TRIAL BY CHECKLIST: CHILD CUSTODY FACTORS
July 19, 2010 § 32 Comments
A practice tip about trial factors is here.
The factors that the court must consider in awarding child custody are set out in Albright vs. Albright, 437 So.2d 1003, 1005 (Miss. 1983).
The factors are:
- Age, health and gender of the child.
- Parent having continuity of care prior to the separation.
- Parent with best parenting skills and willingness and capacity to provide primary child care.
- Employment of the parent and responsibilities of that employment.
- Physical and mental health and age of the parent.
- Emotional ties of parent to child.
- Moral fitness of the parent.
- Home, school and coomunity record of the child.
- Preference of the child at age sufficient to express a preference.
- Stability of parent’s home environment and employment of each parent.
- Relative financial situation of the parents.
- Difference in religion of the parents.
- Differences in personal values of the parents.
- Differences in lifestyle of the parents.
- Other factors relevant to the parent-child relationship.
The Albright factors are not to be applied in the manner of a scoresheet or mathematical formula. Lee v. Lee, 798 So.2d 1284, 1288 (Miss. 2001). The Chancellor may give special weight to one, two or several factors to determine the outcome. Divers v. Divers, 856 So.2d 370, 376 (Miss. App. 2003). The Chancellor has the ultimate discretion to judge the weight and credibility of evidence. Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss. 1994); Johnson v. Gray, 859 So.2d 1006, 1013-1014 (Miss. 2003).
In an original action for custody, the Albright factors govern the award.
In a modification of custody case, the proponent must prove 3 things, in combination, in order to prevail:
- That there has been a change in circumstances of the custodial parent material to the issue of custody since entry of the last judgment; and
- That the change in circumstances has an adverse effect on the minor child; and, if 1 and 2 are proven
- That it is in the best interest of the minor child to change custody. Determination of the child’s best interest is based on application of the Albright factors to the facts of the case.
The standard for modification is like a three-legged stool; if one leg is missing, the stool can not stand. It is a three-prong or three-part test.
There is one exception to the three-part test for modification. In the case of Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996), the Mississippi Supreme Court held that it is not necessary to prove adverse effect where the child is in an inherently dangerous or unsuitable situation, as where the custodial parent is using drugs. Evidence of the Albright factors should still be offered in such cases. Some argue that Albright proof would not be necessary in a case where the proof shows a clearly dangerous circumstance, but it is this judge’s position that proof of the Albright factors in such a case would make the case airtight.
There have been cases following Riley that have explained and even expanded on the concept, so that now there is arguably a “totality of the circumstances” test to justify modification. Some attorneys have taken the position that the “totality” is an alternative avenue to the three-pronged test. This court is not convinced, and takes the position that Riley and its progeny apply in extreme circumstances where the proof shows that the child is showing no adverse effects despite being in an inherently dangerous situation. In my opinion, the Riley line of cases is not intended to create a new remedy where there is no inherently dangerous situation and the proof is not strong enough to satisfy the three-prong test.
The Albright factors apply only to physical custody, and the Chancellor is not required to address them in considering whether to grant joint legal custody only. Palculict v. Palculict, 22 So.3d 293 (Miss. App. 2009).