July 17, 2012 § 2 Comments

In September, 2010, a special chancellor granted Sharon and Allen Flowers an irreconcilable differences divorce and adjudicated custody, awarding it to Allen with Sharon having visitation. Sharon was displeased with the result and appealed

The COA case of Flowers v. Flowers, decided June 19, 2012, includes several points that I found interesting:

  • Sharon claimed that the chancellor improperly used denial of custody to sanction her for a post-separation relationship. Is it just me, or is this claim automatically raised any and every time that the court finds against a party on the “moral fitness” Albright factor?  Chancellors are required to make a finding on every Albright factor for which there is evidence in the record. Here there was evidence that Sharon had initially lied to the GAL about the relationship, and then admitted it. Had the chancellor not taken that into consideration, it would have been error. There is nothing in Judge Ishee’s opinion that would lead one to conclude that the chancellor based his decision solely or even mostly on this factor. Adultery may be the factor among others that tips the scales, but it may never be the factor standing alone that determines custody.
  • The chancellor found that “Both children are male children and therefore this factor favors the father.” The COA found no error on this point, and cited Reed v. Fair, 56 So.3d 577, 582 (Miss. App. 2010). This is a curious conclusion, in my humble opinion. What exactly is the basis for such a finding? What is the socio-scientific basis, if any, upon which to base such a conclusion? Had the chancellor found that the male gender of the children favored the mother, would that have been error? Now, there may have been evidence in the record of differences in disciplinary problems or behavior under the suprevision of males as opposed to females, or something of that sort, but that is not reflected in the appellate opinion. In Reed v. Fair, the court upheld the chancellor’s finding that the twelve-year-old child needed the influence of a man in his life since there were no other male family members available and there had been a need for counselling. Fair enough (no pun intended). But to make the naked assertion that a child of one gender should be in the custody of the parent of the same gender seems simple-minded to me (no offense to the learned chancellor in the Flowers case). There are studies that establish that younger males are actually better off under the influence of the mother. And there is MCA 93-5-24(7), which says that “There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.” Isn’t the same-gender line of thinking based precisely on such a presumption?
  • The COA opinion says that “[Sharon] further argues that the [sex-and-health] factors should have been grouped together as one factor, instead of treating them as two separate factors.” She goes on to argue that the result would have been that she would have prevailed in an additional category, adding one more tally to her column, and perhaps giving her the higher score that would have given her the victory. The flaw in her argument, though is that she could prevail in several more categories than Allen and still lose custody. Albright is not a mathematical formula or a scorecard. It is a matrix for the trial judge to use in making sure that all factors that bear on the best interest of the child in a custody case are considered, and in turn used by the appellate courts to evaluate whether the chancellor did her job properly.

If all of the Albright factors that apply in a given case are considered and addressed by the chancellor, and there is substantial evidence to support the chancellor’s decision, then the chancellor’s decision should be affirmed. Any quibbling about this one factor or that, or trying to readjust the “scoresheet,” should be brushed aside on appeal.

Only last month, in the case of Easley v. Easley, the COA again addressed an appellant’s argument that he should have been awarded sole custody rather than joint custody because he had a slight edge in the Albright scorecard:

[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 case of Jackson v. Jackson, 82 So.3d 644, 646 (Miss.App. 2011), is also on point.

In one case I tried, I found for the mother in most of the Albright categories. When it came to the mental health of the parties, though, I found that her history of and active mental illness, and her refusal to deal therapeutically with it, overshadowed all of the other factors combined, and I awarded custody to the father. Had I treated the Albright factors as a winner-take-all scoreboard, I would have awarded the two little girls (gender favored the mom?) to an actively delusional, psychotic woman who left a psychiatric hospital against medical advice and who would not take her medication. That case was not appealed, but I am confident that it would have been affirmed.

Perhaps some of the confusion stems from appellate court decisions that direct chancellors to make a finding as to which party prevailed on each factor, giving the impression that the prevailing party “wins on points.” That’s not the law.

I suggest that, when you try a custody case, you should focus your time, attention and effort on developing quality evidence rather than a quantity of evidence designed to put points on the board. The former strategy will work for the best interest of the children. The latter may wind up winning the scoreboard and losing the game.

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