How Domestic Violence Affects Child Custody in Mississippi

Learn how domestic violence impacts custody decisions in Mississippi.

Not only does domestic violence cause raw, lasting pain and leave families in turmoil, but it can also affect who gets custody of a couple's children.

This article will explain what domestic violence is and how it affects child custody in Mississippi. If you have any questions after you read this article, consult with a family law attorney for advice.

Domestic Violence Overview

It's common for people to think they aren't victims of domestic violence if they haven't been physically abused. And if people don't think they're victims of domestic violence, they might not seek help. So it's critical to understand what domestic violence really means and who is affected.

Mississippi law provides that domestic abuse includes all of the following behaviors:

  • intentionally or negligently attempting to cause bodily or serious bodily harm, with or without a weapon
  • making threats or physically menacing someone until they are afraid of immediate and serious bodily harm
  • criminal sexual abuse against a child
  • stalking
  • "cyberstalking" (using the internet to frighten or threaten someone else), and
  • sexual offenses against people other than children.

Sometimes people wonder if they have a close enough relationship with an abuser to be considered victims. Under Mississippi law, the following people, known generally as "family and household members," are protected from domestic violence:

  • current spouses
  • former spouses
  • people who used to be married and are separated or divorced
  • people who have one or more children together
  • people related by blood or marriage who live together or who formerly lived together, and
  • people who have a current or former dating relationship.

A "current or former dating relationship" is defined as a romantic or intimate relationship between two people. Casual relationships or "ordinary fraternization" (everyday working or social relationships) aren't protected by the domestic abuse laws. To decide whether a relationship is casual or dating, judges will examine evidence about the length and type of the relationship and the frequency of interaction between the two affected people.

If you're a victim of domestic violence, you can go to court and ask for a domestic abuse protection order. For more information, see this information from the Mississippi Attorney General.

Community Resources

Mississippi has a wealth of information and programs that victims of domestic violence can access. Mississippi Legal Services, a legal aid program, provides online client legal education about domestic violence. The Mississippi Department of Human Services and the Mississippi Coalition Against Domestic Violence maintain listings of domestic violence shelters throughout the state. If you live in northern Mississippi, you can access counseling, shelter, and other services provided by S.A.F.E., Inc. by calling their 24 hour hotline at 1-800-527-7233.

Finally, victims can always call the National Domestic Violence Hotline at 1-800799-7233. It's available 24 hours a day, seven days a week.

Domestic Abuse and Child Custody

In Mississippi, there are two kinds of custody: legal and physical. Most of the time, physical custody (meaning, where the children will live) goes to the parent who spends more time with and provides the majority of the daily care for the children. The parent without physical custody is awarded visitation set up according to a schedule.

Legal custody, on the other hand, refers to a parent's legal right to make important decisions for their children, like where they should go to school, or whether they should go to church or undergo medical treatments. In most cases where there's been no abuse and parents are able to cooperate, parents have joint (shared) legal custody.

Judges have to consider a laundry list of the best interests of a child when they make custody decisions. For more information about the best interest factors in Mississippi, see Child Custody in Mississippi: The Best Interests of the Child by Susan Bishop.

When it comes to domestic abuse, the law states that in every child custody case, there is a "rebuttable presumption" (meaning, a legal assumption that can be overcome by the other side only if there's enough good evidence to show that the assumption is more likely untrue than true) that it is harmful to a child to be placed in the sole or joint custody, whether physical or legal, of a parent who has perpetrated domestic abuse. Therefore, if a parent has committed family violence, the law presumes that the non-abusive parent should get custody.

The judge can apply this presumption if there's been one incident of serious bodily injury in the family, or if there has been a pattern of family violence. The court has to issue a written order that considers:

  • whether giving joint physical or legal custody of a child to the perpetrator is in the child's best interests because the non-perpetrating parent has abandoned the child or suffers from mental illness, chemical dependency, or other problems that would be harmful to the children
  • whether the perpetrator has successfully completed a batterer's treatment program
  • whether the perpetrator has successfully completed court-ordered alcohol or drug abuse counseling
  • whether the perpetrator has successfully completed a court-ordered parenting class
  • whether the perpetrator has committed any other acts of domestic violence, and
  • if the perpetrator is on parole or probation, whether there is a protective order in place and whether the perpetrator has complied with it.

If both parents have a history of domestic abuse, then then one of two things can happen. First, it's possible that the judge can place the child with a suitable third person who promises not to allow parental access except by court order. The child's grandparents would be the most likely custodians. Second, the court can award custody to the parent who is less likely to continue to be abusive, conditioned upon completion of treatment by the custodial parent.

Impact on Visitation

If there has been domestic abuse in a family, the judge can't allow visitation with the abusive parent unless there are safeguards in place to protect the child. The court can:

  • order the exchange to take place in a safe place, like a police station
  • order visitation to be supervised
  • order the abusive parent to complete treatment for abusers before the parent can see the child again
  • order the abusive parent to pay any costs associated with supervised visitation
  • prohibit overnight visitation
  • require the abusive parent to pay a bond to ensure the safe return of the child, and
  • impose any other restriction necessary to keep the child safe.

If a judge allows a family or household member to supervise visitation, the court will set up specific conditions that the supervising member has to follow.

Termination of Parental Rights

In Mississippi, if a parent has been responsible for a series of abusive incidents concerning one or more children, a court may completely and permanently terminate that parent's parental rights to both legal and physical custody of his or her child. However, this happens only in the most extreme cases of abuse, and once such rights are completely severed, they cannot be regained by the abusive parent, even if he or she shows good behavior in the future.

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