“Abused child” means a child whose parent, …caused or allowed … sexual abuse, sexual exploitation, commercial sexual exploitation, emotional abuse, mental injury, non-accidental physical injury or other maltreatment to occur.
Legal Definitions – Miss. Code Ann. Sec. 43-21-105:
“Neglected child” means a child: (i) Whose parent… or any person responsible for his care…neglects or refuses, when able to provide necessary care or support, including education (as required by law), medical, surgical, or other care necessary for well-being.
However, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful…
(ii) Who is otherwise without proper care, custody, supervision or support; or
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or
(iv) Who, for any reason, lacks the care necessary for his health, morals or well-being.
The “when able” provision limits the application of neglect when the parent does not have the ability to provide necessities, think sever poverty issues. In that instance it is not willful neglect.
“Abused child” means a child whose parent…has caused or allowed sexual abuse, sexual exploitation, commercial sexual exploitation, emotional abuse, mental injury, non-accidental physical injury or other maltreatment.
However, physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section.
“Abused child” also means a child who is or has been trafficked within the meaning of the Mississippi Human Trafficking Act.
“Sexual abuse” means obscene or pornographic photographing, filming or depiction of children for commercial purposes, or the rape, molestation, incest, prostitution or other such forms of sexual exploitation of children.
“Any person responsible for care or support” means the person who is providing for the child at a given time. This term includes stepparents, foster parents, relatives, non-licensed babysitters or other similar persons responsible for a child and staff of residential care facilities and group homes.
“Commercial sexual exploitation” means any sexual act or crime of a sexual nature, which is committed against a child for financial or economic gain, to obtain a thing of value for quid pro quo exchange of property or for any other purpose.
Abuse and neglect are preventable and/or treatable circumstances if We all Look out for one another. If you see something, say something!
Matthew Thompson and Chad King are child welfare attorneys in the State of Mississippi. They have represented natural parents, foster parents, grandparents, other relatives, fictive kin, children and the Agency (CPS) throughout their decades of practice. (NOT all at the same time).
The irony is it’s only triggered when a court awards “paramount” custody to one parent over the other. “Paramount” custody does not legally exist, not in Mississippi Statutory Code.
Paramount is not a commonly used term in custody agreements and does not appear often in reported or appealed cases.
I know a judge who will ignore this law completely as he does not award “paramount” physical custody.
I get the intent of the law, but execution will be misapplied, not applied or create unintended consequences…as words matter in the law.
Mississippi Courts have not historically favored Joint Custody. A new Bill would require a presumption of Joint Custody is best for a child, that would have to be overcome if a parent doesn’t agree…
Senate Bill 2484 seeks to amend the current custody statute 93-5-24, as follows: “
(2) * * * (a) (i) There shall be a rebuttable presumption that joint custody and equally shared parenting time is in the best interest of the child. If the court does not grant joint custody and/or equally shared parenting time, the court shall construct a parenting time schedule which maximizes the time each parent has with the child and ensures the best interest of the child is met. (ii) The presumption created in subparagraph (i) of this paragraph shall be rebuttable by a preponderance of the evidence. A court that does not award joint custody with equally shared parenting time shall document the reasons for deviating from the presumption. (b) Upon petition of both parents, the court may grant legal and/or physical custody to one (1) parent.”
This is an interesting Bill and in theory how Custody determinations should begin anyway. However, it goes further than current law in creating a rebuttable presumption and then requiring documenting the reasons for deviating from the presumption if the court does not grant joint physical custody and/or equally shared parenting time.
Matthew Thompson is a child custody lawyer and believes mom and dad coparenting and working together is what’s best for the child. A set schedule based on the child, with flexibility when warranted is what is best…
Supervised visitation is Ordered in rare circumstances.
It is typically when the parent has had significant issues with illegal substances, run-ins with law enforcement, severe defiance of prior Orders, mental health issues or present as a danger to the child. (Or a combo of the above)
These parents, of course, have the right to see their child, but the Court’s obligation is to make sure that the child is safe, at all times.
(a) A person commits an offense if the person takes or retains a child younger than 18 years of age:
(1) when the person knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody;
(2) when the person has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out of the geographic area…without the permission of the court and with the intent to deprive the court of authority over the child; or
(3) outside of the United States with the intent to deprive a person entitled to possession of or access to the child of that possession or access and without the permission of that person.
