Mississippi Custody and Visitation Law
Mississippi courts have used a parent’s sexual orientation to deny, restrict or modify custody and visitation. There are no reported or published opinions dealing with transgender parents or same-sex co-parents.
Custody and Visitation for Gay, Lesbian and Bisexual Parents
Mississippi law states: “The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education and the care and management of their estates. The father and mother shall have equal powers and rights, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of such minor, or any other matter affecting the minor. If either father or mother [should] die or be incapable of acting, the guardianship devolves upon the surviving parent. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to its custody. But if any father or mother is unsuitable to discharge the duties of guardianship, then the court, or chancellor in vacation, may appoint some suitable person, or having appointed the father or mother, may remove him or her if it appear[s] that such person is unsuitable and appoint a suitable person.”
The law was interpreted by the Mississippi Supreme Court in the 1983 case Albright v. Albright. In this case, the court said that under state law, the primary consideration in child custody cases is the best interest and welfare of the child, and the age of the child is subordinated to that rule, and is but one factor to be considered. Other factors to be considered are: the health and sex of the child; a determination of which parent had the continuing care of the child prior to the separation; which parent has the best parenting skills; which has the willingness and capacity to provide primary child care; employment responsibilities of the parents; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient by law to express a preference; the stability of the home environment and employment of each parent; and other factors relevant to the parent-child relationship. Marital fault, however, should not be used as a sanction in custody awards. In addition, relative financial situations are not controlling and differences in religion, personal values and lifestyles should not be the sole basis for custody decisions.
In a 2002 case, Fulk v. Fulk, the chancellor had awarded custody of the child to the father and severely restricting the mother’s visitation. The appellate court reversed. The court ruled that the mother’s same-sex relationship can not be used as the sole factor in making custody decisions and that the chancellor had relied too heavily on this relationship in making her determinations.
In a 2001 case, S.B. v. L.W., a bisexual mother moved in with a woman and left a well-paying, full-time job to start a business and move to another part of the state. The father was awarded custody of the child. She appealed this determination, arguing that the court erred by considering her sexual orientation. The appellate court upheld the trial court’s decision. It found that the chancellor noted that he could not base his custody decision solely upon the mother’s sexual orientation; however, he did use it as a factor in his decision when assessing the mother’s moral fitness.
In another 2001 case, Hollon v. Hollon, the mother, Beth, moved in with a female friend after separating from her husband. During the divorce proceedings the husband, Timothy, alleged that Beth and her roommate were having a same-sex relationship and sought custody of their son. The trial court, placing considerable weight on the “moral fitness” of Beth, awarded Timothy custody. Beth appealed. She argued that the trial court focused too much on her same-sex relationship in determining custody. The Mississippi Supreme Court found that the trial court never found the mother to unfit to care for her son, and no evidence was presented regarding any detrimental effects the child may have suffered as a result of living with his mother. As a result, the high court said that chancellor abused his discretion by placing too much weight upon the “moral fitness” factor and ignoring “the voluminous evidence presented under the remaining factors supporting Beth as the preferred custodial parent.” The custody decision was reversed.
In another 2001 case, Morris v. Morris, a father was awarded custody and the mother visitation with restrictions. The mother appealed arguing that the trail court erred when it stated: “By engaging in a homosexual relationship which this court finds to be violative of Mississippi statutes, and continuing in that relationship at this time, the court finds that the element of moral fitness must be resolved against the natural mother.” The state Supreme Court reaffirmed that a court can consider a parent’s sexual orientation as a relevant factor in custody determination as long as it is not the sole factor.
In a 1999 case, Weigand v. Weigand, the parents had joint custody and the mother, Machelle, had residential custody. The father, David, sought modification of the order, asking for full custody of the child, with Machelle having visitation. David, who was gay and lived with his same-sex partner, asked for the modification because he believed that their son was exposed to mental and emotional abuse as a consequence of the volatile relationship between Machelle and her new husband. The court did not grant the modification, and without prompting, the chancellor banned visitation between David and his son while in the presence of David’s partner. The state Supreme Court ruled that, although “the morality of David’s lifestyle was one important factor to consider … this was not the sole basis for his custody decision.” As a result, they did not reverse the order. On the issue of the prohibition of visitation in the presence of David’s partner, the high court lifted this restriction, stating that the father’s living arrangement is not the type of harm that rises to the level necessary to place such restrictions on David’s visitation with his son.
In a 1990 case, White v. White, custody of the children was taken from the mother and given to the ex-husband’s parents. Additionally, restrictions were placed on the mother’s visitation with the children. The mother appealed arguing that the chancellor found her unfit solely because of her same-sex relationship. The state Supreme Court found that: “Though the predominant issue in the case seems to have been Mrs. White’s lesbian relationship, and the chancellor may have relied almost entirely on this, we find that a review of the entire record and the circumstances present … shows that the chancellor’s decision … was not against the overwhelming weight of evidence.” Subsequently, the high court upheld the chancellor’s decisions regarding custody and visitation.
Citations: 93-13-1; Fulk v. Fulk, 827 So.2d 736 (Miss. Ct. App. 2002); S.B. v. L.W., 793 So.2d 656 (Miss. Ct. App. 2001); Hollon v. Hollon, 784 So. 2d 943 (Miss. 2001); Morris v. Morris, 783 So.2d 681 (Miss. 2001); Weigand v. Weigand, 730 So. 2d 581 (Miss. 1999); White v. White, 569 So. 2d 1181 (Miss. 1990).
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Last Updated: 10/13/2004