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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.

PLEADING THAT WHICH MUST BE PLED

July 26, 2011 § 2 Comments

If you will read the statutes that apply in your case, you will find exactly the language you need to plead a proper claim and lay out jurisdiction and venue. It’s right there in the code. The closer you adhere to the statutory language, the more likely it is that your complaint will withstand an MRCP 12(b)(6) motion.

For example, in a divorce case, you must plead all of the following: either one or more grounds set out in MCA §93-5-1, and/or irreconcilable differences as in MCA § 93-5-2; and proper venue as in MCA § 93-5-11; and that one of the parties meets the residence requirement of MCA § 93-5-5. All of the language you need to do that is right there in the statutes for your penalty-free plagiarization.

As a side note, many older chancellors through the years required the complaint to quote the language of the residency statute for divorce that, ” … [plaintiff] has been an actual bona fide resident within this state for six (6) months next preceding the commencement of this suit.” If you varied by a single word, you had pled yourself out of court. There may still be chancellors adhering to that practice. Whether your chancellor does or not, you can’t go wrong tracking the language of the statute.

Some lawyers copy other lawyers’ pleadings. That’s fine as long as the copied pleadings are adequate. Several years ago a few new lawyers used pleadings filed by a weathered, older lawyer as their template. You could tell because they slavishly replicated the older lawyer’s misstatement that “Plaintiff is entitled to a divorce from the defendant on the ground of habitual cruel and inhuman treatment as codiciled in Section 93-5-1, MCA.” If you’re going to copy, at least put some thought into what you’re doing.

The MRCP offer another source of pleading material. For instance, if you will read Rule 57, you will find every word you need to plead to obtain a declaratory judgment. Same with Rule 56 summary judgment. Same with Rule 65 for temporary restraining orders, temporary injunctions, and preliminary and permanent injunctions.

In modification of custody cases, you will be out of court on your ear unless you plead specifically in your petition that (1) there has been a material change in circumstances that (2) is having or has had an adverse effect on the minor child(ren), and (3) that it is in the best interest of the child(ren) to change custody to your client. McMurry v. Sadler, 846 So.2d 240, 243-4 (Miss. App. 2002). Note that in McMurry, the petitioner had pled only a material change justifying modification. The respondent moved to dismiss for failure to state a claim at the outset of trial, and the judge even prompted counsel that the word “adverse” was absent. The judge dismissed the pleading with leave to amend, and counsel for petitioner moved ore tenus to amend to add the language that an adverse effect would occur if modification were not granted. At that point, the chancellor found the pleadings insufficient as a matter of law and dismissed with prejudice. The COA affirmed.

As McMurry illustrates, faulty pleading will cause nothing but trouble. And it can be fatal. Look what happened there: the judge granted leave to amend as is prescribed in MRCP 12(b), but when counsel failed to fix the problem by amendment, the judge took the case off of the respirator and it died.

What if counsel for the respondent had said nothing about the adequacy of the pleadings before trial, but then had objected to every question about any adverse effect on the basis that it had not been pled? I saw that on more than one occasion when I was in practice, and the judge always sustained the objections, effectively gutting the petitioner’s case, or, more accurately, letting it gut itself. If you’re in that situation and you’re not too discombulated to think clearly, you might try making a Rule 15 motion for leave to amend. Maybe the judge will let you off the hook. At least you will have it in the record.

COMPLYING WITH RULE 10(d), MRCP

November 30, 2010 § Leave a comment

Rule 10(d), MRCP, states “Whenever any claim or defense is founded on an account or other written instrument, a copy thereof should be attached to or filed with the pleading unless justification for its omission is stated in the pleading.”

Originally, Rule 10(d) required a copy of any writing to be attached as an exhibit to the pleading. That requirement was removed in 2000 to conform to the Mississippi Supreme Court’s ruling in Gilchrist Machine Co. v. Ross, 493 So.2d 1288, 1292, n. 1 (Miss. 1986); see also, Edwards v. Beasley, 577 So.2d 384 (Miss. 1991); and Bryant, Inc. v. Walters, 493 So.2d 933, 938 (Miss. 1986).

So what do you need to do to avoid an evidentiary problem under Rule 10(d)?

As the comment states, ” … it remains good practice normally to attach such documents as part of a clear statement of a claim or defense,” and the rule does specifically state that a copy should be attached unless justification for not attaching it is stated in the pleading. The comment points out that if a foundation document is not attached to an otherwise sufficient pleading, it may be obtained through discovery.

From the cases, it appears that the documents offered at trial that were not attached would likely be admitted, unless no justification was given in the pleading and efforts to discover them were unsuccessful.