's custodial preference has any effect on custody in Mississippi.

Fifty percent of children in the United States will witness their parents separate. The hardest task for many separating parents is determining the best custody arrangement for their minor children. Sometimes, parents believe that the decision comes down to one parent’s desires versus the other parent’s desires, but in most states, the court must also consider the child’s preference when deciding custody.

This article will explain how a child’s preference affects custody in Mississippi. If you have additional questions about the effect of a child’s custodial preference in Mississippi after reading this article, you should consult a local family law attorney.

Overview of Custody Decisions in Mississippi

Most separating parents settle their custody case between themselves, but when they can’t do so, the court decides child custody. In Mississippi, the judge must consider a number of factors when determining custody, including each of the following:

  • the child’s age, health, and gender
  • which parent was primarily responsible for child care before the separation
  • which parent has the best parenting skills
  • which parent is willing and able to provide primary child care
  • each parent’s employment and job responsibilities
  • each parent’s age, physical health, and mental health
  • the child’s emotional ties to each parent
  • the parents’ moral fitness
  • the child’s home, school, and community record
  • the parents’ homes and job stability
  • whether either parent has a history of domestic violence
  • the child’s preference, if the child is of sufficient age, and
  • any other factors relevant to the parent-child relationship.

To read more information about custody decisions in Mississippi, see Child Custody in Mississippi: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

In Mississippi, courts will consider a child’s preference whenever a child is 12 years or older. Unlike many other states, where the judge must make a decision as to the child’s maturity on a case-by-case basis, Mississippi law has a specific age when a child’s custodial preference factors into the custody decision. The opinions of children 11 or younger don’t factor into the custody determination.

A child 12 years or older can select which parent he or she wants to live with so long as the following criteria are met:

  • each parent is fit to have custody of the child
  • each parent can adequately provide for the child’s care and maintenance, and
  • it’s in the child’s best interest to select the parent he or she prefers.

These criteria don’t mean that the child’s preference overrides the court’s decision. The requirement that it be “in the child’s best interest” to choose a parent means that the judge can overrule the child’s preference whenever the court believes a different custody arrangement would be better for the child. Whenever a judge overrules a child’s preference, however, the court must state on the record exactly why the child’s preference isn’t in his or her best interest.

For example, in one case, a 14 year-old daughter stated that she’d prefer to live with her mother. The court found, however, that the mother didn’t get the child to school on time, that the mother kept her home dirty, that the daughter had previously stated that she had no custodial preference, and that the daughter’s siblings would be better off in the care of the children’s father. The judge decided to overrule the daughter’s preference and awarded custody to her father.

Do Children Have to Testify About Their Custodial Preferences in Court?

Children in Mississippi don’t have to testify about their custodial preferences in the courtroom. The courts recognize that it would be difficult for most children to state which parent they prefer while in front of them. Instead, most courts will interview children in court chambers to determine their opinion on custody.

Parents aren’t allowed into the in-chambers interview, but the court may sometimes allow their attorneys to be present. A court reporter must always be present for the interview and make a record of the interview. The judge can later decide whether to seal the interview to keep the parents from reading it if it’s in the child’s best interest to do so.

Alternatively, a child over the age of 12 can file a custodial “preference statement” with the court that indicates which parent the child prefers to have custody. This is another way that the court can determine the child’s opinion on custody without the child having to testify in court. The court can also appoint a custody evaluator who can speak with the child and then testify about the child’s wishes in court.

If you have additional questions about the effect of children’s custodial preferences, contact a Mississippi family law attorney for help.

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