Types of Child Custody in Mississippi

There are two forms of custody, and each may be awarded as joint or sole. The first form is physical custody, which refers to the time that the child is physically residing with or is under the care and supervision of a parent. There can joint physical custody or sole physical custody.

The second form is legal custody, which refers to the decision-making rights, the responsibilities, and the authority relating to the health, education, and welfare of a child. There can be joint legal custody or sole legal custody.

For a number of years, divorce decrees sometimes provided that one parent would be awarded primary custody (or primary physical custody) and the other secondary custody or (secondary physical custody). This led to some mischief because parents argued over whether this language had the effect of awarding joint or sole physical custody. The Mississippi Supreme Court disapproved of the terms primary and secondary custody.

As we have noted, the law presumes that an award of joint custody is in the child’s best interests when both parents have agreed to it.

Joint physical custody can mean, but does not have to mean, that the parents each have 50 percent of the time with the child. It can simply mean that each parent will exercise substantial periods with the child in that parent’s care.

Similarly, joint legal custody does not necessarily mean that each parent has an equal vote. It does mean that the parents share decision-making rights and that they will exchange information and confer with each other before any decisions are made concerning the child’s education, health, and welfare.

As you might expect, the better history that the parents have co-parenting, the more likely that some form of joint custody will be awarded. The more history that the parents have of arguing, the less likely that joint custody will be awarded.

Sometimes, months or years after a final judgment of custody has been entered, one party or the other will seek to change custody. This often occurs when a party wants to relocate with the child to another state or country. We write about custody modifications in our Ultimate Guide to Custody Modifications. But you should know that the rules for changing custody are very different, depending on whether the custody that you are trying to modify is joint custody or sole custody.

Generally speaking, a parent seeking to modify sole custody has a much higher burden of proof than a parent seeking to modify joint custody. It is critical that during the negotiations of your divorce, you understand that in the years to come, a chancellor will treat an award of sole custody very differently than an award of joint custody. The latter is much easier to modify than the former.

Parent’s Right to Information

The law in Mississippi is that if you are a parent, you have the right to receive information pertaining to your child regardless of whether you do or don’t have custody. You are entitled to access to the child’s records, including medical, dental, and school records, even if the other parent has sole custody. The right to information and records about your child is based on your status as a parent, not based on your status as a custodial or noncustodial parent.

Nevertheless, some schools and healthcare providers will only release information to the custodial parent. It’s helpful to have your lawyer include in your custody order that, even though you don’t have custody, you have this right to information and to records.

Military Deployment

A Mississippi statute enacted in 2010 recognizes that some parents with custody are actively serving in the military or are in the National Guard or Reserves. Those parents are subject to receiving temporary deployment, mobilization, or active duty orders, including being called up to National Guard or Reserve service for extended active duty status. Those orders can have a material effect on the parent’s ability to exercise custody responsibilities, and thus the other parent might obtain a court order that awards the non-military parent custody of the child while the other parent is deployed, etc.

The effect of this statute is to terminate those temporary custody orders when the military-parent is able to resume custody. In the meantime, the military-parent should be allowed web-cam visitation, plus in-person visitation when that parent is on leave.

Similarly, when the military-parent who has visitation rights rather than custody is deployed, etc., so that he cannot exercise visitation, his family members can exercise his visitation in his stead.