(b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.
(c) It is a defense to prosecution under Subsection (a)(2) that the actor returned the child to the geographic area…within three days after the date of the commission of the offense.
(c-1) It is an affirmative defense to prosecution under Subsection (a)(3) that:
(1) the taking or retention of the child was pursuant to a valid order providing for possession of or access to the child; or
(2) notwithstanding any violation of a valid order providing for possession of or access to the child, the actor’s retention of the child was due only to circumstances beyond the actor’s control and the actor promptly provided notice or made reasonable attempts to provide notice of those circumstances to the other person entitled to possession of or access to the child.
(c-2) Subsection (a)(3) does not apply if, at the time of the offense, the person taking or retaining the child:
(1) was entitled to possession of or access to the child; and
(2) was fleeing the commission or attempted commission of family violence, as defined by Section 71.004, Family Code, against the child or the person.
(d) An offense under this section is a state jail felony…
What are the penalties for interference with child custody? Up to two years in jail, A fine of up to $10,000, and Loss of custody.
There’s scuttlebutt that MS may consider a parental interference law as a crime in future sessions.
Right now the only real recourse is a contempt action in Chancery court in Mississippi. contempt doesn’t have the same “teeth” that a criminal offense would.
Matthew Thompson is a child custody lawyer in Mississippi and supports custody law changes that protect parents rights and common sense.
In 2023, the Mississippi Legislature enacted changes in child welfare, enacting a Foster Parents’ Bill of Rights. But, what does this mean…? Stay tuned for a multi-part blog diving into the FPBOR and what it means AND what it doesn’t mean…
Foster Parents’ Bill of Rights and Responsibilities
The Department of Child Protection Services shall extend the following rights to persons who provide foster care and relative care:
(a) A clear understanding of their role while providing care and the roles of the birth parent(s) and the placement agency in respect to the child in care;
(b) Respect, consideration, trust and value as a family who is making an important contribution to the agency’s objectives;
(c) Notification of benchmarks that will be required of the foster parent such as appointments, home visits with department personnel, visitations of the child at school and meetings between department personnel and the child’s family;
(d) Advance notice of information regarding scheduled meetings other than meetings where the Department of Child Protection Services personnel or social workers are going to the foster parent’s home for site visits, appointments and court hearings concerning the foster child;
(e) The opportunity to communicate with professionals who work with the foster child including therapists, physicians and teachers who work directly with the child;
(f) The opportunity to communicate and collaborate, without threat of reprisal, with a department representative when further educational services are needed to ensure the child’s educational needs are met, including services such as an Individualized Educational Plan (IEP), tutoring, occupational therapy, speech therapy and after-school programs;
(g) The opportunity to attend all IEP meetings, along with the department worker, at the child’s school as long as the child is in custody and receiving special educational services;
(h) The opportunity to communicate with the foster child’s guardian ad litem;
(i) The opportunity to attend all youth court hearings involving a foster child occurring while that child is placed in their care without being a party to the youth court action, unless the youth court determines that any foster parent should not be present. Foster parents may attend all youth court hearings and have legal counsel attend and observe with them if the child’s permanent plan is adoption by the foster parents, unless the youth court determines that any foster parent should not be present. Foster parents may communicate with the guardian ad litem in writing at any time. Foster parents may ask to be heard concerning the best interest of the child at any disposition or permanency hearing;
(j) When the dates of the permanency hearing and permanency review hearing have been set by the youth court, and if necessary to fulfill the notice requirements, the judge or the judge’s designee shall order the clerk of the youth court to issue a summons to the foster parents to appear personally at the hearings as provided by Section 43-21-501;
(k) The opportunity to request from the youth court permission to communicate with the child’s birth family, previous foster parents of the child, and prospective and finalized adoptive parents of the child, without the threat of reprisal. However, this right creates no obligation of the birth family, previous foster parents, or prospective and finalized adoptive parents to communicate in return;
(l) Involvement in all the agency’s crucial decisions regarding the child as team members who have pertinent information based on their day-to-day knowledge of the child in care and involvement in planning, including, but not limited to, individual service planning meetings, foster care review, individual educational planning meetings, and medical appointments;
(m) The opportunity to participate in the planning of visitations between the child and the child’s siblings, parents or former guardians or other biological family members which have been previously authorized by the youth court. Visitations shall be scheduled at a time and place meeting the needs of the child, the biological family, and the foster family.
