If there is going to be a fight in a custody case it will be over physical custody. Physical custody is different than Legal custody. Physical custody concerns which parent has actual, physical possession of the child. Within Physical custody there are officially only 2 types;
1) Joint Physical custody which by statute means each parent spends a significant portion of time with the child (though it does not have to be 50/50); and much more common is the second type
2) (Sole) Physical custody to one parent, subject to the other parent’s visitation. This is far more common in Mississippi. A lot of your Agreements may have the term “primary” in the physical custody language and some Judges even insist that it be specified, but “primary” has no statutory significance, meaning it is not a term that carries legal meaning. Lawyers, including myself, still use the term however.
If the parents cannot agree on Custody the Court will conduct what is known as an “Albright Analysis.” Albright v. Albright, 437 So. 2d 1003 (Miss. 1983), is a Mississippi case from the early 1980’s that lists 13 factors that the Court must consider when making an initial custody determination. The specific facts of your case are considered as they relate to each factor and the Court makes a determination as to which factor favors which parent. The Court also determines how to weigh each factor. For instance, the sex of the child while considered, will likely not count as much as the continuity of care for the child. The paramount consideration is “the best interests of the children” A court should determine that by looking at the following factors:
1. Age of the child.
2. Health of the child.
3. Sex of the child.
4. Continuity of care prior to the separation.
5. Which parent has the better parenting skills and the willingness and capacity to provide primary child care.
6. The employment of the parent and the responsibilities of that employment.
7. Physical and mental health and age of the parents.
8. Emotional ties of parent and child.
9. Moral fitness of the parents.
10. The home, community and school record of the child.
11. The preference of the child at the age sufficient to express a preference by law. (Must be at least 12, and it’s ONLY a preference)
12. Stability of home environment and employment of each parent.
13. Other factors relevant to the parent-child relationship.
For additional information please click Dads Have Rights Too!
**Note, marital fault should not be used as a sanction in custody awards. Relative financial situations should not control since the duty to support is independent of the right to custody. Differences in religion, personal values and lifestyles should not be the sole basis for custody decisions.
Matthew Thompson is a family law attorney and will fight for your custody and visitation rights.
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You may also contact Matthew with your family law case, question or concern at (601) 850- 8000
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