Custody is the legal responsibility for the care and control of your child who is under 18 years of age. The court may give custody of your child to one or both parents. There are two types of custody: legal and physical.

Physical custody refers to the periods of time when one parent is responsible for care of the child.¹

Legal custody means decision-making rights and responsibilities related to the child’s health, education, and welfare.²

¹ Miss. Code § 93-5-24(5)(b)
² Miss. Code § 93-5-24(5)(d)

There are multiple ways that legal fatherhood (paternity) can be established in Mississippi:

• If parents were married to each other when the child was conceived or born, paternity is automatically established for the husband;
• If parents were not married to each other when the child was conceived or born, then they need to do something to establish paternity. This can be done:
  
  • involuntarily - one of the parents asks the local family court to establish paternity, usually through DNA testing;¹ or
  • voluntarily - both parents agree to who the father of the child is. This can be done through a sworn acknowledgement of paternity at:
    • the hospital or birthing center; or
    • the Bureau of Vital Statistics of the Mississippi State Department of Health.²

¹ Miss. Code § 93-9-21
² Miss. Code § 93-9-28(1), (4)

If the judge finds that a parent has a history of committing family violence, there is a “rebuttable presumption” against granting custody. This means that the judge should assume that it is not in the child’s best interest for the abusive parent to have sole or joint legal and physical custody. However, the abusive parent can present evidence to try to change the judge’s mind. The judge may find that there is a history of committing family violence if:

• one incident of family violence has caused you serious bodily injury; or
• there has been a pattern of family violence against you, your family/household member, or the abusive parent’s family/household member.¹

The judge also has to make a written statement explaining how the family violence affected his/her custody decision.¹ In deciding whether to grant custody to a parent who committed violence, the judge will consider whether or not the parent who committed family violence:

• has shown that giving him/her sole or joint physical or legal custody of the child is in the best interest of the child due to the other parent’s absence, mental illness, substance abuse or another situation that affects the best interest of the child;
• has successfully finished a batterer’s treatment program, an alcohol or drug abuse counseling program, or a parenting class if the judge decides any of these programs are appropriate;
• is on probation or parole or has a restraining order issued against him/her and whether or not s/he has complied with its terms and conditions; and
• has committed any other acts of domestic violence.²

A judge may also allow for visitation if s/he believes you and your child can be protected through some restrictions in the order. For a list of a protections you can request in the order, see What protections can the visitation order include for domestic violence victims?

¹ Miss. Code § 93-5-24(9)(a)(i)
² Miss. Code § 93-5-24(9)(a)(iii)

If the judge believes that you and your child can be protected from further abuse with some restrictions during visitation, s/he can include those in the order. These are some of the things that could be ordered to protect you and your child:

• that the exchange of the child takes place in a protected setting;
• that visitation time is supervised and the abuser pays part of the cost associated with them;
• an order for the abuser to complete batterers’ intervention or counseling, as a condition for visitation;
• an order for the abuser to not drink alcohol or take drugs during visitation and 24 hours before visitation is scheduled;
• no overnight visitations;
• an order that the abuser pay a bond for the safe return of your child; or
• any other conditions that the judge believes are necessary to keep you, the child, or any other family or household member safe.¹

¹ Miss. Code § 93-5-24(9)(d)(ii)

Grandparents can petition the court for visitation of your child in the following circumstances:

• custody is awarded to only one of the parents;
• parental rights are terminated for one of the parents;
• one of the parents died; or
• the grandparent has established a relationship with the child and both of the following are true:
  
  • one of the parents or his/her custodian is unreasonably denying visitation; and
  • the judge believes that visitation would be in the best interest of the child.¹

¹ Miss. Code § 93-16-3

Before you file for custody, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.

However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.

Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.

You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page. 

In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.

The legal paperwork that starts a custody case is called a petition. You may file your custody petition in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.

The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.

Sometimes, non-parents can also file for custody or visitation rights. To find out about filing for visitation as a grandparent, go to Can a grandparent file for visitation? or talk to a lawyer.

The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our Mississippi Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for a protective order and get temporary custody as part of the protective order.

After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.

There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.

Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.

Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.

If you want to permanently move out of state or move within the same state to a distant location that would interfere with the other parent’s visitation schedule, or change the child’s school, for example, then you may have to get permission from the other parent or the judge depending upon the specifics of your custody situation. WomensLaw.org strongly suggests getting legal advice from an attorney first, even if the other parent agrees that you and the children can move.

Unless parental rights have been terminated, the child’s non-custodial parent can still have access to records and information about the child. These include, but are not limited to, medical, dental, and school records.¹

¹ Miss. Code §§ 93-5-24(8); 93-5-26

If a parent who has custody, or joint custody with primary physical custody is deployed by the military, a temporary custody order can be issued if:

• the parent will be deployed or mobilized to a place that is a substantial distance from his/her home; and
• it has a major effect on his/her ability to carry out his/her custody responsibilities.¹

The temporary custody order would end no later than ten days after the parent returns. The order would require the following:

• The deployed parent must give information to the non-deployed parent regarding his/her leave schedule in a timely manner;
• The non-deployed parent must make the child reasonably available to the deployed parent during his/her leave; and
• The non-deployed parent must help facilitate contact between the child and the deployed parent via telephone, webcam, and e-mail during the deployment.²

If a parent who has visitation rights is deployed by the military, some or all of his/her visitation rights can be given to a family member if:

• the parent will be deployed or mobilized to a place that is a substantial distance from his/her home; 
• it has a major effect on his/her ability to use his/her visitation rights; and
• the family member has a close and substantial relationship to the child.³

For these purposes, a ”family member” could be anyone related to the service member by blood or marriage, including a step-parent, grandparent, aunt, uncle, and adult sibling, among others.⁴

¹ Miss. Code § 93-5-34(3)
² Miss. Code § 93-5-34(3)(a), (3)(c)
³ Miss. Code § 93-5-34(4)
⁴ Miss. Code § 93-5-34(2)(d)