Tag Archives: Physical custody

Child Custody In Mississippi

There are 2 types of custody in Mississippi Chancery Courts.download.jpg

  1. Legal custody refers to the decision-making rights regarding your child’s health, education and general welfare.

Legal custody, most commonly awarded as “Joint Legal Custody,” requires that each parent keep the other parent reasonably informed of the child’s goings on. This includes not only health, education, and general welfare, but also school and activity schedules, medical appointments and any major matter regarding the child’s life

It requires that parents communicate and cooperate when it comes to making decision about the well-being of the child. It certainly includes informing the other parent if a move is anticipated.

Legal custody includes sharing the status of the child’s well-being and location in emergency situations.

If there is going to be a fight in a custody case it will be over Physical Custody.

2.) 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 child.

A court determines 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 Child Custody attorney in Mississippi and will fight for your custody and visitation rights.

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Where Does Your Child Live? Child Custody

“I have Joint Custody.”

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I hear this often,”…but I have Joint Custody!” However, the Court Order determines what you have.

There are 2 types of Custody in Mississippi Law. Legal Custody and Physical Custody.

Legal Custody is the decision-making right regarding the child related to their health, education and general welfare. It requires the parents to keep the other reasonably informed of the child’s goings-on.  It is commonly Joint Legal Custody, but this has no bearing on the schedule.

Physical Custody is where the child resides on a primary basis. Within Physical Custody there are typically 2 types. 1) One parent has Physical Custody subject to the other parent’s rights of visitation, or 2) Joint Physical Custody. Joint Physical Custody does not require it be a 50/50 time split, however it is defined as each parent spending a substantial amount of time with the child.

Joint Legal allows access to information and creates an obligation for consultation regarding issues concerning the child. Joint Physical is “Joint Custody.”

Matthew Thompson is a Mississippi Child Custody attorney.

Follow the blog: BowTieLawyer Visit the websiteThompson Law Firm You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Guilty of Domestic Violence? No Custody.

Divorce, family conflict and high emotion can sometimes lead to domestic violence, and sometimes domestic violence leads to high emotion, family conflict and divorce.  But, in addition to Domestic Violence being a crime, the perpetrator of family violence is presumed to be unfit for custody by law.

Nutdanai/freedigitalphotos.net

Mississippi Law provides that a parent with a history of family violence shall not have custody.  MCA Section 93-5-24 (9) applies to “every proceeding where the custody of a child is in dispute.”   The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered.  Miss. Code Ann. § 93-5-24 (9)(a)(1).

Once proof of family violence is offered and findings of family violence is made by the court, the following must be enforced by the Court.

  1. That “there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in…physical custody of a parent who has a history of perpetrating family violence.”
  2. That the Court “shall make written findings to document…why the presumption was or was not triggered.
  3. That the presumption… be rebutted only by a preponderance of the evidence.
  4. That the six factors set forth in the statute be considered in determining whether the presumption was overcome. Miss. Code Ann. § 93-5-24 (9)(a)(iii)(1-6)  
    •  1.  Whether the perpetrator demonstrated that gaining custody …is in the best interest of the child because of the other parent’s absence, mental illness, substance abuse or such other circumstances;

    • 2.  Whether the perpetrator  completed a  treatment program;

    • 3.  Whether the perpetrator  completed  alcohol or drug abuse counseling;

    • 4.  Whether the perpetrator completed a parenting class;

    • 5.  If the perpetrator is on probation, whether he or she is restrained by order, and whether he  has complied with conditions; and

      6.  Whether the perpetrator has committed any further acts of domestic violence.

  5. That the Court “make written findings…why the presumption was or was not rebutted.”
  6.  That if both parents had a history of family violence, that custody “be awarded solely to the parent less likely to continue to perpetrate family violence.”
  7. That the Court “award visitationonly if the court finds that adequate provision for the safety of the child and the parent who is a victim can be made.”

It is error for the  Court to not address the statutory requirements upon a showing of family violence.  Lawrence v. Lawrence, 956 So.2d 251 (Miss. App. 2006).

It is clear that the statute applies to all child custody matters.  93-5-24 (9) applies to “every proceeding where the custody of a child is in dispute.” Id.   Additionally, the statute contains no requirement that a party ask for its application. Instead, the statute requires a mandatory duty to make findings as to whether or not the presumption was or was not triggered by the history of family violence.  Lawrence v. Lawrence, 956 So.2d 251 (Miss. App. 2006).

Matthew Thompson is a family law attorney in Mississippi and cautions clients that violence makes everything worse.

Follow the blog: BowTieLawyer Visit the website: Thompson Law Firm

You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@wmtlawfirm.com.