Scroll down to read more on these topics:

1. In an initial child custody dispute, how does the judge determine which parent should be awarded custody?

2. Modification of Child Custody

3. What is a Guardian ad litem? 

4. Alimony in Mississippi

5. Mississippi Child Support Guidelines

    6.   Property Division in Mississippi

1.  IN AN INITIAL CHILD CUSTODY DISPUTE, HOW DOES THE JUDGE DETERMINE WHICH PARENT SHOULD BE AWARDED PHYSICAL CUSTODY?  

When there has been no previous custody order entered and a custody dispute arises between the parents of a child, the judge's primary consideration is to decide what custody arrangement would be in the "best interest of the minor child".  The Mississippi Supreme Court has provided the trial court judges with a list of several factors that the judges must consider when determining what is in the best interest of the child.  Mississippi lawyers refer to these factors as the "Albright factors" since they originated in the case of Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). These factors include:

1. Age, health, and sex of the child;
2. A determination of the parent that has had the continuity of care prior to and after the separation of the parties;
3. Which parent has the best parenting skills and which has the willingness and capacity to provide primary child care;
4. The employment of the parent and responsibilities of that employment;
5. Physical and mental health and age of the parents;
6. Emotional ties of parent and child;
7. Moral fitness of the parents;
8. The home, school and community record of the child;
9. The preference of the child at the age sufficient to express a preference by law (age 12);
10. Stability of home environment and employment of each parent; and
11. Other factors relevant to the parent-child relationship.

While there is no precise or mathematical formula for determining what is in the minor child's best interest, the application of the Albright factors to the specific facts of the case provide the guidance needed to determine what custody arrangement would be in the best interest of the child. 

2.    MODIFICATION OF CHILD CUSTODY

Once child custody has been established by a court order, it is difficult to modify unless the  parties agree.

A modification of custody requires the noncustodial parent to prove: (1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child.

3.  What is a Guardian ad Litem?

In Mississippi, a guardian ad litem is an attorney who is appointed by a court to represent and protect the best interest of a minor child or a vulnerable adult during a lawsuit.  Attorneys usually refer to a guardian ad litem simply as a "GAL".   In youth court, GALs are required by statute to maintain certification by receiving yearly training.  There is no such requirement  in chancery court, although certification it certainly advisable.  A guardian ad litem is required by statute to be appointed in cases where there are allegations of abuse or neglect of a minor child, or where termination of parental rights is at issue.  A judge may also choose to appoint a guardian ad litem  to represent the best interest of a child who is at the center of a contentious child custody battle if the judge believes that the guardian ad litem  will be helpful to the judge in determining the best interest of the child.  Generally speaking, it is the duty of the guardian ad litem  to impartially conduct interviews of parties, witnesses and the minor child or children and to fully investigate the allegations made by the parties in an effort to ascertain  what is in the best interest of the child or vulnerable adult.  The GAL is usually expected to file a written report in the court file setting forth what the GAL did to investigate, what opinions he or she formed, and making recommendations to the judge.  The GAL also usually attends and  participates in court hearings and at trial.   At trial, the GAL may question witnesses and also may be called as a witness.  Although the judge will usually follow the recommendation of the GAL, the judge does not have to.  The ultimate decision maker is always the judge.   However, when the judge does not follow the recommendation of the GAL in cases where a GAL is required by statute to be appointed (i.e. where there are allegations of abuse or in termination of parental rights cases),  the judge is required to explain in his or her written opinion why he or she chose not to follow the recommendation of the GAL. 

4.  Alimony in Mississippi

When I am consulting with a potential divorce client, I often ask questions geared at assessing whether alimony may be appropriate.   I hear the same thing over and over from my clients: "I thought Mississippi wasn't an alimony state."  I am not sure where this misconception got started, but Mississippi courts are certainly empowered to award alimony where it is appropriate.

Mississippi recognizes four basic types of alimony: (1) periodic, (2) lump sum, (3) rehabilitative, and (4) reimbursement.  

Courts have broad discretion in determining whether to award alimony and, if so, how much and for how long.

