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How Can a Parent Change a Court’s Previous Award of Physical Custody?

On Behalf of | Dec 4, 2023 | Child Custody, Divorce, modification

Custody Modification Questions:

I often get questions related to changing a court’s previous custody order. This is a first in a series of blog posts, answering the most common questions.

In Mississippi, custody is divided into physical and legal custody of the child.  Legal custody is decision-making authority related to health, education and welfare of the child.  Physical custody refers to the time the child is physically residing with one of the parents.  Both legal and physical custody can be awarded and then changed, or ‘modified’.

In most cases, in order to successfully modify physical custody in Mississippi, the requesting parent must demonstrate the following:

  1. Material Change in Circumstances: There must be a significant change in the custodial parent’s home or the child’s circumstances since the last custody order was entered.
  2. Adverse Impact on the Child: The material change must have a negative impact on the child’s well-being, safety, or development.
  3. Best Interests of the Child: Even if a parent proves a material change and adverse impact, they must also prove that modifying physical custody is in the best interests of the child, considering factors such as the child’s age, maturity, needs, and relationships with both parents.

The requesting parent will be asked to gather evidence to support their claims, such as:

  • Documentation of the material change in circumstances (e.g., adverse living conditions of custodial parent’s home, health issues significantly affecting the custodial parent’s ability to provide care and support for the child, abuse of alcohol and or drug usage by the custodial parent)
  • Evidence of the negative impact on the child’s well-being (e.g., school reports, medical records, counselor’s reports)
  • Evidence of the positive living environment offered by the requesting parent (e.g., stable home, supportive family, extracurricular activities)

Unless a requesting parent is modifying an out of state custody decree, the requesting parent initiates the process by filing a petition with the Chancery Court which issued the previous custody order. The petition is served on the non-custodial parent, who may file a response. Both parties may engage in discovery by requiring the other party to answer questions under oath and producing relevant documents. If the parties are unable to agree on a resolution a trial is held before a Chancery Court judge, who will consider the evidence and arguments presented by both parties. If the Court determines that the parent seeking to modify physical custody has proven their case, the court will issue a new judgment that changes the previous custody judgment.

Seeking Legal Guidance

Modifying physical custody is a complex legal process, and it is advisable to seek guidance from an experienced family law attorney in Mississippi. I can assess your case, gather evidence, represent you in court, and protect your child’s best interests throughout the process.  Please contact my office at 601-825-3124 to set up an initial consultation.