Who has Custody without a Court Order? Part 1

This is probably the most commonly asked question in domestic relations cases. Who has custody before we get to Court?  Can she take the child from me and keep the child away from me?  Can I get the child back and not let her see the child?  The answer is as clear as mud.

Deborah H. Bell, in her book Mississippi Family Law, Second Edition (2011 Nautilus Publishing) (I am sure there is a more current version) provides several answers to this question.  “The maternal preference has been abolished, but other presumptions now influence the outcome of custody actions.  These include a presumption of parental equality, the presumption in favor of joint custody upon parents; request, the presumption agsainst custody to a violent parent and the presumption in favor of a natural parent” Debbie Bell p. 330.

Miss. Code Ann.§93-13-1 provides that neither parent has paramount custody over the other, until the Court says otherwise.

§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.

A DHS child support order does not automatically establish custody, visitation or any other issue besides child support, usually.  So, in order to establish custody, you will need to get a lawyer and file suit for custody.  Yes, it may be a hassle, and yes, it may be expensive; but, it is your child(ren).