Parental Choice in Custody Proceedings

After countless inquires, I write this post in order to help clarify what I deem a long running misconception concerning child custody law throughout Mississippi.  Specifically, that a child twelve or older has the right to choose which parent they wish to live with in the event of a custody dispute. 

Miss Code Ann. Sec. 93-11-65, provides: “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 with in determining what would be in the best interest and welfare of the child.”

Consequently, the Mississippi Court of Appeals has held that trial court’s are not required to follow the child’s stated preference. D.A.P. v. C.A.P.R., 918 So.2d 809, 824(¶ 62) (Miss.Ct.App.2005).  Mississippi case law does not support the contention that a child’s prefernce to live with the non-custodial parent, standing alone, will satisfy the material change of circumstance requirement. Id. Further, the child’s preference is but one factor in considering the ultimate issue of what is in the best interest of the child. Brown v. Brown, 764 So.2d 502, 505 (Miss.Ct.App.2000)  Thus, a child’s preference is just one factor for the Chancellor to consider, albeit a strong one.