Attorneys and judges statewide are voicing opposition to a bill that would make joint custody of children the standard in all divorce cases. If the proposal becomes law, tens of thousands of Mississippi parents could be affected by the policy, which only exists in five other states.
Proponents say the legislation would level the playing field for fathers and courts would reserve the right to award sole custody in cases that warrant it. But family lawyers who spoke to Mississippi Today say overriding a presumption of joint custody will be difficult and too many vulnerable parents will not receive sole custody when that’s best for them and their children. Critics say the legislation will not work well in practice, and it may violate the state constitution.
While lawmakers are still hashing out details, versions of the bill garnered overwhelming support in both chambers.
John Hatcher, a Booneville-based attorney, served as chancery court judge for eight counties in northeast Mississippi for 12 years. He told Mississippi Today he believes the bill is well-intended, but thinks it would be a “travesty if it passes.”
Judges should give children an impartial hearing without preference for a particular outcome, and there should be no presumption that each parent deserves equal time parenting, Hatcher said.
“No person can have property rights over children,” Hatcher said. “They are not chattel.”
The legislation is also arguably at odds with the Mississippi Constitution, Hatcher said. Under state law, the chancery court has complete jurisdiction over divorce, alimony and the matters of children. Hatcher sees this bill as an attempt to diminish the court’s power.
“Now the Legislature is going to be the superior guardian?” said Hatcher. “It’s wrong. I don’t believe it’s constitutional.”
Mississippi Today spoke to eight divorce attorneys in the state about the issue. They all said they were against the bill. Seven said it would be detrimental to women and children.
Mack Varner, who has been practicing family law for 50 years in Vicksburg, was shocked to hear the bill’s author, Rep. Shane Aguirre, a Republican from Tupelo, is not an attorney but an accountant. Only 25% of Mississippi’s lawmakers are attorneys, and most don’t include family law in their area of practice.
“The bottom line is, they don’t know what they’re doing,” Varner said.
If passed, Varner believes the legislation would help fathers evade child support.
“In a lot of instances, they don’t want joint custody,” Varner said. “They just don’t want to have to pay child support.”
Even under the current system, there are women who have joint custody but end up providing the majority of caregiving.
Pamela Stokes of Madison endured a decade-long custody battle with her ex-husband, whom she divorced in 2006. In the beginning, they agreed on joint custody of their three children. But the children were primarily living with her, said Stokes, because her ex-husband was regularly intoxicated and unable to care for them.
Mississippi Today reviewed court records showing that in 2010, the court ordered Stokes’ ex-husband, Robert Martin III, to undergo regular drug and alcohol testing. Martin did not respond to a request for comment from Mississippi Today.
Stokes said she had almost no money after her divorce. She had to reinvent herself several times, worked in real estate and government contracts and eventually established her own swimming pool business, which she still operates. The money her ex-husband gave Stokes in monthly child support payments didn’t even cover the cost of daycare, she said, much less activities, food or clothing. As a single mother, she said the odds were stacked against her.
“They rape you financially and reduce you to poverty,” Stokes said of the legal system.
What is in the best interest of children?
Research shows co-parenting is good for many children in low-conflict situations. But parents in low-conflict situations are often amicable and agree to joint custody outside of the court, experts told Mississippi Today, while cases that are litigated are typically more contentious. Those experts say mandating that courts use joint custody as a standard only serves to tie judges’ hands.
While judges would still have the final say, a presumption can be difficult to override, said Douglas NeJaime, a family law professor at Yale Law School. And Mississippi’s legislation offers no exceptions for cases involving domestic violence or high conflict. That is problematic, NeJaime said.
“Those people might stay married rather than get divorced and have to confront this presumption of shared parenting time,” NeJaime said.
Sen. Brice Wiggins, a Republican from Pascagoula, and Sen. Joey Fillingane, a Republican from Sumrall, serve on the Judiciary A Committee, where Lt. Gov. Delbert Hosemann originally sent the bill. Wiggins and Fillingane, two of six lawmakers tasked with deciding the final details of the bill, told Mississippi Today that the bill would create more equal opportunity for fathers to be involved in their children’s lives. Wiggins and Fillingane both practice family law and said they see the legislation as progressive and reflective of families today.
“In 2026, we shouldn’t be giving preferences to one gender over the other as it relates to custody,” Fillingane said.
Fathers should receive a fair hearing and be considered for custody, said Kelly Williams, a Ridgeland-based attorney and a child welfare law specialist certified by the National Association of Counsel for Children. But she said this happens under the current system.
Doling out more rulings of 50-50 custody might give the appearance of equality, she said, but it will make the system less equitable – particularly for survivors of domestic violence, parents in low-income households and stay-at-home mothers.
More importantly, the argument that fathers deserve a system they perceive to be more fair is misguided, William said.
“We don’t take the focus off the best interest of children to satisfy or level the playing field for litigants,” Williams said. “That doesn’t even make sense.”
The bill is still in negotiations. The Senate made minor changes to the House bill, but both chambers’ versions would make joint custody the standard in all divorce cases if Gov. Tate Reeves signs the bill into law.
Lawmakers must agree on language by 8 p.m. Monday for the bill to survive, and the legislation would then go to the full House and Senate for a final vote.
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