Custody is the legal responsibility for the care and control of a child under 18 years of age. The court may give custody to one or both parents. There are two types of custody: legal and physical.

Physical custody refers to the periods of time when the child lives with one parent or that parent is responsible for the child’s care.¹

Legal custody means decision-making rights and responsibilities related to the child’s health, education, and welfare.²

¹ Miss. Code § 93-5-24(5)(b)
² Miss. Code § 93-5-24(5)(d)

In Mississippi, only the chancery court has the power (jurisdiction) to make decisions about family law matters.¹ All custody cases must be filed in chancery court. The judge who hears your case will be called a chancellor.² You can learn more about the different types of courts in your state from the Mississippi Bar.

¹ MS Const. Art. 6, § 159; see also Miss. Code § 93-5-7
² See Miss. Code § 9-5-1

There are multiple ways that legal fatherhood (paternity) can be established in Mississippi.

If the parents were married to each other when the child was conceived or born, paternity is automatically established.¹

If the parents were not married to each other when the child was conceived or born, then they need to do something to establish paternity. This can be done:

• involuntarily - either parent or the Mississippi Department of Human Services files a complaint to establish paternity, which asks the court to order DNA testing;² or
• voluntarily – if both parents agree who the child’s father is, they can sign a sworn acknowledgement of paternity and file it with the Bureau of Vital Statistics of the Mississippi State Department of Health.³

¹ See Mississippi State Bar website; see also Miss. Code § 93-9-28(1)
² Miss. Code § 93-9-21
³ Miss. Code § 93-9-28(1)

Before a judge (chancellor) can use family violence as a factor in a custody case, you will first need to prove what has happened. The chancellor may find that there is a history of committing family violence if:

• one incident of family violence has caused you serious bodily injury; or
• there has been a pattern of family violence against you, a family member, or a household member.¹

If the chancellor finds that a parent has a history of committing family violence, they will assume that it is not in the child’s best interest for that parent to have sole custody, or joint legal and physical custody.¹ This assumption is called a “rebuttable presumption,” which means that the abusive parent can present evidence to try to change the chancellor’s mind.

To make this decision, the chancellor will consider several factors, including whether the abusive parent:

• has shown that giving them sole or joint physical or legal custody is in your child’s best interests. This could be due to your:
  
  • absence;
  • mental illness;
  • substance abuse; or
  • another situation that affects your child’s best interests;
• has successfully finished a batterer’s treatment program, an alcohol or drug abuse counseling program, or a parenting class they were ordered to attend;
• is on probation or parole;
• has a restraining order issued against them, and whether or not they have complied with its terms and conditions; and
• has committed any other acts of domestic violence.²

A chancellor may also grant visitation to the abusive parent if they believe you and your child can be protected through some restrictions in the visitation order. For a list of a protections you can ask for, see Can a visitation order help protect domestic violence victims?

¹ Miss. Code § 93-5-24(9)(a)(i)
² Miss. Code § 93-5-24(9)(a)(iii)

Parental rights in Mississippi can be terminated for various reasons, some of which are related to domestic violence or sexual abuse. Parental rights could be terminated if the other parent:

• is not meeting your child’s needs, including food, clothing, shelter, or medical care;
• is not communicating with or visiting your child;
• has been abusive or neglectful, and this has made your child dislike them;
• is suffering from alcoholism or other drug addiction and has not successfully completed treatment;
• has been abusive towards your child or another child, and having future contact with that parent is undesirable;
• has been convicted of any of the following offenses against any child:
  
  • rape;
  • sexual battery;
  • touching a child for lustful purposes;
  • exploitation of a child (as described under sections 97-5-31 through 97-5-37);
  • felonious abuse or battery of a child;
  • carnal knowledge of a step or adopted child or a child of a cohabitating partner; or
  • human trafficking of a child; or
• has been convicted of:
  
  • murder or voluntary manslaughter of their child;
  • aiding, abetting, attempting, or soliciting, or conspiring to commit murder or voluntary manslaughter of their child;
  • felony assault that resulted in “serious bodily injury” to their child.¹

If you’re thinking about terminating the other parent’s rights, Mississippi law says that you might be able to file the case yourself.² However, you might want to talk to a Mississippi lawyer for advice first. These cases can be difficult and hard to win. If the other parent can’t afford a lawyer, the court will appoint one for them. Your child can get a lawyer appointed too, but you can’t.³ Also, you may want to ask a lawyer how terminating the other parent’s rights could affect your child’s legal rights. For example, your child might lose the right to inherit property or receive child support.

