When Can a Chancellor Award Joint Physical Custody Without a Specific Request?
May 8, 2025 § 1 Comment
By: Chancellor Troy Odom, 20th Chancery District, State of Mississippi
Mississippi chancellors are often faced with custody determinations in which neither party has requested joint physical custody. This raises a critical question for chancery practitioners: may a chancellor award joint physical custody if it was not specifically requested in the pleadings?
The Short Answer
Yes. A chancellor retains the discretion to award joint physical custody if such an arrangement serves the best interest of the child — even if neither party expressly requested it.
Common Procedural Scenarios
Consider the following situations:
- A wife files for divorce, requesting sole custody. The husband either fails to answer or also requests sole custody. Neither pleads joint custody.
- A husband initiates a divorce action seeking sole custody. The wife answers in kind. Both consent to divorce on irreconcilable differences but leave custody to the court.
- In a paternity case, the mother seeks sole custody. The father either does not respond or likewise seeks sole custody. Joint custody is never pled.
In these examples, joint custody is not mentioned in any pleading. Still, a chancellor may determine – after applying the Albright factors – that joint custody is in the child’s best interest.
Statutory Framework
Mississippi Code Ann. § 93-5-24 governs custody determinations:
- Subsection (2) provides that joint custody may be awarded in irreconcilable differences divorces, “upon application of both parents.”
- Subsection (3) states that joint custody may be awarded in all other custody cases “upon application of on or both parents.”
While this language suggests join custody must be affirmatively requested, later case law has clarified the scope of judicial discretion in this area.
The Morris-Crider Shift
In Morris v. Morris, 758 So. 2d 1020 (Miss. Ct. App. 1999), the Court of Appeals interpreted the § 93-5-24 narrowly. There, both parties sought sole custody and failed to plead joint custody. The chancellor awarded joint custody, but the appellate court reversed, holding that the statute required at least one party to request joint custody before it could be awarded.
Judge Joe Lee dissented, arguing that by submitting the matter to the chancellor, the parties had effectively invited the court to determine the form of custody in the child’s best interest.
The Mississippi Supreme Court later adopted Judge Lee’s view in Crider v. Crider, 904 So. 2d 142 (Miss. 2005). In Crider, both parties filed fault-based divorce actions and each requested sole custody. They consented to an irreconcilable differences divorce and asked the court to decide custody. The chancellor awarded joint custody. The Supreme Court (Justice Cobb writing), upheld that decision and overruled Morris, holding:
A chancellor is never obliged to ignore a child’s best interest . . .; in fact, a chancellor is bound to consider the child’s best interest above all else.
Crider, 904 So. 2d at 144 (quoting Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996))
The Crider Court interpreted “application of both parties” broadly, concluding that when parties submit custody to the court – even if phrased as a dispute over “primary custody” – they authorize the chancellor to make a full best-interest analysis, including awarding joint custody. (Crider, 904 So. 2d at 147).
Extension to Paternity and Third-Party Cases
The Mississippi courts have since extended the Crider analysis beyond traditional divorce actions.
In Brown v. Anslum, 270 So. 3d 69 (Miss. Ct. App. 2018), both parents sought sole custody in a paternity action. The chancellor awarded joint custody joint custody after a trial. Citing Crider, the Court of Appeals affirmed, holding that the parties’ request for sole custody constituted an application for custody sufficient to allow the court to award joint custody.
The Mississippi Supreme Court reinforced this principle in Darby v. Combs, 229 So. 3d 108 (Miss. 2017), a third-party custody dispute between maternal and paternal grandparents. The Court held that § 93-5-24 and the reasoning of Crider applied equally in such cases, affirming the chancellor’s authority to award joint custody even among thid parties. (Darby, 229 So. 3d at 114)
Practical Takeaways for Practitioners
Chancellors possess broad discretion to craft custody arrangements that serve the child’s best interests. The act of submitting a custody issue to the court – whether in divorce, paternity, or third-party case – constitutes an “application” sufficient to allow the court to award joint custody.
Pleadings requesting sole custody do not tie the chancellor’s hands. Rather, the paramount consideration remains the best interest of the child, as established through the Albright factors.
The Better Chancery Practice Blog 
As a side note: I gave a 15 minute CLE on this topic at the Mississippi Bar Family Law Section’s “Hot Tips” CLE. I had typed up my presentation word for word. I uploaded that speech into Chat GPT and asked it to format my speech into a blog post for professionals. What you see is the result. TFO