NOT A MATHEMATICAL FORMULA

February 8, 2012 § Leave a comment

Some lawyers approach the Albright factors like some kind of score card. I remind you, however, that “The Albright factors are a guide. They are not the equivalent of a mathematical formula.” Lawrence v. Lawrence, 956 So.2d 251, 258 (Miss. App. 2006); Lee v. Lee, 798 So.2d 1284, 1288 (Miss. 2001).

In Divers v. Divers, 856 So.2d 370, 376 (Miss. App. 2003) the COA said:

In the difficult matter of determining child custody in divorce proceedings, the chancellor is necessarily vested with substantial discretion. Shepherd v. Shepherd, 769 So.2d 242, 245(¶ 11) (Miss.Ct.App.2000). In Hamilton v. Hamilton, this Court reviewed the record in that case and found that the chancellor should consider each Albright factor specifically in her decision for child custody. Id at (¶ 10). See also Hayes v. Rounds, 658 So.2d 863, 865 (Miss.1995). We found that it is not enough for the chancellor to simply state that she considered these factors. Hamilton, 755 So.2d at 530-31; Hayes, 658 So.2d at 865. If substantial evidence exists to support the chancellor’s finding of fact, broad discretion is afforded her determination. McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994).

In Johnson v. Gray, 859 So.2d 1006, 1013 (Miss. 2003), the supreme court said:

… a chancellor is never obliged to ignore a child’s best interest in weighing a custody change; in fact, a chancellor is bound to consider the child’s best interest above all else. ‘Above all, in ‘modification cases, as in original awards of custody,’ we never depart from our polestar consideration: the best interest and welfare of the child.’ ” Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996) (quoting Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993)) (citing Marascalco, 445 So.2d at 1382). See also Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). A modification of custody is warranted in the event that the moving parent successfully shows that an application of the Albright factors reveals that there had been a material change in those circumstances which has an adverse effect on the child and modification of custody would be in the child’s best interest. Sanford v. Arinder, 800 So.2d 1267, 1272 (Miss.Ct.App.2001).

Johnson also stands for the proposition that the chancellor must also take into account the credibility and demeanor of witnesses, and weight of the evidence.

In Weeks v. Weeks, 989 So.2d 408, 411 (Miss. App. 2008), the court affirmed the trial judge’s Abright findings even though the chancellor did not designate which party had “won” each factor. This is because Albright is not a scorecard. It is a template for the court to make findings pertinent to the parents’ relative parenting ability and what is in the best interest of the child. Thus, one or two factors might outweigh all the others combined. For example, the mother’s recent history of psychosis alone may outweigh the fact that she prevails in every other category. But the evidence to support an award of custody based on one or two factors must be strong, and the factors themselves must be substantially related to best interest of the children.

As to how detailed the chancellor’s findings need to be, the COA in Phillips v. Phillips, 45 So.3d 684, 695 (Miss. App. 2010), stated at ¶ 37 that ” … we are not aware of any requirement that the chancellor must acknowledge all of the facts in his analysis of the Albright factors that were presented at trial. The chancellor obviously listened to the testimony at trial — negative and positive for both parties — and made his opinion accordingly.”

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