Overview: Child Custody in Mississippi

Custody cases are determined on the facts of each case. Another way to say this is that every case is different, and what happened in one case is not a reliable predictor of what will happen in another case. Unlike other areas of law, there are no formulas to be applied in deciding who will be awarded custody of the children. To the contrary, the law in Mississippi vests considerable discretion in chancellors to make custody decisions that are in the best interest of the children.

For the purpose of our examples and through this section, we’ll use the example of a family that includes a husband, wife, and children. We understand that some families may have different situations and dynamics. We will do our best to explain the laws as they may relate to you.

CUSTODY PRESUMPTIONS

Nevertheless, there are some fundamental rules that each case begins with. These are presumptions that will probably not decide the case but will guide the chancellor toward the proper outcome.

These presumptions are rebuttable, which means that they are not absolute. In most cases, if you can prove that the presumption should not be followed, it won’t be.

Presumption of Parental Equality

Until 60 years ago, it was presumed that if a mother was a fit parent, she should be awarded custody of the children. Only mothers who were deemed to be unfit would not be awarded custody. In those days, if the mother was guilty of adultery, there was a substantial possibility that she would be determined too immoral to raise children.

Before 1960, there were almost no standards in the U.S. for how child support was to be awarded, other than that the child’s reasonable needs were to be paid for by the father, subject to his ability to pay those expenses.

The Father’s Rights movement began in the mid-1960s as a response to rising divorce rates. For the first time, child support began to be set in a systematic way, usually far higher than what had earlier been the norm. Fathers argued that if mothers were entitled to more child support (and they were), then the fathers were entitled to more time with the children. Thus, visitation rights were enhanced, and fathers who wanted more time with the children were awarded it. You can read more about the history of the Father’s Rights movement here.

By the early 1970s, the movement had advanced beyond advocating for more visitation and began arguing for the abolishment of the long-standing presumption that custody of children should be awarded to the mother. In Mississippi, the Supreme Court held that there would no longer be a “maternal presumption,” except for children of “tender years.” Originally, “tender years” was defined as children who were five (5) years old and younger. Later, this was revised to three (3) years old and younger. Finally, the Court held that this “tender years doctrine” had only limited applicability, and that the age of the child was only one factor among many for the chancellor to consider.

Chancellors in Mississippi are now instructed to presume that, absent evidence to the contrary, mothers and fathers are equally capable of caring for the children.

Presumption of Joint Custody

The presumption of Equality of Parents has extended to the point that if both parents ask the chancellor to award them joint custody of the children, the law presumes that an award of joint custody is in their best interest. We will discuss later what joint custody means, but generally, it refers to both parents having significant (but not necessarily equal) time with the children.

Presumption of Parental Custody/The Natural Parent Presumption

There is a strong presumption that the children’s parents should be awarded custody, and that the claims of a non-parent (e.g., the child’s grandparent, aunt, uncle, adult sibling) will not even be considered by the chancellor unless/until it is clearly proved that the parent has relinquished his parental rights, has no meaningful relationship with the child, or the parent’s conduct is clearly detrimental to the child.

To put this another way, it simply does not matter that a non-parent has an established, close relationship with the child and would do a better job than the parent in raising the child. The parent will still be awarded custody until/unless the Natural Parent Presumption is rebutted.

There are three ways that the presumption can be rebutted. First, if the parent engages in immoral or unfit conduct, which makes the parent unfit to be awarded custody (e.g., substantial and unreformed substance abuse, children not properly clothed or fed, exposing child to sexual situations, living with several men without the benefit of marriage, selling narcotics).

Second, if the parent abandons or deserts the child. Abandonment refers to conduct that demonstrates a settled purpose to forego the duties of a parent and to relinquish the claims of a parent. Desertion refers to avoiding the duties and obligations of a parent. Examples of abandonment and desertion are signing away parental rights, agreeing to custody being awarded to a non-parent, and leaving a child in the care of a non-parent for a significant period of time (particularly if the parent does not visit or have other contact with the child).

Note that if one parent (or his family) hides the child from the other parent, that parent’s absence from the child’s life will not be considered abandonment or desertion, inasmuch as it was involuntary.

Third, a few cases have found that the Natural Parent Presumption does not apply to defrauded step-fathers. If a wife got pregnant by another man, but her husband thought that the child was his and raised the child as his, the wife will not be allowed to use the Natural Parent Presumption against her husband in a custody case. Even though he is not the child’s biological father, the chancellor will allow him to proceed as if he were one of the child’s parents.

Domestic Violence Presumption

The law in Mississippi presumes that custody should not be awarded to a parent:

• Who has engaged in a pattern of domestic violence; or

• Who has engaged in one or more incidents of violence involving serious bodily injury.

In layman’s terms, “serious bodily injury” usually means injuries requiring medical attention — something more significant than slight cuts and bruises. In defining “a pattern of domestic violence,” one court held that the term did not include yelling and screaming, even combined with occasional slapping. Another court held that a single incident, in which a husband shoved his wife to the floor and hit her with a belt, was not a “pattern of domestic violence.”

The Domestic Violence Presumption is not an absolute bar to getting custody. The chancellor is required to consider the non-abusive parent’s history (if any) of mental illness, substance abuse, and poor parenting; whether the perpetrator has completed a batterer’s treatment program and/or rehab for substance abuse; whether the domestic violence is continuing; and whether a protective order is in place. Conceivably, a chancellor might find that placing the children with the abusive parent is the lesser of two evils.

If both parents have committed domestic violence, the chancellor is to consider which parent is less likely to continue to perpetrate family violence. As a practical matter, in cases involving domestic violence in which both parents have engaged in culpable conduct, the chancellor might well find that neither parent is fit to have custody and look for a suitable non-parent to raise the children.

Marriage Presumption

Custody disputes can arise in divorce cases, but they also can arise in paternity cases. Occasionally, a parent will argue that the normal rules for determining custody should not apply to paternity cases, and that the mother should automatically get custody. This simply is not the law. There is no “marital presumption” that provides one set of rules for deciding custody in divorces and another for custody disputes where the parties are not married.

Stated another way, a mother can lose custody even if she is the person who filed the paternity suit, just as she can in a divorce case. The rules are exactly the same.