When parents separate or divorce, they’ll have to figure out how to share custody of and responsibility for their child. Parents can reach their own agreements on custody or leave matters up to a judge to decide at trial. In either case, a judge will examine a child’s best interests to determine the custody arrangement most suited to your family’s needs.
There are two types of child custody under Mississippi law: legal and physical custody. The child custody laws for unmarried parents are the same as those for married ones although the documents filed and custody proceedings may be a bit different. Unmarried parents will need to establish paternity as well as custody, if paternity hasn’t already been established.
In both cases, “legal custody” refers to a parent’s authority to make decisions relating to the child's health, education, and welfare. “Physical custody” is a parent’s right to live with the child and provide care.
A judge may grant parents temporary custody in a Mississippi case until the parents can attend mediation and reach an agreement or custody can be decided at trial. Parents (whether married or not) can share physical and/or legal custody, or a judge may award one parent sole legal and physical custody.
There are various custody configurations that families can use after a divorce or separation. Ideally, parents will agree on which is best, but when they can’t agree, a judge will make a custody decision based on the child’s best interests.
In most cases, judges prefer to award joint legal custody because it gives both parents an active role in the child’s upbringing. Parents with legal custody can decide where a kid should attend school or whether the child should be raised in a certain religious faith. In cases where a parent has sole legal custody, that parent can make major decisions for the child without input from the other parent.
Even if a court grants only one parent sole legal custody, with visitation rights to the other, both parents will continue to have access to information about their child. Access to records and information pertaining to a minor child (including medical, dental, and school records) can’t be kept from a non-custodial parent, unless the non-custodial parent's rights have been terminated by adoption or a termination of parental rights proceeding.
Joint physical custody arrangements take many forms. Parents who share physical custody will both spend ample time with the child, although not necessarily equal time. For example, parents can have a joint custody arrangement where one parent has the children for 4 nights while the other parent has the children for 3 nights each week.
Judges don't typically order sole legal custody and joint physical custody, because if parents can cooperate well enough to share physical custody, then they are usually able to share decision-making responsibility as well.
In situations where a parent has sole physical custody, one parent will be designated as the “primary custodial parent”. The other parent (called the “noncustodial parent”) will typically receive one evening visit each week, overnight visits every other weekend, and substantial summer visitation.
Even where one parent has a history of domestic violence or substance abuse, judges are reluctant to cut off a parent’s visitation entirely. To ensure a child’s safety, a judge may order supervised visits between a child and a parent with a history of abuse.
Visits can be supervised by an agency or mutually agreed-upon third-party. A supervised visitation order will continue as long as a judge determines it’s necessary to protect a child’s safety while in a parent’s care.
When making decisions about what custody arrangement is in a child’s best interests, a judge may consider any relevant information, including the following factors:
Mississippi’s child custody laws don’t require a judge to give certain factors more weight than others. Instead, judges have tremendous leeway in determining what constitutes a child’s best interests.
Ultimately, your child’s particular needs and your family’s unique circumstances will determine the outcome of your case. See Miss. Code. Ann. § 93-5-24 (2020).
Once a custody order is entered, parents are obligated to follow its terms until a child turns 18, is emancipated, or the order is modified. Either parent can seek a custody modification by filing a request with the court. For a judge to consider a parent’s modification request, a parent must show that there’s been a substantial change in circumstances and a change in custody would be in a child’s best interests.
Certain life changes like a parent’s remarriage or new job alone aren’t enough to justify a change in custody. However, if one parent has a terminal cancer diagnosis or a parent relocates internationally, a custody modification might be in order. For more information, see our Mississippi Divorce & Family Laws section.