Divorce & Child Custody Legal Issues Facing Mississippi’s Lesbians, Gays, Bisexuals, Transgender Persons And Their Families

Published on March 28 2010 No Comment

So you’re out of the closet now and you or your spouse wants a divorce.

What do you need to know?

First, Mississippi is not a pure no-fault divorce state, meaning one spouse cannot decide on his or her own to end a marriage.

There are 2 ways to get a divorce in Mississippi Chancery Courts.

  1. The easiest and quickest way is to get your spouse to agree to the divorce.
  2. The other way is to prove fault of a spouse.

For the first way, you and your spouse have to consent to an irreconcilable differences (I/D) divorce, which has 5 requirements. The 5 requirements are:

  1. You and your spouse must agree in writing to an I/D divorce and must specifically request an I/D divorce.
  2. Your request for an I/D divorce must be on file with your county’s Chancery Clerk for 60 days.
  3. You and your spouse must agree in writing to the terms of the divorce OR submit terms to the court acknowledging in specific statutory language that the court’s disposition of terms will be binding.
  4. The Chancery Court must approve the terms for the I/D divorce to be valid.
  5. All issues must be resolved before an I/D divorce is granted.

If your spouse will not agree to divorce, you must prove one of 12 fault-based divorce grounds. The 2 most commonly-used grounds are adultery and habitual, cruel, and inhuman treatment. Three other grounds are desertion (continuous for one year), habitual drunkenness, and habitual drug use.


To prove adultery, a spouse either has to have direct or circumstantial proof.

  1. Direct proof is either an admission by a spouse OR testimony from a witness of the sexual act.
  2. Circumstantial proof is evidence showing an adulterous disposition (primarily infatuation) AND opportunity to satisfy such infatuation.

Does sex between persons of the same gender constitute adultery?

The Mississippi appellate courts have never addressed this question. However, decisions from other states suggest that sex between persons of the same gender counts as adultery.

Habitual, cruel, and inhuman treatment

Habitual, cruel, and inhuman treatment has 3 elements you must prove.

  1. The husband’s or wife’s conduct must place his or her spouse in reasonable apprehension of danger to life, limb or health (physically, mentally or emotionally) OR be unnatural and revolting.
  2. The husband’s or wife’s conduct must have a negative impact on his or her spouse’s health.
  3. The impact on the spouse must have been caused by the husband’s or wife’s conduct.

Examples of such actions include:

  • physical violence,
  • verbal or emotional abuse,
  • alcohol or drug problems,
  • obsessive or addictive behavior,
  • failing to assist in any chores,
  • lack of affection or emotional support,
  • willful failure to support,
  • suicide attempts,
  • abusive conduct toward children,
  • unfounded accusations,
  • controlling behavior,
  • extreme jealousy,
  • statements about a spouse’s undesirability,
  • aberrant sexual behavior, and
  • refusal to have sex for an extended period of time.

So what really is habitual, cruel, and inhuman treatment?

Is a same-sex relationship considered habitual, cruel, and inhuman treatment of your spouse?

A same-sex relationship may be a factor in finding habitual, cruel, and inhuman treatment. Morris v. Morris, 783 So. 2d 681 (Miss. 2001).

Is cross dressing considered habitual, cruel, and inhuman treatment?

A divorce can be granted based on the fact that the husband dresses in women’s clothing. Cherry v. Cherry, 593 So. 2d 13 (Miss. 1991).

Is watching pornography considered habitual, cruel, and inhuman treatment?

A husband’s use of pornography is not, in and of itself, a basis for divorce. Hodge v. Hodge, 837 So. 2d 786 (Miss. Ct. App. 2003); Tedford v. Tedford, 856 So. 2d 753 (Miss. Ct. App. 2003).

Child Custody

As if figuring out how to get divorced wasn’t difficult enough, add a dispute over custody of the children in the mix and you can have a complicated situation.

A Chancery Court may award any combination of legal and physical custody using 4 presumptions and 12 factors.

The 4 presumptions are:

  • Presumption of parental equality
  • Presumption that biological parents are best equipped to have custody of children
  • Presumption against awarding custody to a violent spouse
  • Presumption in favor of awarding joint custody if spouses request joint custody

The 12 factors are:

  1. Continuity of care before you and your spouse separated is the most important factor – Person who has been the child’s primary caretaker has a substantial advantage.
  2. Gender of the child – Courts are likely to award custody of girls to mother and boys to father.
  3. Age of the child – If the child is less than 4, then this factor favors the mother.
  4. Preference of a child over 12 is considered
  5. Health needs of the child 6. Parenting skills of each spouse
  6. Child-care capability/Employment responsibilities of each parent
  7. Parents’ physical and mental health and age
  8. Emotional ties of parent and child
  9. Home, school, and community record of child
  10. Moral fitness of each parent
  11. Stability of home environment and employment of each parent Albright v. Albright, 437 So. 2d 1003 (Miss. 1983).

Courts may also:

  • Try not to separate siblings;
  • Consider whether one parent will try to alienate the child;
  • Consider whether one parent takes the child to church.

Moral Fitness as 1 of the 12 Factors

How does a person’s sexual orientation affect custody? In 2001 the Mississippi Supreme Court abolished the rule that a parent in a same-sex relationship does not get custody of the children. Hollon v. Hollon, 784 So. 2d 943 (Miss. 2001). Being in a same-sex relationship is now one of many factors courts consider to determine a child’s best interest. The key is whether the relationship has an adverse effect on the children.

In a 2002 case, the Mississippi Court of Appeals reversed a custody decision that placed too much emphasis on a mother’s lesbian relationship; and the Court said,

“it is of no consequence that a mother was having an affair with a woman rather than a man.” Fulk v. Fulk, 827 So. 2d 736, 741 (Miss. Ct. App. 2002) (quoting Plaxico v. Michael, 735 So. 2d 1036, 1039-40 (Miss. 1999). However, if other factors also support denial of custody, an award will be upheld even though the decision was based partly on the existence of a same-sex relationship.

For example:

Custody was properly granted to a father who was married and in a stable home and employment rather than to the mother, who had only part-time income, was beginning a new and uncertain business, was living with a lesbian partner, and planned to relocate. S.B. v. L.W., 793 So. 2d 656 (Miss. Ct. App. 2001).

Custody was properly modified to a father because the mother had lived with three different women in a short span of time, shared a bedroom with her current girlfriend, and watched sexual videos with that girlfriend in the children’s presence. The chancellor found that the mother’s conduct had an adverse effect on the children. Davidson v. Coit, 899 So. 2d 904 (Miss. Ct. App. 2005).

The Court of Appeals emphasized that sexual relationships may not, in themselves, be a basis for custody decisions, but noted that custody may be modified if a relationship is coupled with other behavior that is harmful to a child or if the relationship clearly endangers the child’s well-being.

What about visitation rights for a non-custodial parent in a same-sex relationship?

Custody modification was refused to a father who was in a long-term, same-sex relationship even though the mother was married to an alcoholic ex-felon who repeatedly hit her. However, the father’s visitation rights with the child could not be limited to exclude his long-time partner from the child’s presence.

Weigand v. Houghton, 730 So. 2d 581 (Miss. 1999).

This information is meant solely for informational use and does not constitute legal advice. One should consult with an attorney when dealing with divorce or child custody issues. It was created in the Spring of 2009 by law student Hays Burchfield at the University of Mississippi School of Law under the supervision of Attorney Cameron Abel and Family Law Professor Deborah Bell.