When Can My Child Decide Which Parent to Live With in Mississippi?

When two people get divorced, Mississippi requires that they come to an agreement regarding important elements of their breakup. The division of assets and debts, and a plan for spousal support are just two examples. Arguably the most important aspect they must address is what will happen to their underage children. Mississippi courts attempt to give children of divorce the best possible chance at a normal life by standardizing the laws that govern support and custody. Typically, the parents are allowed to devise their own parenting plans as long as they meet the requirements of Mississippi law. If the parents are unable or unwilling to agree on the child’s best interest, a judge will decide the physical and legal custody of the child.

Physical and Legal Custody

Physical custody refers to who the child lives with. One parent is often given sole physical custody while the other retains visitation rights. Joint custody is also possible, in which each parent will have substantial time with the child, although that time may not be completely equal. In the case of visitations, the noncustodial parent (the one without sole custody) will have a scheduled period of parenting that the court may or may not add restrictions to, depending on the case.

Legal custody, on the other hand, refers to the child’s legal guardian. This person can make decisions that directly impact the child’s life. Decisions such as:

  • Which school the child will attend
  • What medical treatments they will receive
  • And what religion, tutoring, or Psychological counseling the child will grow up with.
  • A typical arrangement is when both parents retain legal guardianship while only one has physical custody. The other parent will then have visitation rights and pay child support.

How Custody is Determined

Mississippi puts the legal emphasis on the best interest of the child. The needs or wishes of the parents should be considered secondary to the child’s safety and well-being. Under most circumstances, the court will accept the parents’ decisions regarding custody as long as they benefit the child first and foremost. When parents can’t agree, a judge must decide the legal and physical custody of the child. They will make their decision based on several contributing factors, such as:

  • The child’s age, gender, and overall health
  • The role each parent will play in the child’s care and how proficient they have proven themselves as parents
  • Each parent’s willingness to parent
  • Each parent’s work history and obligations
  • The physical, mental, and emotional stability of each parent
  • Any history of domestic violence, as it will be up to the violent offender to prove they are capable of keeping the child safe
  • And finally, the child’s preference will be considered if they are of sufficient age to be recognized by the court.

At What Age Can a Child Choose?

In Mississippi, a child can choose which of his divorcing parents he would like to live with at age 12. Before age 12, the child’s preference is not legally considered by the court. Even if the child is 12 or older, the judge is still beholden to the child’s safety above all. This means that regardless of the child’s decision, a judge is well within his power to place the child in the home where he will be cared for best. 12 is a tumultuous age in a child’s life, and an experienced judge will not give custody to an unreliable or dangerous noncustodial parent just because the child requests it. Instead, the judge will heed the advice of the minor only if both parents can demonstrate that they are fit for custody. However, if the child asks to live with one parent and the judge denies it, he will have to offer a credible reason as to why he rejected the child’s request.

Will the Child Have to Testify in Court?

Most of the time, the Mississippi family court attempts to keep the child out of the courtroom. Asking a child to choose between his parents in open court and in front of each parent could be a very traumatic event. Instead, a judge might take the child into his chambers to discuss the issue semi-privately. Lawyers and court reporters will also be present, so everything is on the record. The child can also opt to simply submit their preference to the judge in writing, thereby bypassing any need for them to be in the building at all. If the child is unsure which decision to make, the judge can appoint a custody evaluator who will meet with both parents and the child separately. The court’s goal is to make the divorce no more difficult on the child than it needs to be.


If you have more questions about child custody in Mississippi, call The Law Offices of Rusty Williard for a free consultation. (601) 824-9797.