Recognizing that visitation with family members is an important right of children in foster care, foster parents shall be flexible and cooperative with regard to family visits but shall retain the right to reasonable advance notice of all scheduled visitations;
(n) The ability to communicate with department personnel or representatives twenty-four (24) hours a day, seven (7) days a week, for the purpose of aiding the foster parent;
(o) A comprehensive list of all resources available to the foster parent and child, including dental providers, medical providers, respite workers in the area, day cares, and methods for submitting reimbursements;
(p) Support from the family protection worker or the family protection specialist in efforts to do a better day-to-day job in caring for the child and in working to achieve the agency’s objectives for the child and the birth family through provision of:
(i) A copy of the “Foster Child Information Form” and all other pertinent information about the child and the birth family, including medical, dental, behavioral health history, psychological information, educational status, cultural and family background, and other issues relevant to the child which are known to the department at the time the child is placed in foster care prior to the child’s placement with a foster parent or parents. The department shall make reasonable efforts to gather and provide all additional current medical, dental, behavioral, educational and psychological information reasonably available from the child’s service providers within fifteen (15) days of placement. When the department learns of such information after fifteen (15) days of placement, the department shall communicate such information to the foster parent as soon as practicable;
(ii) An explanation of the plan for placement of the child in the foster parent’s home and the ongoing and timely communication of any necessary information which is relevant to the care of the child, including any changes in the case plan;
(iii) Help in using appropriate resources to meet the child’s needs, including counseling or other services for victims of commercial sexual exploitation or human trafficking;
(iv) Direct interviews between the family protection worker or specialist and the child, previously discussed and understood by the foster parents;
(v) Information regarding whether the child experienced commercial sexual exploitation or human trafficking;
(vi) Information related to the Healthy, Hunger-Free Kids Act of 2010. Foster parents shall protect the confidentiality of the child by working directly with a designated school official to complete the application for free lunches.
(q) The opportunity to develop confidence in making day-to-day decisions in regard to the child;
(r) The opportunity to learn and grow in their vocation through planned education in caring for the child;
(s) The opportunity to be heard regarding agency practices that they may question;
(t) Information related to all costs eligible for reimbursement, including:
(i) Reimbursement for costs of the child’s care in the form of a board payment based on the age of the child as prescribed in Section 43-15-17 unless the relative is exempt from foster care training and chooses to exercise the exemption; and
(ii) Reimbursement for property damages caused by children in the custody of the Department of Child Protection Services in an amount not to exceed Five Hundred Dollars ($500.00), as evidenced by written documentation.
The Department of Child Protection Services shall not incur liability for any damages as a result of providing this reimbursement.
(12) The Department of Child Protection Services shall require the following responsibilities from participating persons who provide foster care and relative care:
(a) Understanding the department’s function in regard to the foster care and relative care program and related social service programs;
(b) Sharing with the department any information which may contribute to the care of children;
(c) Functioning within the established goals and objectives to improve the general welfare of the child;
(d) Recognizing the problems in home placement that will require professional advice and assistance and that such help should be utilized to its full potential;
(e) Recognizing that the family who cares for the child will be one of the primary resources for preparing a child for any future plans that are made, including return to birth parent(s), termination of parental rights or reinstitutionalization;
(f) Expressing their views of agency practices which relate to the child with the appropriate staff member;
(g) Understanding that all information shared with the persons who provide foster care or relative care about the child and his/her birth parent(s) must be held in the strictest of confidence;
(h) Cooperating with any plan to reunite the child with his birth family and work with the birth family to achieve this goal; and
(i) Attending dispositional review hearings and termination of parental rights hearings conducted by a court of competent jurisdiction, or providing their recommendations to the guardian ad litem in writing.
(13) The department shall develop a grievance procedure for foster parents to raise any complaints or concerns regarding the provisions of Section 43-15-13(11) or (12).
(14) Nothing in this section shall be construed to create a private right of action or claim on the part of any individual, the department, or any child-placing agency.
