If you and your child's other parent are splitting up, you'll have to contend a number of issues. Who's the child going to live with most of the time? How much time will the other parent get to spend with the child? Which parent has the right to make important decisions about the child's upbringing? Even if you were already divorced, you might need to change your current parenting arrangements. Read on to find out how Mississippi law deals with these issues.
There are two aspects to child custody in Mississippi: legal custody and physical custody.
Custody may be shared or split between the parents in different ways.
Legal custody and physical custody don't have to be allocated in the same way. Parents may joint legal and physical custody, or one of them may have sole physical custody while they share joint legal custody. (Miss. Code § 93-5-24 (2023).)
It's also worth pointing out that under Mississippi law, both parents have the right to access their children's school, medical, and other records, whether or not they have physical custody. The only exception is when their parental rights have been terminated. (Miss. Code § 93-5-26 (2023).)
You can always try to agree with your child's other parent on your custody and visitation arrangements. In fact, most parents eventually do reach a custody agreement, to avoid the expense and stress of a trial. You'll need to submit your agreement to the court so that it can become part of an official order. But the judge will likely approve the plan unless it's not in the child's best interests.
Typically, parents will put the details of their agreement in a "parenting plan." Normally, the more detailed the plan the better, to avoid any confusion down the road. Some of the items to consider covering include:
Note that if you meet the criteria for filing for divorce online, the questionnaires for some of the reputable services may walk you through preparing a parenting plan.
If both parents agree to joint legal and physical custody, the judge will presume that it's in the child's best interests. (Miss. Code § 93-5-24(4) (2023).)
In any custody case, the judge's priority must be "the best interests of the child." But how do judges decide what's best for kids?
The Mississippi statutes don't fully address this question, but the state's courts have held that judges should consider the all of the relevant factors when making custody decisions, including:
Mississippi's courts have laid down some basic rules about noncustodial parents' visitation rights:
Of course, parents are free to agree to a visitation schedule that exceeds the bare minimum, and that happens more often than not.
Note that grandparents may seek visitation rights in Mississippi, but only in some circumstances.
Mississippi law states that judges should not presume it's in children's best interests for mothers to have legal or physical custody. (Miss. Code § 93-5-24(7) (2023).)
This language is meant to negate the "tender years" doctrine, which was used in the past to assume that mothers were best suited to care for young children. Still, a child's age will be one of the factors (discussed above) that a judge will consider when deciding on the best custody arrangements.
Under Mississippi law, judges must presume that it would be in a child's best interest for a parent to have sole custody, joint legal custody, or joint physical custody if that parent has a history of domestic violence against the other parent or a household member. A history of domestic violence means either one incident that caused serious bodily injury or a pattern of repeated incidents.
This presumption is "rebuttable," which means a parent may present evidence in an effort to get custody despite a history of domestic violence. When deciding whether that evidence is enough to overcome the presumption against custody, the judge must consider whether:
(Miss. Code § 93-5-24(9)(a)(iii) (2023).)
A Mississippi judge may allow a parent to have visitation rights despite a history of domestic violence, but only if there are adequate measures to protect the safety of the child, the other parent, or any other family or household member. Among other things, the judge may impose any of the following requirements:
Note that if one parent has falsely claimed (without any legitimate basis) that the other parent engaged in domestic violence, the judge will order the accuser to pay the other's court costs and reasonable attorney's fees to respond to those claims.
(Miss. Code § 93-5-24(9)(c), (d) (2023).)
It's not uncommon for judges to have trained professionals (typically psychologists or social workers) conduct a custody evaluation, to assist the court in determining the child's best interests. The judge may also appoint a guardian ad litem for the children.
If the custody battle is particularly bitter, the children may even need to be represented by their own attorney.
If your family's needs or circumstances have changed, you may want to modify your existing custody or visitation orders. For instance, when a parent plans to move away with the child, that might call for a change in custody or visitation because of the relocation. Also, as children get older, the current visitation schedule may not work for them.
The easiest way to deal with changes like this is to work out an agreement with the other parent. You'll need to submit your agreement to the court, along with a modification motion (written legal request). But judges typically approve these motions, unless the changes aren't in the child's best interests.
If you can't agree on a modification, the judge will have to decide whether to grant the request. The standards for making that decision are different depending on whether you want to change the visitation schedule or where the child primarily lives.
When you have joint custody, a judge will grant a modification as long as:
(Miss. Code § 93-5-24(6) (2023).)
In other cases, the parent who's seeking the modification must prove that:
Ordinarily, a change in the noncustodial parent's circumstances doesn't—in and of itself—warrant a custody order modification. But when the environment in a custodial parent's household is harmful to the child and the noncustodial parent's circumstances have changed to the point where that parent can now provide the child with a more suitable environment, a judge may take the noncustodial parent's circumstances into consideration.
Also, when a custodial parent's living situation is clearly contrary to the child's well-being, a judge may modify custody even if the child isn't showing signs of being affected by those living conditions. As the Mississippi Supreme Court reasoned, even if children are able to cope with a toxic environment, they shouldn't have to endure those conditions if the other parent can provide a healthier home. (Riley v. Doerner, 677 So. 2d 740 (Miss. 1996).)
If you're seeking to modify only your current visitation arrangements, you don't need to prove that there's been a change in circumstances since the existing order was issued. Instead, you simply need to show that:
If your child's other parent isn't complying with your custody or visitation orders, you may file a motion asking the court to enforce the order. These motions often request that the judge:
It's important to point out that the visitation rights are separate from the responsibility to pay child support. So a custodial parent isn't allowed to withhold visitation even if the other parent isn't keeping up with child support payments. Likewise, noncustodial parents may not withhold child support because they're being denied visitation.
Also, you should know that it's a felony in Mississippi for a noncustodial parent to remove a child under the age of 14 from the state, or to keep the child out of state, in violation of a court order and with the intent to violate the order. (Miss. Code § 97-3-51 (2023).)
Custody cases are serious, and they can take an emotional toll on parents and children alike. They can also be quite complex, especially if you're not familiar with Mississippi law and court procedures.
It's in everyone's interest if you can resolve your differences without going to court. If you can't do that on your own, you might seek assistance through custody mediation.
If mediation doesn't work, at least consider speaking with a family law attorney in Mississippi. That's the best way to learn how to protect your rights.