Mississippi lawmakers are considering legislation that would make joint custody the standard in all divorce cases – something done in only five states.
Advocates of the proposed legislation say it will even the playing field for fathers. But litigation to gain sole custody would become more costly and time-consuming. If enacted into law, opponents say this bill would disproportionately hurt low-income women and those who work full time caring for children and households.
Critics also say women who get joint custody of their children may end up providing most of the childcare, but they won’t receive child support that can make that extra care more manageable. In some cases, it could force women into contact with abusive ex-husbands or leave children in the custody of abusive fathers.
In most states, including Mississippi, parental custody is considered on a case-by-case basis. Often, mothers are granted primary custody. Experts say this legislation, if passed, would affect tens of thousands of Mississippi parents each year.
Rep. Shane Aguirre, a Republican from Tupelo.Rep. Shane Aguirre, a Republican from Tupelo and author of the bill, told Mississippi Today he thinks Mississippi fathers have the odds stacked against them. He proposed legislation to make the system more fair, and because he believes children benefit from having a mother and father present when possible.
“Why not start where we’re going to be 50-50 at the beginning?” Aguirre said. “And then if we have an issue with the dad who’s got problems, or mom she’s got problems, we can adjust it.
Splitting custody down the middle is not necessarily the best scenario for all families, said Douglas NeJaime, a family law professor at Yale Law School. He also said creating a preference for joint custody could obscure the nuances of individual cases.
“Families come in all shapes and sizes,” NeJaime said. “It’s not clear that a presumption of shared custody is going to promote the interests of children.”
Five Mississippi family and divorce lawyers told Mississippi Today they felt the legislation was unnecessary. Four of them said it was harmful.
“I think it’ll be used to put more women in court than should be,” said Mark Chinn, who has practiced Mississippi law for 47 years and family law for 35 years. Chinn added that he respects that fathers today want to be more involved, but believes that this legislation would only make things harder for women.
To those who aren’t lawyers, the system might appear to blindly favor mothers, but it doesn’t, said Matthew Thompson, who practices family law in Madison and is an adjunct professor at Mississippi College School of Law.
Current state law presumes mothers and fathers are equally entitled to custody of their children. Judges award custody based on a rubric of 12 factors, including employment responsibilities and who provided most of the care before the divorce.
“Dads think, ‘Well I could have done XYZ, but I had to work.’ Well, they’re right, they probably could have – but they didn’t,” said Thompson. “The facts are what’s driving those cases. It’s not an inherent bias.”
That was the case for Terry Winter, a real estate agent in Tupelo, who always wanted to be a mother. After getting married and having children, Winter said she paid for her children’s braces and was their primary caregiver, taking them to doctors’ appointments and sports games. Her marriage unraveled. In 2015, Winter divorced her husband, and was then awarded full custody of their three teenage sons.
If Winter had to pay to prove those things in court, she said she worries her family “would have been living on the street.”
Under the proposed legislation, sole custody would still be awarded to the mother in many cases, said John Grant, a former Rankin County judge who presided over 6,000 divorce cases during his 24 years in the role. But the presumption of joint custody would have to be overcome, and that will waste resources, Grant said.
“It offers false hope in most cases to fathers,” Grant said. “It’s going to promulgate needless litigation.”
In some states where versions of this law already exist, some women who should get custody of children after a divorce don’t. Under Kentucky’s joint custody presumption law, the Wall Street Journal reported about cases where women and children have suffered abuse because the law compelled them to interact with violent ex-spouses and caregivers.
Joy Jones, director of the Mississippi Coalition Against Domestic Violence, said she’s not against the bill. However, she would like to see it amended to make exceptions for domestic violence. If the onus is on the victim to provide “a preponderance of evidence” showing abuse, Jones said she worries that will put women and children in harm’s way. In some cases, Jones said, a victim of such violence might choose to stay in an abusive relationship because it seems better than having their children out of sight.
“The victim might go back to ensure that they can watch and see what’s happening with their children,” Jones said.
Jak Smith served as Winter’s attorney, and he said lawyers stand to benefit from increased litigation if the bill passes. But he worries about the people it would hurt.
“I will make more money if this law passes, but it’s wrong,” Smith said.
For the bill to survive, the House will have to bring it up for a vote by Thursday. If it passes the House, it will be sent to Gov. Tate Reeves. The House also has the option to invite further debate with the Senate.
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