There are lots of myths and advice in circulation pertaining to divorce. What you can or cannot do, what a friend might say or might have just heard. Often such conflicting information can add more stress, uncertainty, and even cause parties with good intentions to make serious mistakes. No publication can take the place of an individual consultation with your attorney, but a knowledge of what courts consider in a Mississippi or Memphis divorce may clear up some confusion and prepare you to meet with your attorney. This week we will explore what judges consider and do not consider when determining disputed custody.

     The overarching theme of all of Mississippi custody law is to determine what is in the best interest of the child. If Joint custody is requested a judge will automatically assume joint custody is in the best interests of the child.  If there is a dispute over custody Judges will look at 12 areas (known in Mississippi as the albright factors) to determine what type of placement is in the child’s best interest.   

1. The Age of the Child

     Mississippi courts are no longer allowed to base custody decisions solely on the idea that the child is of tender years and the mother is best equipped to nurture a child.  But, the judge is still free to indulge a general presumption that a mother is best suited to raise a young child.  As a general rule a fit mother who has been the child’s primary caretaker is likely to win custody based on that factor and on the fact that the mother was the primary caregiver (we will look at that factor later). But this presumption applies only to very young children.  When a child can be cared for equally by either parent then that factor is no longer applicable. In Mississippi possibly children as young as four years of age have been ajudged to be capable of being cared for by wither the Mother or the Father. Recently there has been a trend of growing judicial acceptance of fathers as primary care givers. Fathers who have been the primary care giver to the child have also won exclusively on those grounds.

2. The Sex of the Child

      Older children may be adjudged to do better when in custody with the same-sex parent based on the importance of a strong gender role model; this is especially prevalent in boys. This could be a supporting issue for the judicial opinion but the most important factor to a judge will be to find the prior caretaker, with the strongest parenting skills who can provide a stable home environment.  An example of the Court not taking this factor to extremes would be a recent Mississippi case where the father was awarded sole custody of his two daughters because he had superior parenting skills and provided a more stable home environment.

     These two factors displace a lot of common myths about child custody. There are no presumptions that cannot be overturned with facts about what is in the best interest of the child. Tomorrow we will further explore what factors courts consider when awarding custody.  If you are currently in, or may be in a custody suit, please contact our Memphis Divorce and Family Lawyers for a consultation.