MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary; Juvenile Justice

By: Senator(s) Walls

AN ACT TO AMEND SECTION 93-5-24, MISSISSIPPI CODE OF 1972, TO FURTHER CLARIFY THE TYPES OF CHILD CUSTODY AWARDED TO THE DIVORCED PARENTS OF A CHILD; TO PROVIDE FOR SHARED PARENTAL RESPONSIBILITY; TO FURTHER CLARIFY VISITATION RIGHTS; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 93-5-24, Mississippi Code of 1972, is amended as follows:

93-5-24. (1) The Legislature finds and declares that it is the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, and that in any proceeding where there is at issue the custody of a minor child or children, the court may, during the dependency of the proceedings or any time thereafter, make such order for the custody of the child or children during minority as may seem necessary or proper.

(2) For the purpose of this section:

(a) "Joint legal" means that the parent or parents shall have voluntarily allocated or the court shall have decreed between them the decision-making rights, responsibilities and authority relating to the health, education and welfare of a child;

(b) "Joint physical" means an order awarding each of the parents significant periods of time in which a child resides with, or under the care and supervision of, each of the parents or parties. Joint physical custody shall be shared by the parents in such a way to assure a child of frequent and continuing contact with both parents.

(c) "Shared parental responsibility" means joint physical and legal custody.

(3) Custody shall be awarded in the following orders of preference according to the best interest of the child:

The court, in its discretion may require the parents to submit a plan for implementation of the custody order upon the finding that both parents are suitable parents, or the parents acting individually or in concert may submit a custody implementation plan to the court prior to the issuance of a custody decree.

In making an order for custody to either parent the court shall consider, among factors, which parent is more likely to allow the child or children frequent and continuing contact with the non-custodial parent and shall not prefer a parent as a custodian because of the parent's sex. The burden of proof that shared parental responsibility would not be in the child's best interest shall be upon the parent requesting sole custody.

(4) There shall be a presumption in all custody cases including any custody cases which are brought after the enactment of this statute that shared parental responsibility is in the best interest of the minor child unless:

(a) The parents have agreed to an award of custody to one parent or so agree in open court at a hearing for the purpose of the minor child of the marriage; or

(b) The court finds that shared parental responsibility would be detrimental to a particular child of a specific marriage.

This presumption affecting the burden of proof that shared responsibility is in the best interest of a minor child shall apply to any court proceeding to modify custody filed after the enactment of this statute.

For the purpose of assisting the court and making a determination whether an award of shared responsibility is appropriate, the court may direct that an investigation be conducted. If the court denies entering an order awarding shared responsibility and joint custody pursuant to this section in the initial divorce proceeding or in any subsequent suit filed by either party to modify the decree of custody, the court shall state specific findings or facts as to each and every reason as to why the court should not award shared parental responsibility.

(5) Visitation rights consisting of every other weekend and some time during the summer are presumed to be insufficient contact with the non-custodial parent and burden of proof is upon the party seeking to restrict visitation to only two (2) week-ends a month to prove that the granting of more visitation rights would be against the best interest of the child, and the court shall make specific findings in writing as to why only two (2) week-ends per month plus summer and holiday visitation is awarded.

(6) An award of joint physical and legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child; and the parties and the parents shall confer with each other in the exercise of decision-making rights, responsibilities and authorities. All doctors, psychologists, private schools, public schools and hospitals shall release to either parent upon request all records concerning the minor child. The medical provider may charge a reasonable copying fee for the release of such records. In the event that the medical provider or school fails to comply with the release of these documents then the medical provider shall be subject to a penalty of an assessment of all attorney fees incurred by the parent in seeking a court order to obtain such records plus other sanctions as the chancery court may deem appropriate.

(7) When one parent is granted the sole custody of a minor child, the other parent shall be given reasonable rights of visitation in light of the circumstances. Such visitation rights shall be as liberal as possible to effectuate the purposes of this act in assuring that the child has a frequent and continuing relationship with the non-custodial parent. In the event that the custodial parent refuses to comply with the visitation order, the custodial parent shall be required to pay all attorney fees, lost wages and any other expenses incurred by the non-custodial OMISSION

(8) In the event that the chancellors that are serving in the district in which the cases arise are unable to hear the cases due to a conflict or recusal, the Chief Justice of the Supreme Court shall immediately appoint a special chancellor who shall hear such cases within ten (10) days. The special chancellor shall have continuing jurisdiction to hear all future proceedings involving the same child or children as long as the special chancellor remains a licensed attorney in the State of Mississippi.

(9) Any order for shared parental responsibility may be modified or terminated upon the petition of one or both parents or on the courts' own motion if it is shown that the needs of the child require modification or termination of the order. The court shall state in its decision in writing the reasons for modification or termination if either parent opposes the modification or termination.

(10) In any consideration as to custody, the court shall consider the fact that one of the parents has moved a significant distance from the original home of the child. With respect to any order of visitation or transportation the presumption shall be that the parent that moved away from the original county where the parties lived and were divorced shall bear the expense and costs of transportation during all periods of visitation. The burden of proof shall be on the parent moving to show cause as to why the costs and expenses of transportation should not be paid by the moving party.

(11) Any order for the custody of a minor child of a marriage entered by the court in this state or any other state subject to jurisdiction requirements may be modified at any time in accordance with this section and upon the hearing of any suit to modify the presumption shall exist and be in favor of joint custody. If joint custody is not awarded, the court in any suit for modification shall give significant consideration and significant weight in awarding custody to the parent that will more likely ensure continuing and frequent contact with the other parent.

(12) In jurisdictions having private or public support conciliation services, the court or parties may at any time, pursuant to local rules of court, consult with the conciliation services for the purpose of assisting the parties to formulate a plan for implementation of the custody order or to resolve any controversy which has arisen in the implementation of a plan of custody.

SECTION 2. This act shall take effect and be in force from and after July 1, 1997.