Child Custody in Mississippi

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.

Types of Child Custody in Mississippi

There are two aspects to child custody in Mississippi: legal custody and physical custody.

• Mississippi defines legal custody as a parent's decision-making rights, responsibilities, and authority related to the child's health, education, and welfare.
• Physical custody means the time a child lives with a parent or is under a parent's care and supervision.

Sole vs. Joint Custody

Custody may be shared or split between the parents in different ways.

• If one parent has sole legal custody, that parent can make decisions about the child's upbringing, without consulting the other parent.
• When parents have joint legal custody, they share decision-making. As a general rule, they're obligated to exchange information about their child's health, education, and welfare—and to confer with each other when making decisions about those issues. Sometimes, however, each parent will be allocated responsibility over certain areas. For instance, one parent may have authority to make decisions about the child's medical care, while the other parent decides on schooling.

• Sole physical custody means the child primarily resides with one parent (known as the "custodial parent"). However, the noncustodial parent typically has visitation rights with the child (more on that below).
• With joint physical custody, the child lives with each parent for a substantial—although not necessarily equal—amount of time. The idea is that the child should be able to have frequent and continuing contact with both parents.

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).)

Parenting Plans and Agreements

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:

• provisions for the children's living arrangements and for each parent's time with the children, including a detailed schedule
• identifying which parent will be designated as the custodial parent (particularly for school registration purposes)
• an agreement to mediate any future disagreements about changes to custody or visitation, including how you'll handle one parent's plan to relocate with the child
• requirements for notifying each other about emergencies, health care, travel plans, or other significant child-related issues
• transportation arrangements for exchanging the child
• methods of communicating with each other and with the child (such as phone, email, and video conferencing)
• details about a possible "right of first refusal," which gives a parent the first option to care for the child when the other parent has to temporarily leave the child with someone.

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).)

How Mississippi Judges Make Custody Decisions

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:

• the child's age, health, and sex
• the child's emotional ties with each parent
• the child's custody preference, as long as the child is at least 12 years old
• the child's home, school, and community record
• which parent was providing care for the child before the couple separated
• which parent has the best parenting skills, as well as the willingness and ability to provide primary child care
• each parent's age, physical and mental health, and "moral fitness"
• each parent's employment responsibilities, and
• the stability of each parent's home environment and employment.

Ordinarily, one factor shouldn't outweigh another. (Albright v. Albright, 437 So. 2d 1003 (1983); Hollon v. Hollon, 784 So. 2d 943 (Miss. 2001); Miss. Code § 93-11-65(1)(a) (2023).

Visitation Rights in Mississippi

Mississippi's courts have laid down some basic rules about noncustodial parents' visitation rights:

• Visitation schedules should serve the child's best interests, with the goal of creating an environment that's conducive to allowing a close relationship between the child and the noncustodial parent—at least as much as possible.
• Judges must start out by presuming that noncustodial parents are entitled to overnight visitation with their children. And in most situations, they have the right to decide where and how they'll visit with their children, subject only to reasonable restrictions.
• The minimum for a "liberal" visitation schedule should two weekends a month during the school year and five weeks during the summer.

(Chalk v. Lentz, 744 So. 2d 789 (Miss. Ct. App. 1999); Cox v. Moulds, 490 So. 2d 866 (Miss. 1986).)

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.

Does a Parent's Gender Play a Role in Mississippi Custody Cases?

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.

Does Domestic Violence Affect Mississippi Custody Decisions?

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:

• awarding custody to the abuser would in the child's best interests because of the other parent's absence, mental illness, substance abuse, or other circumstances
• the abuser has successfully completed a batterer's treatment program, court-ordered drug or alcohol counseling (if that's appropriate), and a court-ordered parenting class
• the abuser has complied with any protective order that's in place, and
• the abuser has committed any further acts of domestic violence.

(Miss. Code § 93-5-24(9)(a)(iii) (2023).)

Can Domestic Violence Affect a Parent's Visitation Rights?

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:

• visitation must be supervised, which might be with a trusted family member or friend or, if necessary, in an approved facility with trained personnel
• the abuser must pay a fee to help offset the cost of supervised visitation
• the abuser must post a bond to guarantee that the child will be returned safely
• the child will be exchanged in a protected setting
• there will be no overnight visitation
• the abuser may not possess or use alcohol or controlled substances during visitation and for 24 hours beforehand, and
• the abuser must successfully complete an intervention program or other counseling.

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).)

Custody Evaluations in Mississippi

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.

Modifying Custody and Visitation in Mississippi

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.

Modifying Custody Orders

When you have joint custody, a judge will grant a modification as long as:

• both parents agree to the modification, or
• one of the parents shows that there has been a "material" change in circumstances (meaning a change that's significant enough to affect whether the current custody arrangements are in the child's best interests).

(Miss. Code § 93-5-24(6) (2023).)

In other cases, the parent who's seeking the modification must prove that:

• there's been a material change in circumstances
• the change negatively affects the child's welfare, and
• the requested custody modification is necessary for the child's best interests.

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).)

Modifying Visitation

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:

• the current visitation arrangement isn't working, and

• the change you're requesting would be in the child's best interest.

(Christian v. Wheat, 876 So. 2d 341 (Miss. 2004); Sistrunk v. McKenzie, 455 So. 2d 768 (Miss. 1984).)

Enforcing Custody and Visitation Orders in Mississippi

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:

• impose additional conditions on custody or visitation
• order makeup parenting time for you, as well as reimbursement for your expenses related to the violations (such as attorney's fees and court costs), and
• hold the "guilty" parent in contempt of court, which can result in a fine, jail time, or both.

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).)

Getting Help Custody and Visitation Issues

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.