¹ Miss. Code § 93-15-121
² Miss. Code § 93-15-107(1)(a)
³ Miss. Code §§ 93-15-107(1)(c); 93-15-113(2)(b)

The judge (chancellor) will look at many factors to decide what’s in the best interest of your child, including:

• your child’s age, health, and sex;
• which parent provided most of the day-to-day care for your child before the separation;
• which parent has the best parenting skills;
• which parent is willing and able to provide the majority of child care;
• each parent’s employment, job stability, and work responsibilities;
• each parent’s age, and their physical and mental health;
• the emotional ties between the parents and child;
• the “moral fitness” of each parent;
• your child’s home, school, and community record;
• your child’s wishes, if they are old enough to share their opinion;
• the stability of each parent’s home environment; and
• any other relevant factors.¹

¹ Albright v. Albright, 437 So. 2d 1003 (Miss. 1983)

If you’re worried about leaving your child alone with the abuser, you might think about asking the judge (chancellor) to order supervised visits. However, there’s a lot to consider when deciding if this is the right choice for you.

Usually, supervised visits are only ordered for a short time, but this may be different depending on where you live and who your chancellor is. The chancellor might order a professional to watch the visits, or they might have a relative or other person known to either parent agree to be around during the visits to “keep an eye” on things. If the supervisor tells the chancellor that the visits are going well, the visits might become unsupervised. By the end of the case, the other parent may be allowed to visit more often and for longer than they did before you went into court. They might even get some form of custody.

If you’re already in court because the abusive parent asked for visitation or custody, it may make sense to ask for supervised visits if you have a good reason. It depends on your situation.

However, if there’s no court case already going on, it’s a good idea to talk to a lawyer before you start a case to ask for supervised visits. Based on what’s happening in your case, a local lawyer can explain:

• what you need to prove to get supervised visits; and
• how long supervision might last.

If your child is in immediate danger from the abuser, you may need to start a case to ask for custody and supervised visits to protect them. To find out what’s best for your situation, you can look for legal advice using our Mississippi Finding a Lawyer page.

Before you file for custody, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.

However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, they may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.

Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.

You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page.

In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.

The legal paperwork that starts a custody case is called a petition. You may file your custody petition in the chancery court. Generally, you will file in the county where the child lives.

The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.

Sometimes, non-parents can also file for custody or visitation rights. To find out about filing for visitation as a grandparent, go to Can a grandparent file for visitation? or talk to a lawyer.

The custody petition forms you need may be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our Mississippi Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

Depending on what’s going on with your child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the chancellor. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for a protective order and get temporary custody as part of the protective order.

After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.

There are two different ways that you might be able to get a final custody order:

• reaching an agreement; or
• going to trial.

Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge (chancellor) approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.

Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the chancellor will make all the decisions about custody based on what they believe is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you’re representing yourself, you can learn more about how to do this in our At the Hearing section.

Your custody order will usually have rules for your specific situation. It might say that you have to get permission from the other parent or the judge (chancellor) before you can make any big changes to your child’s living situation. For example, it might be a big change if you want to:

• permanently move out of state;
• move within the state, but far enough away that it would affect the other parent’s visitation schedule, or
• change your child’s school.

It’s a good idea to get legal advice from an attorney first, even if the other parent agrees that you and the children can move. If you don’t have an attorney, you can go to our Mississippi Finding a Lawyer page to look for one.

In Mississippi, parents have the right to information and records about their children even if they don’t have custody. Unless their parental rights have been terminated, non-custodial parents are allowed to access their children’s medical, dental, and school records. They may be entitled to other kinds of records and information too.¹

¹ Miss. Code §§ 93-5-24(8); 93-5-26

Sometimes, a parent in the military may need to temporarily move away from home as part of their job. We will use the term deployment, but this might also apply if the parent is moving for temporary duty or other mobilization orders.

If the deploying parent has sole or primary physical custody, the judge can issue a temporary order if:

• the parent is being deployed to somewhere far from home; and
• deploying has a major effect on that parent’s ability to carry out their custodial responsibilities.¹

The temporary custody order will end within ten days of the parent’s return. The order will require that:

• the deployed parent gives the non-deployed parent timely information about their leave schedule; and
• the non-deployed parent:
  
  • makes the child “reasonably available” to the deployed parent during their leave; and
  • helps the child stay in touch with the deployed parent through phone calls, video chats, and e-mail.²

If the deploying parent has visitation rights, some or all of their visitation rights can be given to a family member if:

• the parent will be deployed to somewhere far from home;
• deploying has a major effect on their ability to use their visitation rights; and
• the family member has a “close and substantial relationship” to the child.³

For these purposes, a “family member” could be anyone related to the service member by blood or marriage. This may include a step-parent, grandparent, aunt, uncle, or adult sibling, among others.⁴

¹ Miss. Code § 93-5-34(3)
² Miss. Code § 93-5-34(3)(a), (3)(c)
³ Miss. Code § 93-5-34(4)
⁴ Miss. Code § 93-5-34(2)(d)