In Mississippi, there are two types of child custody: “physical custody” and “legal custody.” Physical custody is the period of time in which a child resides with a particular parent, while legal custody refers to the right of a parent to make decisions relating to the health, education and welfare of the child.
There are numerous ways that child custody may be awarded in Mississippi. A court may award joint physical and legal custody, joint legal custody with sole physical custody in one parent, joint physical custody with sole legal custody in one parent or physical and legal custody to either parent. Joint legal custody means that parents share decision-making rights with regard to the child. Moreover, when joint physical custody is awarded, a child will normally spend a significant time with both parents. Where a home has more than one child, a court may also order split custody, though there is a strong preference for keeping siblings in the same home in Mississippi.
It is important to remember that the primary or “polestar” consideration in custody cases is the “best interests and welfare of the child”. Chancellors in Mississippi always determine custody based on this “best interests” approach or test. In Mississippi, it is now presumed that mothers and fathers are equally entitled to custody of their children. In addition to the presumption of equality, other presumptions also directly influence custody actions in Mississippi. These include the presumption in favor of a natural parent, the presumption against custody to a violent parent, and the presumption in favor of joint custody upon both parents request.
So who will get custody in a dispute between natural parents? To resolve this question, Chancery Courts in Mississippi apply the presumptions above as well as the factors adopted by the Mississippi Supreme Court in Albright v. Albright, to determine which parent should have custody. These factors include:
[1] Age, health and sex of child;
[2] Continuing care of child prior to (and after) separation;
[3] Parenting skills of each parent;
[4] Capacity to provide child care and employment responsibilities;
[5] Physical and mental health and age of parents;
[6] Alcohol and drug use;
[7] Emotional ties of the parent and child;
[8] Moral fitness;
[9] Home, school and community record of child;
[10] Preference of a child twelve or older;
[11] Stability of the home environment and employment of parents; and,
[12] Other relevant factors that should be considered.
When determining custody, my experience is that a court will first apply the presumptions and, if not decisive on the custody issue, the court will then engage in a thorough Albright analysis to determine which parent should be awarded custody and why.
If you are seeking custody of your child, it is critical that you retain an experienced family law attorney who will aggressively protect your right to custody of your child As a Mississippi divorce and child custody attorney, I will be on your side to navigate the complex issues of child custody, zealously protect your interests, and offer direct, meaningful legal advice designed to achieve your desired results. I have litigated these custody and support cases throughout Mississippi and have the capability and resolve to guide you through your family crisis should you need assistance. Should you need professional, aggressive representation in child custody, support, modification, contempt or other family law matters, please contact M. Devin Whitt at 601.607.5055