Child Custody

What is a Child Custody Agreement?

In most divorces with minor children, the parents can agree to the custody arrangement without going to court. This usually happens through negotiations between the parents and their lawyers. Mediation can also help resolve 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 divorce judgment. 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 cannot agree, the court will rule on child custody issues after hearing the evidence and testimony presented by both sides.

What is the difference between physical and legal custody?

Child custody consists of (1) physical and (2) legal custody. Physical custody refers to the parent that the child will live with. Legal custody refers to the parent with ultimate decision authority regarding the child’s welfare.

What presumptions exist?

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

Parental equality is also presumed. At the start of any custody proceeding, the mother and father are 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 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 determines what is in the child’s best interest. Each case is decided on its 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 before 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 the 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 testimony’s credibility and the evidence’s weight.

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