What Custody Rights Do Fathers Really Have?

It is extremely common for our office to receive calls, from either a mother or a father, seeking a determination as to what custody/visitation rights they have to a minor child in scenarios wherein there was never a valid marriage. There is a long-held misconception that because a father is on a birth certificate, he automatically has at least some custody rights to his minor child or children. This misconception could not be further from the reality of the rights that, in the eyes of the court, are afforded to a father in situations where he has never been married to the child’s mother and is seeking some type of physical custody or significant visitation rights. Although it is true that the Mississippi Department of Human Services often adjudicates child support on behalf of a parent (usually the mother), it is legally impossible for the Department to address issues of what custody rights a father may have. This of course can work to the advantage – or disadvantage – of both the mother and the father.

The Department of Human Services is able, under certain circumstances, to adjudicate issues of visitation for a father. However, the Department has limited power to make any determination, if at all, as to what custody rights a father may have if he is seeking anything other than typical, every-other-weekend visitation of his minor child or children. The Department of Human Services does not have the legal authority to adjudicate anything other than child support and, in certain instances, to assist a father in having some form of access to a minor child or children. However, this access is very limited and would not bear upon any custodial rights, aside from potentially having the Department assist a father in having, as previously stated, basic access and visitation with his minor child or children. There is a program at the Department of Human Services that will assist a father in obtaining some access, but it is important to keep in mind that simply because a birth certificate exists, this does not give a father any rights other than the potential to see his child, so long as he is paying normal, statutory child support.

It is the best practice for any mother or father who is in any disagreement as to what rights either one has to access and custody of a child (whether it’s physical or legal custody), and it is important for clients and potential clients to realize, that only a chancery court can adjudicate permanent custody rights of a child. Oftentimes, our office will have a mother call and state that the father has joint custody simply because his name is on the birth certificate. In most cases, this works against the mother because the chancery court has a requirement that she be diligent enough to understand that the Department of Human Services cannot award any custody. If a mother has allowed significant or joint custody with a minor child, then this likely will work to her disadvantage in the case that the father decides to go to chancery court and seek anything other than standard visitation. While it is well understood that many fathers attempt to avoid child support by claiming their desire for joint custody, it is important to note that the more rights that are given in a casual format (like a verbal agreement, for instance) between a father and a mother, the more likely a chance the father has of prevailing against the mother if he does indeed seek joint physical or primary physical custody of the minor child or children.

If you need advice on how to handle your custody situation and need an attorney with experience who handles exclusively domestic matters and who can guide you in a similar scenario, please give us a call at 601.573.7429. Law Office of Matthew Poole.

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