Who Has Custody Without A Court Order?

The process of establishing custody with a court order can be a long and difficult process. The custody attorneys at Campbell Law can help you navigate this difficult time and work toward a custody agreement that is best for you and your children. 

If you are involved in a custody dispute, you should contact an attorney as soon as possible to ensure your rights are protected. Contact Campbell Law today for a free case evaluation.

Who Has Custody of a Child Without a Court Order

Historically, courts favored mothers in custody battles. This is no longer the case, as the courts will equally consider both parents and tend to favor joint custody over other arrangements. 

§93-13-1 – 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 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 be 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 that such person is unsuitable, and appoint a suitable person.

When thinking about who gets primary custody in a divorce, it’s important to note that without a legal order, there is no definitive decision of custody. Without a court order, both parents are equally entitled to child custody.

Who Gets Custody in an Emergency?

In the event of an emergency, you can request an emergency custody hearing. In order to be granted an emergency custody hearing, you must be able to prove there is a real emergency. This typically means that you will have to prove that there will be immediate and irreparable harm if the court does not issue an emergency order.

The Miss. R. Civ. P., Rule 65(b) provides:

b) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted, without notice to the adverse party or his attorney if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and reasons supporting his claim that notice should not be required. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed ten days, as the court fixes (except in domestic relations cases, when the ten-day limitation shall not apply), unless within the time so fixed the order for good cause shown is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be stated in the order.

Temporary Custody Orders



Emergency custody orders are a type of temporary custody order. A temporary order can also be issued in situations that are extremely contentious. It’s important to be aware that temporary hearings can take anywhere from a few weeks to eight months to take place.

When determining a custody arrangement, there are a number of factors that the court considers, for instance, the disruption of a child’s life. If your child has been solely living with your spouse while waiting for a custody order, you may have a harder time arguing for custody.

To set yourself up for success as you navigate a child custody battle, consider the other factors taken into consideration by the court when trying to decide who has custody and who doesn’t.

Factors in Custody Decisions

As mentioned previously, there are a number of factors that the Mississippi Supreme Court has stated should be considered in custody cases, including:

• 
  Age, health, and sex of the child
• Which parent had continuity of care prior to separation
• Which parent has the best parenting skills
• Which parent has the willingness and capacity to provide primary childcare
• Employment of the parent and responsibilities of that employment
• Physical and mental health and age of the parent
• Emotional ties of the parent and child
• Moral fitness of the parents
• The home, school, and community records of the child
• The preference of the child at an age sufficient to express a preference
• The stability of the home environment and employment of each parent
• Other factors relevant to the parent-child relationship

These factors are not exhaustive, and it’s important to keep in mind that “winning” more factors than your spouse does not automatically mean that you win the custody case.

Talk to a Child Custody Attorney Today

The process of getting a court order for child custody can be difficult and exhaustive. If you’re involved in a custody dispute, you should consider getting in touch with an attorney as soon as possible. 

Campbell Law has helped hundreds of parents through custody proceedings to ensure their child’s well-being. Contact us today for a free consultation to discuss the details of your particular case and learn how we may be able to help you.