Matthew Thompson is a child custody attorney in Mississippi and routinely presents at Guardian Ad Litem training and has presented at Foster Parent Training.
House Bill 1304 seeks to amend section 93-5-24 to allow JOINT CUSTODY to be awarded in any type of divorce, requires the court to make written findings on the record regarding its custody decision, and order parenting time that favors both parents equally.
I say weird because, #1 the court already makes written findings in contested custody matters, #2 if its agreed/settled there’s no need for written findings, #3 if the court finds one parent is the better parent and therefore better for the children this law still requires equal time… what’s the point in the custody determination? #4 The statute states if a parent is awarded “paramount” physical custody. There is no “paramount” physical custody under our law.
Perhaps, this is a misunderstanding or intentional, I am unsure…
Below is the specific language.
(2) Joint custody may be awarded where irreconcilable differences or any other ground is the ground for divorce * * *.
(3) * * * After a trial on the merits where custody is in dispute, the court shall make a finding on the record, if the court awards either parent paramount physical custody over the other parent, the court shall order a parenting time schedule that favors both parents equally subject to the best interests of the child.
My prediction? This BILL is DOA. Dead on Arrival.
Matthew Thompson is a child custody lawyer and handles matters regarding physical custody and perhaps even “paramount” physical custody…
A child testifying is an often discussed issue between parents and attorneys in child custody cases.
When parents are getting a divorce the child usually knows more than their parents think. The child most likely witnessed fights, bad conduct and sometimes even dangerous conduct.
In Mississippi law, the leading authority is Jethrow vs. Jethrow, 571 So.2d 270 (Miss. 1990). This case lays the groundwork that the Court should use when assessing child testimony. The basic premise is, as follows;
A child witnesses of tender years*, 12 and under for testimony purposes, testifying is subject to the discretion of the Judge. (*this tender years is different than the “tender years” doctrine favoring a mother when a child is very young, under 2-3).
Before allowing such testimony the Judge “should satisfy himself that the child has the ability to perceive and remember events, to understand and answer questions intelligently, and to comprehend and accept the importance of truthfulness.”
Before excluding the testimony of a child witness of tender years in a divorce proceeding, the chancellor at a minimum should follow the procedure required by Crownover v. Crownover, 33 Ill.App.3rd 327, 337 N.E.2d 56 (1975):
The first hurdle is whether the child is competent to testify.
The Judge should confer in camera (meaning in the Judge’s chambers/office) with the child and determine whether or not the child’s testimony should be heard
The Judge has considerable discretion in conducting proceedings of this type, meaning it’s a judgment call.
The court should not, however, reject outright proposed testimony of a child in custody proceedings, where the omission of such crucial testimony might be harmful to the child’s best interests.
The trial court should take great pains to have an in camera conference with the child to determine the competency of the child,
and determine the competency of any evidence which the child might present.
The court should determine whether the best interests of the child would be served by permitting her to testify, or
Whether the child should be sheltered from testifying and being subjected to a vigorous cross-examination.
The Judge should report the essential material matters developed at the in camera conference on the record.
The Court should state the reasons for allowing or disallowing the testimony of the child, and
The Court should note the factual information which the court developed from the conference with the child which would be considered by the court in its ultimate determinations in the case.
Generally, the testimony of a child called as a witness in a divorce case should not be excluded for reasons other than competency, or evidentiary defects, or for the protection of the child. (24 Am.Jur.2d, Divorce and Separation, A 415). There should not be a summary refusal to inquire as to the competency of the child to testify and also of the competency of the proposed testimony of such child in a change of custody proceeding.
“We reiterate that parents in a divorce proceeding should if at all possible refrain from calling any of the children of their marriage, of tender years at least, as witnesses, and counsel should advise their clients against doing so except in the most exigent cases. The reason and wisdom behind this precaution need no amplification. We also hold, however, as we must that no parent can be precluded from having a child of the marriage in a divorce proceeding testify simply because of that fact.”Jethrow v. Jethrow, 571 So.2d 270, 274 (Miss. 1990)(emphasis added).
A child testifying should be avoided, however if it cannot be avoided the above process will likely be used by the Court to determine if and how the child will testify.
Matthew Thompson is a Child Custody Litigation Attorney in Mississippi.
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