Modification of Child Custody

Like child support and alimony, custody orders may be modified under certain circumstances. The test to determine whether a custody modification is proper is a three part test:

1. Has there been a material change in circumstances;
2. If so, has the child been adversely affected by the change; and
3. If so, would a modification of custody be in the child's best interests.

If a material adverse change has occurred, the court will engage in a re-weighing of the Albright factors to determine what arrangement would better serve the child's best interests.

Material Change

Whether a material change has occurred depends on the totality of the circumstances. Changes that would not by themselves constitute a  material change might, in combination, be a basis for modifying custody. For example, if a custodial parent gambled, drank, or struggled to hold down a job - any one of those by themselves would likely not be enough to support a custody change (depending on the severity of the problem). However, if a custodial parent struggled with gambling, drank frequently, and was usually unemployed, the totality of the circumstances might be a material change that would warrant a custody modification.

Adverse Effect

Even if a material change has been shown to have occurred, custody should not, generally, be modified unless the change adversely affects the child. However, if circumstances in the home of the custodial parent create a strong likelihood that a child will be hurt, custody may be modified even absent an ability to show that adverse effects have already occurred. For example, if a stepfather's verbal abuse has been escalating a modification of custody may be appropriate - even before the abuse actually turns physical.

Child's Best Interests

The best interests of the child is always the "polestar consideration" of the court in all matters related to children. The child's best interests are weighed considering the totality of the circumstances. Therefore, it is potentially possible to have an adverse material change that would not result in a change of custody - if a modification would not be in the child's best interests (circumstances of the non-custodial parent are worse, etc.).

Modification of child custody is determined on a case-by-case basis. The facts and circumstances of each individual matter are what ultimately determines the outcome. If there has been a change in circumstances at the custodial parents' home, you should contact a divorce and family law attorney to evaluate whether or not the change may warrant a custody modification.

Child Custody Basics

In Mississippi all custodial decisions are determined by what is in the best interest and welfare of the child. The Mississippi Supreme Court has enumerated factors that the court is to consider for analyzing a child's best interests. However, just like with property division, there is no formula for determining or predicting custody determinations. Each case will be decided on its own merits.

The factors that the court will consider, known as the Albright factors, are:

1. The age, health, and sex of the child.
2. Which parent had continuing care of the child prior to separation.
3. Which parent has the best parenting skills.
4. Which has the willingness and capacity to provide primary child care.
5. The employment responsibilities of both parents.
6. The physical and mental health and age of parents.
7. Emotional ties of the parent and child.
8. The parents' moral fitness.
9. The child's home, school, and community record.
10. The preference of a child at the age of twelve.
11. Stability of the home environment and employment of each parent.
12. Other relevant factors.

This list is not exhaustive - courts do consider other factors (such as the separation of siblings). Also keep in mind that it is not formulaic; a parent that "wins" on more factors is not automatically entitled to custody. Similarly, not all factors are given equal weight, and it is possible for one or two factors to be determinative. Chancellors are given a lot of discretion in making custody decisions.

If you are fighting for custody of your children it is in your best interest to contact a family lawyer.