CHILD CUSTODY

What is a Child Custody Agreement?

In the majority of divorces with minor children, the parents are able to agree to the custody arrangement without going to court. This usually happens through informal and formal negotiations between the parents and their lawyers. Mediation can also be helpful in resolving disagreements over child custody and parenting after the divorce is final.

The Child Custody Agreement is a written customized agreement between the parents that becomes an enforceable part of the judgment for divorce. The terms of these agreements can vary greatly depending on the particulars of each situation. Typically they will address: (1) where the children will live; (2) visitation schedules; and (3) specific financial support.

If the parents are unable to agree, then the court will make a ruling on child custody issues after hearing the evidence and testimony presented by both sides.

What is the difference between physical and legal custody?

Custody of a child consists of (1) physical and (2) legal custody. Physical custody refers to the parent that the child will actually live with. Legal custody refers to the parent who has ultimate decision authority when it comes to the child’s welfare.

What presumptions exist?

Joint Custody is presumed to be in the best interest of the child. Joint Custody is normally awarded when requested by both parents. However, many judges will not award joint custody if either parent claims that co-parenting is not possible.

Parental equality is also presumed. At the start of any custody proceeding the mother and father are both entitled to custody of their children. The natural parent is also favored as a custodian of their child. Custody may only be awarded to a third person if the parent is found to be unfit and/or has abandoned the child. There is a presumption that custody should not be granted to a parent with a history of family violence.

How are child custody disputes resolved?

The judge is charged with making a determination as to what is in the child’s best interest. Each case is decided on its own facts with the judge having significant discretion in making a final decision.

The seminal Mississippi child custody case is Albright v. Albright, 437 So.2d 1003 (Miss. 1983). In this case the Mississippi Supreme Court set out the following twelve factors (“the Albright factors”) which are to be used when deciding custody questions :

1. Age, health and sex of the child;
2. Which parent had continuing care of the child prior to separation;
3. Which parent has the best parenting skills;
4. Which parent has the willingness and capacity for primary child care;
5. Each parent’s employment responsibilities;
6. Parent’s age and physical and mental health;
7. Parent and child emotional ties;
8. Moral fitness;
9. Child’s home, school and community records;
10. At the age of twelve the child’s preference;
11. Stability of home environment; and
12. Any other equitable factor.

In awarding custody, the judge lists each factor, decides which factors apply and discusses how each factor relates to each parent while weighing the credibility of the testimony and weight of the evidence.

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