Who has Custody without a Court Order? Part 3 (Final)

The legislature and the Supreme Court in Mississippi have made it clear that both parents are equally entitled to custody of their children.  I often get frantic phone calls, usually at the beginning of a weekend – Fridays – approximately 6:00 p.m.  The client is outraged that the other parent has the child, no custody or visitation order has been entered, and law enforcement has been called to intervene.  Alternatively, my client explains – “I took the child, I am not giving the child back, and she is calling the cops to charge me with kidnapping, can she do that?”

If there is no court order establishing custody, my interpretation of the law is that either parent may have custody, so long as this custody is not taken using force or otherwise illegally.  And, how can you kidnap your own child?  Of course, keeping the child away from the other parent and denying visitation while secreting the child away will be frowned upon by the judge.  Damned if you do, damned if you don’t.  Most judges like to keep the child just where the child has been for an extended period once you get to Court.  So, it seems to be a fight among the parents to establish this continuity of care until the Court date. Disrupting a child’s life just so you can have the child in your physical possession is wrong, and a Chancellor will likely admonish the party who take this course of action.

In my experience, most seasoned law enforcement officers will inform both parties that this is a civil matter, not a criminal matter.  Unless, of course, one of the parents has broken the law in the process.  Remember – Miss. Code Ann. Section 93-13-1 provides that both parents are “joint natural guardians … and equally charged with their care, nurture, welfare, and education”.  The law provides that both parents have equal rights at this time.  How can a policeman enforce this law? It is my opinion that is for the Chancery Court to decide, and not the cop.

Nevertheless, in some situations, I have had clients inform me that the law enforcement officer forced her to return the child to father under threat of arrest.  Arrest for what?  Well, I suppose, if you do not comply with an officer’s lawful order, then failure to comply.  So, what do you do?  It is always a good idea to comply with the officer and not put yourself in the position of risking an arrest, even if the officer is “wrong”, don’t go to jail over it.

I reached out to local law enforcement to get their official position on this issue. The local Sheriff indicates that he agrees with my position.  Law enforcement should not act to interfere with a custody dispute among parents unless there is  either a Court Order or illegal activity.  This goes without saying, some law enforcement officers are going to be assertive, and you should comply with the officer or risk going to jail.  It’s a catch 22.