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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)
What kinds of custody are there?
After considering the best interests of the child, the judge (chancellor) can order one or more types of custody arrangements.
| If the chancellor gives you… | Then that means… |
|---|---|
| joint physical custody | each parent has:
|
| joint legal custody | parents share the right and responsibility to make decisions about the child’s health, education, and welfare.
Note: Parents who have joint legal custody must share information about their child with each other. They also have to communicate and work together when making important decisions.2 |
| joint physical and legal custody | parents share both the care of the child and decision-making rights. This is also referred to as “joint custody.”3 |
| sole physical custody | the child lives the majority of the time with one parent but can have visitation with the other.4 |
| sole legal custody | one parent has decision-making rights and responsibilities regarding the health, education, and welfare of the child.5 |
The chancellor can choose any combination of these arrangements that they believe will be best for your child. So, for example, they could grant:
- sole physical and legal custody to one parent;
- joint physical custody to both parents and sole legal custody to one parent; or
- sole physical custody to one parent and joint legal custody to both.6
1 Miss. Code § 93-5-24(5)(c)
2 Miss. Code § 93-5-24(5)(e)
3 Miss. Code § 93-5-24(1)(a), (5)(a)
4 See Miss. Code § 93-5-24(1)(d), (5)(b); see also Cox v. Moulds, 490 So. 2d 866, 870 (Miss. 1986) (holding that a non-custodial parent is presumptively entitled during reasonable times to overnight visitation with the children)
5 See Miss. Code § 93-5-24(1)(d), (5)( d)
6 Miss. Code § 93-5-24(1)(b), (1)(c), (1)(d)
In what court can I file my custody case?
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
What are some of the pros and cons of getting a custody order?
There are many reasons people choose not to file for custody. Some parents decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents fear that starting a court case will provoke the other parent. They may worry that the other parent will fight for more custody or visits than they are comfortable with.
Even if the other parent is not involved with your child now, they may become involved when a case is filed in court. Also, if the other parent fights for custody, the case may drag on for a long time. This can be emotionally and financially draining. When you are in court for custody, the chancellor will look into many aspects of your personal life. For example, the chancellor may examine your mental health, criminal record, substance abuse issues, and relationships. You may prefer to keep these things private.
On the other hand, a custody order can set out what legal rights, which can be a benefit. A custody order can give you the legal rights to make decisions about your child and have your child live with you. Without an order, both parents may share these legal rights, even if one parent takes care of the child daily. The exception to this is when paternity has not been legally established. However, if you file for custody, the other parent may also request these rights. If you and the other parent don’t agree, the chancellor will decide which custody arrangement is best for your child.
How is paternity established?
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)
