October 22, 2012 § Leave a comment

Back in July, in a post entitled “Quibbling with Albright,” I questioned the wisdom of attorneys who at trial and on appeal concentrate their efforts on a scoresheet-type approach to the child custody factors. As I said there:

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.

In O’Briant v. O’Briant, decided by the COA October 16, 2012, Judge Maxwell hammered the point home better and with more authority than I can muster. The case involved a custody dispute between Jonathan and Olivia O’Briant in Madison County Chancery Court. Here’s what Judge Maxwell said:

¶14. Jonathan argues the chancellor misapplied Albright because she miscalculated one of the factors and failed to weigh the evidence properly. Because the chancellor is to use Albright as a guide, not a formula, and weigh the evidence as she sees fit, we find no reversible error.

¶15. “Determining custody of a child is not an exact science.” Lee v. Lee, 798 So. 2d 1284, 1288 (¶15) (Miss. 2001). Instead, it “is one of the most difficult decisions that courts must make.” Brewer v. Brewer, 919 So. 2d 135, 141 (¶21) (Miss. Ct. App. 2005). In Albright, the Mississippi Supreme Court gave a list of factors to consider to help chancellors “navigat[e] what is usually a labyrinth of interests and emotions.” Lee, 798 So. 2d at 1288 (¶15) (citing Albright, 437 So. 2d at 1005). The Albright factors provide chancellors guidance, not a mathematical formula. Id. “[E]ven when the trial judge sensitively assesses the factors noted in Albright and [its] progeny, the best the judiciary can offer is a good guess.” Love v. Love, 74 So. 3d 928, 932 (¶17) (Miss. Ct. App. 2011) (quoting Buchanan v. Buchanan, 587 So. 2d 892, 897 (Miss. 1991)).

¶16. Jonathan argues the chancellor committed legal error because she “recast” one Albright factor into two—causing the factor to favor Olivia. Jonathan analogizes this perceived error to an umpire botching the number of outs in an inning. But unlike baseball, an Albright analysis is not premised solely on a scoring system to determine which parent “wins.” Blakely v. Blakely, 88 So. 3d 798, 803 (¶17) (Miss. Ct. App. 2012) (citing Lee, 798 So. 2d at 1288 (¶15)). “Instead, the Albright factors exist to ensure the chancellor considers all the relevant facts before she reaches a decision.” Id. And our review for manifest error is not a mechanical check on the chancellor’s score card to see if she “tallied” each parent’s score correctly. See id. Instead, we ask whether the chancellor considered all relevant facts, giving deference to the weight she assigns each factor.

¶17. Here, the chancellor considered all the relevant facts by applying each Albright factor:

(1) age, health, and sex of the child;

(2) a determination of the parent that has had the continuity of care prior to the separation;

(3) which has the best parenting skills and which has the willingness and capacity to provide primary child care;

(4) the employment of the parent and responsibilities of that employment;

(5) physical and mental health and age of the parents;

(6) emotional ties of parent and child;

(7) moral fitness of the parents;

(8) the home, school and community record of the child;

(9) the preference of the child at the age sufficient to express a preference by law;

(10) stability of home environment and employment of each parent and other factors relevant to the parent-child relationship.

Lee, 798 So. 2d at 1288 (¶15) (citing Albright, 437 So. 2d at 1005). While Jonathan takes issue with the chancellor addressing the stability of each parent’s employment when considering their employment responsibilities, then later in her order, assessing the stability of their respective home environments, he cannot argue the chancellor failed to consider these relevant factors. Thus, we find no “misapplication” of Albright occurred.

The primary driving force behind all of the foregoing is that it is the chancellor’s exclusive province to judge the weight of the evidence. Judge Maxwell’s opinion continues:

¶18. Jonathan also contests the chancellor’s findings as to which parent demonstrated the continuity of care prior to the separation, which has the best parenting skills, and which has the willingness and capacity to provide primary child care, as well as her findings on the physical and mental health and age of the parents. He specifically claims the chancellor ignored evidence of his good parenting skills and Olivia’s bad parenting skills, “penaliz[ing]” rather than crediting him for having his mother next door to help with Maguire. He also suggests the chancellor put too much weight on the three months he was committed to the Mississippi State Hospital at Whitfield in 2000. These challenges are premised on the chancellor’s evidentiary and credibility assessments.

¶19. In our narrow review we give deference to the chancellor’s factual findings, asking if they were supported by substantial evidence. See, e.g., Wilson v. Wilson, 53 So. 3d 865, 867-68 (¶¶7, 10) (Miss. Ct. App. 2011). “The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts.” Johnson v. Gray, 859 So. 2d 1006, 1014 (¶36) (Miss. 2003) (quoting Chamblee v. Chamblee, 637 So. 2d 850, 860 (Miss. 1994)). “‘[T]he chancellor has the ultimate discretion to weigh the evidence the way she sees fit’ in determining where the child’s best interest lies.” Blakely, 88 So. 3d at 803 (¶17) (quoting Johnson, 859 So. 2d at 1013-14 (¶36)).

The court found that the chancellor’s decision was supported by substantial evidence and affirmed it.

This is yet another example of a mistaken approach to Albright. The danger in tailoring your Albright proof to try to prevail on the scoreboard is that you will lose sight of the larger picture, which is what is actually in the best interest of the child. One parent may prevail in more categories than the other and yet not prevail on the issue of custody. When you plan how to present your case, don’t focus on trying to “win” more factors; focus instead on what will convince the court that the best interest of the children lies in being in your client’s custody. Each judge has his or her own ideas of the factors that are most important. Learn what your chancellor’s preferences are, and design your case accordingly.

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