Do children have a say in which parent they live with?
Can Johnny decide he wants to live with Dad?
Maybe. Mississippi Code 93-11-65(1)(a) provides in part:
“If the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child.”
A qualifying child’s choice is just one of the Albright factors which the chancellor will consider in making the custody decision. The polestar consideration is still what is in the best interest of the child. Some give it more weight than others. However, in February of this year, the Mississippi Supreme Court reversed a case out of Simpson County in which the chancellor failed to set forth the reasons for rejecting the child’s choice of which parent to live with. In Floyd v. Floyd, the Court reiterated its earlier holding, and statutory requirement, which stated:
“when the chancellor denies a child his choice of custodial parent…, then the chancellor must make on-the-record findings as to why the best interest of the child is not served.”
Thus, a child of twelve years or older has a right to choose the custodial parent and the chancellor can accept or reject that decision. If the chancellor denies the request, it must make a specific finding on the record so the appellate courts have an opportunity to review the decision.