Lump sum alimony is a fixed and irrevocable sum, used either as alimony or as part of a property division. Payment of such obligations become fixed on the payor and terminate on some future date.  Absent fraud or a contractual provision stating otherwise, lump sum alimony may not be modified.

Periodic alimony is, upon an appropriate change in circumstances, modifiable.  It vests in the recipient spouse as it comes due.  It has no fixed termination date, but normally terminates upon the death or remarriage of the receiving spouse.  Periodic alimony is awarded on the basis of need and is most often used in the dissolution of long term marriages where the payor spouse has been the primary breadwinner for the family. 

Rehabilitative alimony is a monthly payment that is modifiable, has a fixed termination date, and is designed to help the recipient reenter the workforce.  However, the Mississippi Supreme Court has recently indicated that rehabilitative alimony may be converted into periodic alimony under appropriate circumstances.

The fourth type of alimony, reimbursement alimony, is available to one who has supported a spouse in obtaining training or education which carries the possibility of future earnings, but which has not yet produced substantial property for division.

When determining whether or not to award alimony, the trial court must first examine the property division to determine whether both parties have been adequately provided for.  If they have, then an award of alimony is not appropriate.  However, if one party appears to have been left with an inadequate property distribution, the court must consider the following factors to determine whether to award alimony when it has been requested:

1. the health and earning capacity of the husband; 
2. the health and earning capacity of the wife; 
3. all sources of income of both parties; 
4. the reasonable needs of the wife; 
5. the reasonable needs of any children; 
6. the husband's necessary living expenses; 
7. the estimated income taxes each party must pay; 
8. the provisions made for the wife's use of the house, furnishings and automobile; 
9. such other facts and circumstances in evidence that might have a bearing on the matter.

Further, the court must take into consideration the burden placed on the paying spouse, as well as his or her right to lead as normal a life as possible with a decent standard of living.

5.   MISSISSIPPI CHILD SUPPORT GUIDELINES

The Mississippi legislature has established specific guidelines for child support. According to Mississippi Code Section 43-19-101, if the non-custodial parent's  adjusted gross income is between $5,000 and $50,000 a year, then the non-custodial parent shall pay the following percentage of their adjusted gross income in child support.

Number of Children and Adjusted Gross Income

1 child............................................14%
2 children.......................................20%
3 children.......................................22%
4 children.......................................24%
5 or more children..........................26%

The chancellor may, however, deviate from these guidelines if the chancellor makes specific written findings that the application of the guidelines would be unjust or inappropriate. The factors which could justify a deviation from the statutory guidelines are:

      (a) Extraordinary medical, psychological, educational or dental expenses.

      (b) Independent income of the child.

      (c) The payment of both child support and spousal support to the obligee.

      (d) Seasonal variations in one or both parents' incomes or expenses.

      (e) The age of the child, taking into account the greater needs of older children.

      (f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.

      (g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent's homemaking services.

      (h) Total available assets of the obligee, obligor and the child.

      (i) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

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6.  PROPERTY DIVISION IN MISSISSIPPI

My clients are often surprised to hear that Mississippi is not a community property state.  We are an "equitable distribution" state.  This means that the chancellors are empowered to divide the parties' marital property based on what is fair when looking at each party's contribution to the marriage. 

The Mississippi Supreme Court has set forth a list of factors for the chancellor to consider making an equitable distribution of property.  These factors are referred to as the "Ferguson factors" because they came out of the case of Ferguson v. Ferguson in 1994.

Here are the "Ferguson factors":

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:

     a. Direct or indirect economic contribution to the acquisition of the       property;

     b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and

     c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.

2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise;

3. The market value and the emotional value of the assets subject to distribution;

4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;

5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;

6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;

7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,

Any other factor which in equity should be considered.

Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994).

The information provided in this website is for educational purposes only and not intended to provide specific legal advice or to create an attorney-client relationship. Consult Hendren, Hollingsworth & Fitzgerald, PLLC or an attorney in your jurisdiction for advice specific to your particular situation. 

Still have questions? Please contact us. We look forward to hearing from you.