Child Custody without a Court Order in the State of Mississippi; Is it possible?

This office often receives calls from potential clients stating that they have custody of their child simply because the child has always lived with them and doesn’t even know, or barely knows the opposite biological parent.  To give a specific example, we had a female client call and state that she has custody of her child and wants to make sure that the biological father pays child support . Sometimes in similar scenarios the caller may request that the biological father’s right be terminated altogether.  As per usual, as well as in the above mentioned scenarios, there’s a substantial amount of misunderstanding of the term “custody” and what it means.  In one sense, in the use of many laymen, while even without a court order a mother or father could have custody of a child because they do exercise care and control of that person.

It is important to distinguish the difference between “physical” and “legal” custody for the purpose of this discussion.  “Physical” custody has to do with the right to have a child or children live with the person awarded that custody.  “Legal” custody has to do with the ability of a parent to make decisions on behalf of a minor child,  this can include but is not limited to medical and educational decision making.

Sometimes we have clients call and say, “We have custody of our child because there’s a DHS order in place that requires the father to pay support.”  Although we hate to be the bearer of bad news, I have to let them know that DHS cannot adjudicate custody.  The Department of Human Services only has jurisdiction to adjudicate child support and some limited abilities to set up visitation schedules or require that the non-custodial parent be permitted visitation with the child for whom they’re paying support.

The moment that a Mississippi chancery court has a petition filed by either party to determine custody, DHS has no ability to mandate any sort of visitation or custody award on behalf of one parent.  The long and short of this topic is that in order to have true custody that is legally enforceable by any court, it requires more than a DHS order, more than a parent having exercised control and care over a child, and most importantly it requires that the parent obtain a court order which adjudicates or decides all rights between the parents related to the minor child  and their well being.  For a further discussion on custody and what factors a court in Mississippi will consider in making these decisions see Albright vs. Albright which is on our website

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