Can Children Express Preference in Mississippi Custody Proceedings?

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

By , Attorney · Brigham Young University J. Reuben Clark Law School
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Nearly half of all children in the United States will be the subject of custody proceedings. When Mississippi parents separate or divorce, the hardest part of the process is determining the best custody arrangement for their minor children. In some instances, a child's preference can change the outcome of a custody case.

This article explains how a child's preference impacts custody decisions in Mississippi. If you have specific questions about your case after reading this article, contact a local family law attorney for advice.

Mississippi Child Custody Laws

Parents who can reach their own custody agreements will avoid the hassle and expense of attending trial. In many cases, a mediator can assist parents in reaching and writing up a custody agreement. However, when parents don't agree, a judge will have to decide both physical and legal custody.

Physical Custody

A parent with physical custody lives with the child. Parents can share physical custody, also called "joint custody." Alternatively, one parent may have sole physical custody.

A judge will decide the nuances of your custody arrangement, including how many days each parent spends with the child. Parents with joint physical custody will both have substantial time with the child, although not necessarily equal time. With sole custody a child will live with one parent most or all of the time, while the other parent will have visitation, with our without restrictions.

Legal Custody

"Legal custody" refers to a parent's right to make decisions on the child's behalf. In most cases, parents will share legal custody so that the parents can both have a role in the child's upbringing.

A parent with sole legal custody can decide where a child will attend school, what kind of medical treatment the child should receive, and whether the child should be raised in a particular religion. When parents have joint legal custody, they both a right to participate in the decision-making process.

How to Get Custody of a Child in Mississippi

A child's best interests are central to any Mississippi child custody decision. Whether you reach an agreement on custody or let a judge decide custody at trial, any custody arrangement must serve the child's needs. See Miss. Code § 93-5-24 (2020). A judge will review the following factors to determine the arrangement most suited to a child's best interests, specifically:

  • the child's age, health, and gender
  • each parent's role in caretaking and childcare
  • each parent's parenting skills
  • which parent is willing and able to provide primary childcare
  • 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 ties to home, school, and community
  • each parent's overall stability
  • either parent's history of domestic violence, if any
  • the child's preference, if the child is of sufficient age, and
  • any other factors relevant to the parent-child relationship.

Ultimately, a judge's decision will depend on your family's unique circumstances and your child's needs. There's a rebuttable presumption in Mississippi that a parent who has committed domestic violence against the other parent is not fit to have primary custody. The violent parent has the burden of proving that he or she can keep the child safe and custody would serve the child's best interests.

When Will the Court Consider a Child's Preference?

Under Mississippi child custody laws, a court 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 specifies that the opinions of children 11 or younger don't factor into a custody determination.

A child 12 years or older can state a preference for 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 for the child to live with the selected parent.

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 Mississippi 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 and kept her home dirty. 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. Because of the above factors, the judge decided to overrule the daughter's preference and awarded custody to her father.

When Can a Child Refuse Visitation in Mississippi?

There's no hard and fast rule for when a child can refuse visitation. Obviously, it's much harder for a parent to force a teenager to attend visits than it is to get a toddler in the car and travel to the other parent's house.

Parents are responsible for encouraging a relationship between the child and the other parent. Unless the child is in danger, a judge will require a parent to ensure that visits between a young child and the other parent take place.

Mississippi recognizes the age of majority as 21—much older than other states. See Miss. Code § 1-3-27 (2020). This means under Mississippi law the legal age to leave home is 21. A parent's child support obligation will continue until a child is 21 or legally emancipated. Does this mean a 20 year-old can't refuse visitation? Not exactly, keep in mind that visitation is for the child's benefit and while parents can't prevent visits, a judge probably won't force visitation on an older child who doesn't want it.

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

Mississippi's child custody laws try to keep children out of the courtroom when possible. The judicial system recognizes that most children would be uncomfortable expressing a parental preference in front of both parents. In most cases, a judge will interview children in the judge's chambers to determine their opinion on custody.

Parents aren't allowed into the in-chambers interview, but attorneys and a court reporter are present for these interviews to keep an accurate record. A 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 indicating which parent he or she would rather live with. This is another way that the court can determine the child's opinion on custody without the child having to testify in court. A judge may also appoint a custody evaluator who can speak with the child privately and then testify about the child's wishes in court.

If you have additional questions about the effect of children's custodial preferences on Mississippi custody decisions, contact a local family law attorney for help.

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