In order to create or maintain stability for children during divorce, it may be necessary to enter into a temporary custody arrangement while the divorce is pending. Once the temporary order is established, it will govern such matters as where your child will live, how decisions concerning your child will be made, and the visitation schedule to be followed until the divorce is finalized. If you and your spouse are amicable and can reach an agreement on your own, the court will approve the temporary custody order if it is in your child's best interests. However, if you are unable to agree, the court will hold a temporary hearing on the matter and make the decision for you. Some Mississippi counties may even order you to attend mediation before the hearing takes place.
Forms of Custody
If negotiations and mediation have been unsuccessful, the matter will proceed to a temporary hearing where the court will determine a temporary custody arrangement on your family's behalf. Mississippi recognizes both physical custody and legal custody. Physical custody represents the parental residence where a child will live, and legal custody is a parent's right to make important decisions about the child's welfare, such as matters dealing with school, health and religion. The court can award custody between parents in a variety of ways, including joint legal custody with sole physical custody in one parent, joint legal and physical custody or sole physical custody in one parent with sole legal custody in the other.
Best Interests of the Child
When establishing a temporary custody order, the court will base its decision on what is in the best interests of the child. To do this, the court will evaluate several important factors, commonly referred to as the "Albright Factors" -- named after an influential Mississippi Supreme Court case. These factors include emotional ties between the parents and child, the parents' mental and physical health, stability of each parent's home environment, child's school and community record, and child's wishes if 12 years of age or older. Courts in Mississippi do not like to disrupt children's lives because of divorce, so whatever custody arrangement the court awards during the temporary hearing is likely to carry over into the final decree, especially if it's working well and has become the norm.
Temporary custody orders are not final. They may be changed during the divorce proceedings or when a permanent order is put in place once the divorce is finalized. The court will approve a change if there has been a material change in circumstances that adversely affects the child and changing custody would be in the child's best interests. For example, Mississippi law believes children 12 and older have a right to be heard in custody matters, so if your child decides he wants to change homes midway through the divorce, the court may grant his request if his reasons are valid and reasonable. Another example is domestic violence. Mississippi takes a firm stance on such matters, so if abuse has occurred involving the child or spouses during the proceedings, the court will likely change custody as necessary to protect the child. The abusive parent may be able to regain some custody or visitation rights in the future by participating in a treatment program and counseling.