JOINT CUSTODY IN THE CHILDREN’S BEST INTEREST
June 19, 2012 § 3 Comments
The case of Easley v. Easley, decided by the COA June 5, 2012, is the latest iteration of the principle that the trial court may award joint legal custody in an irreconcilable differences consent divorce even where there is no specific joint request for it by the parties.
In Easley, the parties consented to an irreconcilable differences divorce and submitted the issue of child custody to the chancellor for adjudication. The chancellor found that joint custody would be in the best interest of the children, but concluded that he could not award it because of the language of MCA 93-5-24(2), which reads, “Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.” Since the Easleys had not both applied to the court specifically for joint custody, the chancellor awarded custody to the father and the mother appealed.
The COA reversed and remanded, citing and quoting Crider v. Crider, 904 So.2d 142, 147 (Miss. 2005), as follows:
It is logical and reasonable that “application of both parties” exists when both parties consent to allowing the court to determine custody. The fact that the parties request that the court determine which parent is to receive “primary custody” does not alter this. The parties are allowing the court to determine what form of custody is in the best interest of the child. If joint custody is determined to be in the best interest of the child using court-specified factors, i.e., the Albright factors, the parties should not be able to prohibit this by the wording of the consent. It would be the same if the parties requested that the court determine which party will receive “all marital assets.” The chancellor has the responsibility to determine how to best distribute the assets according to court-specified factors (the Ferguson factors) and must not be bound by the wording of the consent to award all marital assets to one party.
The COA opinion goes on to reject the appellee’s argument that he prevailed slightly in trial court’s adjudication of the Albright factors, so that the award of exclsuive custody to him should be upheld. Judge Fair’s opinion cited and quoted Jackson v. Jackson, 82 So.3d 644, 646 (Miss.App. 2011), as contrary authority:
[The father’s] argument appears to be based on the mistaken assumption that joint custody cannot be awarded if more of the Albright factors favor him, however slightly. We see no reason why some marginal advantage of one parent should preclude the chancellor from awarding joint custody, so long as both parents are fit and joint custody is found to be in the children’s best interest. See Phillips v. Phillips, 45 So. 3d 684, 694 (¶30) (Miss. Ct. App. 2010). “The Albright factors are a guide. They are not the equivalent of a mathematical formula.” Lawrence v. Lawrence, 956 So. 2d 251, 258 (¶23) (Miss. Ct. App. 2006) (citation and quotation omitted).
The COA opinion closes with a remand to the trial court to consider the children’s present circumstances as well as those existing at the time of the November, 2010, trial, and closes with this language at the end of ¶11: “If joint custody remains in the children’s best interest, the chancellor should not hesitate to award it.”
A previous post focusing on Crider is here.
As for the Crider court’s reference to the term “primary custody,” you should keep in mind that the addition of the term “primary” to custody adds no legal meaning whatsoever. You can read a post on that point here.
A previous post about decision-making in joint legal custody arrangements is here.
And some general observations about joint custody are in a post you will find here.
I think Crider is clear that any time you submit custody to the court for adjudication in an irreconcilable differences divorce via consent you are opening the door to an award of joint custody, no matter what the language of the consent, and you can not word the consent in such a way as to rule it out.