Types of Custody
Custody agreements or orders establish two forms of custody: legal and physical. Legal custody governs who has decision-making authority over the child. In joint legal custody arrangements, parents share equally in decisions regarding the child's health, religion, education and other important areas. In joint physical custody arrangements, parents share physical time with their child. Joint physical custody does not necessarily mean that both parents get equal time. The specific arrangements depend entirely on the best interests of the child, but joint physical custody always means that each parent gets substantial time with the child rather than just a few days of visitation.
Child's Best Interests
Mississippi law requires that all preliminary custody filings have a parenting plan attached. If both parents request joint custody, the legal presumption is that joint custody is in the best interests of the child. Judges may also determine joint custody is in a child's best interests if both parents are competent caregivers, the child has a strong relationship with both parents or both parents were heavily involved with the child prior to the divorce. In very high-conflict divorces, judges may not believe it is in a child's best interests for the parents to share custody because joint custody increases parents' contact with one another. However, high conflict does not in itself preclude joint custody.
Most divorce cases in Mississippi ultimately settle before going to trial. Judges commonly order mediation when there are children involved and parents can't agree on custody. If one parent wants joint custody and the other wants sole custody, the mediator will hear both sides, inform the parties of the weaknesses in their case and encourage parents to reach a settlement. If parents reach a settlement, it will become legally binding when the judge signs it.
If parents cannot reach a settlement, their case will proceed to trial. At trial, parents can call witnesses and submit evidence the custody arrangement they desire is in their child's best interests. Parents may choose to settle the dispute any time before a judge issues an order and, if parents mutually agree, may change their custody agreement after the judge issues the order. In some cases -- such as when one parent has been accused of abuse or when the order specifically requires judicial approval -- parents must submit their new custody agreement to the court and receive the judge's permission.