The child's word is not the last one in a Mississippi divorce
Do children have the final say in who they live with following divorce? Not in Mississippi
In my previous post, I spoke about a child custody case out of DeSoto County, Mississippi. In that case, the 16-year-old daughter and 12-year-old daughter both testified in court that they wanted to live with their father as opposed to their mother who had custody. Many believe that once a child reaches a certain age, their decision should be final on who they live with. Not in Mississippi.
This week the Mississippi Court of Appeals again reiterated the rule in Mississippi. It stated:
Mississippi Code Annotated Section 93-11-65 (Rev. 2004) allows a child who has attained the age of 12 to state her preference to the court as to whether she would rather live with her mother or father. However, the trial court is not bound to follow the child's preference. See Polk v. Polk, 589 So.2d 123 (Miss. 1991). Furthermore, we have found no authority to support a conclusion that a child's statement, in and of itself, of his or her preference to live with the non-custodial parent would rise to the level of a material or substantial change in circumstances.
What does this mean? In an original custody proceeding, if the child is 12 or older, the child can tell the chancellor which parent they want to live with. However, the child's preference is just one factor for the chancellor to consider in determining custody. See my previous post on this issue here. More importantly, in a change of custody case, a child of the requisite age stating that they want to now live with the non-custodial parent is not, by itself, evidence of a material or substantial change of circumstances. More evidence is needed to justify a change.
While this rule can be frustrating for some, I think the legislature and courts got it right on this issue. Too many times children can end up jumping between parent's homes when things are not going their way at home, especially during their teenage years. So requiring more evidence than just the child's testimony to justify a change in custody assists in ensuring the move will be in the best interests of the child.
