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Child Custody and Divorce in Mississippi

Children are probably affected more than anyone else by divorce. It is important for you and your spouse to present a unified front. Upon contemplation of separation, you and your spouse need to work out the immediate issues concerning the children. The most obvious decision is with whom your children are going to live. Child custody issues are the most heated and emotional forms of litigation, and they should be avoided if possible. If a custody dispute is not avoidable, a simple cost benefit analysis goes completely out the window. I would never advise someone to spend $2.00 in hopes to receive $1.00, but it is impossible to put a dollar figure on what you believe is in the best interest of your children. Get ready to spend some serious money on attorney's fees and litigation costs. When divorce or a separation is on the horizon, tell your children together, and anticipate and be prepared to answer the questions that the children may have. If you can avoid litigation, it would certainly save you many sleepless nights and years of potential conflict with your child's other parent. Remember the story of King Solomon? He announced that he would divide a baby subject to dispute between two supposed parents. The real mother begged the wise king not to hurt the child. There are many forms of alternate dispute resolution options available to modern parents that we can explore to avoid custody disputes.

If a custody dispute is unavoidable, we may need to retain the services of an expert psychologist or counselor who is trained to conduct custody evaluations. Psychologists can be very helpful, but they can also be very confusing. It is generally not a bad idea to visit with a mental health professional when faced with divorce. They can also be helpful to your children, regardless of whether or not custody is disputed. Many of our state school systems have programs for children of divorced families. One such program is called Banana Splits. These are excellent ways for your children to interact with other kids of divorced parents.

There are two types of custody in Mississippi- legal and physical. Legal custody is the cerebral form of custody. It entails the decision-making responsibilities in parenting. It involves your children's health, education, extracurricular activities, religious training and every other decision that a parent makes. If your child was in a terrible accident and was placed on life support, the person with legal custody would make the decision as to whether or not your child would be kept on the breathing machine. Physical custody simply entails with whom the child lives. When weighing custody cases, the best interest of the children is controlling; the Judge is also to consider the following issues known as the Albright factors:

  • The age, health and sex of the child;
  • Continuity of care;
  • The parenting skills of each parent and his or her willingness and capacity to provide primary child care;
  • Employment of each parent and the responsibilities of that employment;
  • The physical and mental health of the parents;
  • The emotional ties between parent and child;
  • The moral fitness of the parents;
  • The home, school and community record of the child;
  • The preference of a child of the age sufficient to express a preference by law;
  • The stability of the home environment; and
  • Other factors relevant to the parent-child relationship.

Our laws specifically state that there is no advantage given to the mother over the father in child custody situations, but in reality, the mother will usually have the advantage. The paramount consideration is the best interests of the child, and the Judge can award both parents with physical and legal custody or either parent with one or the other form of custody. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority. Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including, but not limited to, medical, dental and school records, shall not be denied to a parent because the parent is not the child's custodial parent. The school may attempt to deny you this information, and if they do, let me know immediately.

It is important for you to keep the lines of communication open with your spouse or former spouse. Do not argue in front of your children and do not use your children as messengers or spies. You are your children's parent, not their friend. Act like it. Do not tell your children to keep secrets from their other parent, and do not criticize your former spouse in the presence of your children. It is also a very bad idea to compare your children to their other parent in a negative way. Do the best that you can to make transitions of custody smooth and conflict free. Talk about adult things with your ex-spouse outside the presence of your children. I have found that e-mail is a great way for divorcees to communicate with former spouses. You can both have a record of exactly what was said and they can be easily printed to prove that you said what you say you did.

I encourage my clients to allow open and liberal visitation over and above what the divorce decree or separation agreement provides. It is healthy for your former spouse to be an active part of the lives of their children. I encourage non-custodial parents to get involved in the children's extracurricular activities. If you are the non-custodial parent, do not miss visitation with your children and give religious attention to all of your financial obligations. Treat visitation and child support as the two most important obligations that you have. Pay your child support first and your other bills second. Whatever amount of child support you are ordered to pay will not be enough to raise your children, so pay child support timely each month.

Your children will play you against your former spouse. Be the adult. Do not attempt to separate siblings and maintain family traditions. Nurture your child, but do not be overprotective.

If you are in a relationship with a new person, do not introduce your children to this person until after the divorce and after they have adjusted to the separation. If the divorce is pending, the Chancellor will have a field day on you if you have made your children witnesses to your adultery. Do not spend the night with your lover when the children are in your custody until you are married. You live in Mississippi, the center of the Bible belt. Remember, the Chancellor could care less about you, but he does value your innocent children.

Many of the ideas in this section are based on experience, but some came from various readings and speaking with different counselors. I highly suggest that you read Making Divorce Easier on Your Child by Nicholas Long and Rex Forehand. Many of the ideas in this section came from that book.


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The Mississippi court determines child custody based on the best interests of the child. The court can award sole or joint custody, and if the child is 12 years old or older, the court considers the wishes of the child.
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