Child Custody

Simply a Piece of a Larger Pie: The Weight of Adultery in Child Custody Determinations

July 31, 2014 | by M. Devin Whitt

If you are involved in a child custody dispute, it is important to be aware of what Mississippi courts look at when making custody determinations. One important question that often surfaces is whether adultery can disqualify a parent from obtaining custody. Adultery is a factor that can play a part in child custody determinations, but it is not necessarily the deciding factor; and the extent to which adultery affects a custody determination depends on the circumstances. Most importantly, in a child custody dispute between divorcing parents, Mississippi courts consistently award custody of the child (or children) to the parent that will better serve the “best interests and welfare” of the child. This “best interests of the child” standard serves as a guiding light for the courts in all custody cases in Mississippi. Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996) (citing Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994)).

Courts will usually first look at several legal presumptions that have been developed over the years to further the “best interests of the child” standard. Such presumptions include the presumption against a violent parent having custody of the child, or the presumption that natural parents should be favored over an adoptive parent. Beyond these legal presumptions, courts will look at the often-used Albright factors, named after a 1983 Mississippi case. See Albright v. Albright, 437 So. 2d 1003 (Miss. 1983). A brief overview of these Albright factors can be found here.
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Sibling Custody: Stay Together or Separate?

January 18, 2012 | by M. Devin Whitt

Custody disputes in Misssippi are never easy. Two parents are put into the untenable position of being forced to battle against each other for the right to keep and care for a child that earlier belonged to both of them. These disputes are complicated even further when, instead of just one child being at issue, there are two, three, or more brothers and sisters whose well-being are at stake. Suddenly, the court may be forced to consider whether siblings should go to one parent or be divided between the parents.

The Mississippi Supreme Court has reiterated time and time again that, in custody disputes involving multiple children, courts should strive to keep the family unit together. But the custody analysis does not change in multiple-child households. In every child custody dispute in Mississippi – even those involving more than one child – the court will follow the guidepost that custody should be awarded to the parent best able to serve the “best interests and welfare of the child.”

In making this “best interest” determination, Mississippi courts have consistently and explicitly used what are called the Albright factors, so named after the 1983 case in which they were first outlined. These factors are discussed in more detail in the custody section of my blog. Even in multiple-child custody disputes, Mississippi courts still will use these factors in determining which parent will best fulfill the “best interests” of the children. So a key question necessarily comes up when siblings are involved: Is it in the “best interests” of siblings that they stay together in a custody determination?
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Child Custody In Mississippi

February 3, 2011 | by M. Devin Whitt

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.
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