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Sibling Custody: Stay Together or Separate?

January 18, 2012,

Custody disputes in Misssippi are never easy. Two parents are put into the untenable position of being forced to battle against each other for the right to keep and care for a child that earlier belonged to both of them. These disputes are complicated even further when, instead of just one child being at issue, there are two, three, or more brothers and sisters whose well-being are at stake. Suddenly, the court may be forced to consider whether siblings should go to one parent or be divided between the parents.

The Mississippi Supreme Court has reiterated time and time again that, in custody disputes involving multiple children, courts should strive to keep the family unit together. But the custody analysis does not change in multiple-child households. In every child custody dispute in Mississippi - even those involving more than one child - the court will follow the guidepost that custody should be awarded to the parent best able to serve the "best interests and welfare of the child."

In making this "best interest" determination, Mississippi courts have consistently and explicitly used what are called the Albright factors, so named after the 1983 case in which they were first outlined. These factors are discussed in more detail in the custody section of my blog. Even in multiple-child custody disputes, Mississippi courts still will use these factors in determining which parent will best fulfill the "best interests" of the children. So a key question necessarily comes up when siblings are involved: Is it in the "best interests" of siblings that they stay together in a custody determination?

The answer to this question is simple: It depends. Mississippi courts generally try to keep siblings together, but the decision hinges on the facts and circumstances of each case. The Mississippi Supreme Court has said time and time again that when circumstances do not require the separation of children, the courts should make a strong attempt to keep the siblings together. The Supreme Court has also said that siblings may be separated if circumstances dictate that division of the siblings is in their best interest. So the courts' determination of keeping siblings together or splitting them up depends primarily on the facts of the case.

In fact, Mississippi courts have also said that there is no general rule that it is in the best interests of the siblings to remain together. (Conversely, the Supreme Court has held that there is no general rule that it is in the best interests of the siblings to separate.) That is to say, one should not even presume that siblings automatically will be kept together in a custody dispute. While courts will try to keep the siblings together, circumstances may exist that make keeping siblings together not in the "best interests" of the children.

For example, in one case the court separated siblings partially because the thirteen-year-old older brother expressed a strong desire to live with his father. Another case found the court separating siblings only after determining that both father and mother were fit to raise children. In another case the court had no trouble separating half-siblings.

It must be noted, however, that courts have been less reluctant to separate the siblings when the custody arrangements are favorable in terms of maintaining a familial bond. For instance, if siblings are split between the parents, but the terms of custody stipulate that the siblings see each other every weekend and at all holidays, Mississippi courts have been less reluctant to separate the siblings. If the separated siblings will attend the same school, the courts have been more willing to acquiesce. Basically, if the negative effects of separation can be mitigated as much as possible, the court will take that into account when making the determination.

To conclude, while there is technically no presumption that keeping siblings together or splitting them up is in the siblings' best interests, it seems that Mississippi courts will more often than not lean towards keeping siblings together. But at the end of the day, sibling custody depends on the circumstances of each case, just like any custody determination.

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Child Custody In Mississippi

February 3, 2011,

In Mississippi, there are two types of child custody: "physical custody" and "legal custody." Physical custody is the period of time in which a child resides with a particular parent, while legal custody refers to the right of a parent to make decisions relating to the health, education and welfare of the child.

There are numerous ways that child custody may be awarded in Mississippi. A court may award joint physical and legal custody, joint legal custody with sole physical custody in one parent, joint physical custody with sole legal custody in one parent or physical and legal custody to either parent. Joint legal custody means that parents share decision-making rights with regard to the child. Moreover, when joint physical custody is awarded, a child will normally spend a significant time with both parents. Where a home has more than one child, a court may also order split custody, though there is a strong preference for keeping siblings in the same home in Mississippi.

It is important to remember that the primary or "polestar" consideration in custody cases is the "best interests and welfare of the child". Chancellors in Mississippi always determine custody based on this "best interests" approach or test. In Mississippi, it is now presumed that mothers and fathers are equally entitled to custody of their children. In addition to the presumption of equality, other presumptions also directly influence custody actions in Mississippi. These include the presumption in favor of a natural parent, the presumption against custody to a violent parent, and the presumption in favor of joint custody upon both parents request.

So who will get custody in a dispute between natural parents? To resolve this question, Chancery Courts in Mississippi apply the presumptions above as well as the factors adopted by the Mississippi Supreme Court in Albright v. Albright, to determine which parent should have custody. These factors include:

[1] Age, health and sex of child;
[2] Continuing care of child prior to (and after) separation;
[3] Parenting skills of each parent;
[4] Capacity to provide child care and employment responsibilities;
[5] Physical and mental health and age of parents;
[6] Alcohol and drug use;
[7] Emotional ties of the parent and child;
[8] Moral fitness;
[9] Home, school and community record of child;
[10] Preference of a child twelve or older;
[11] Stability of the home environment and employment of parents; and,
[12] Other relevant factors that should be considered.

When determining custody, my experience is that a court will first apply the presumptions and, if not decisive on the custody issue, the court will then engage in a thorough Albright analysis to determine which parent should be awarded custody and why.

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