Custody as Punishment
October 20, 2014 § 3 Comments
The MSSC’s decision in Borden v. Borden, handed down October 9, 2014, is a reminder of the principle that fault should not be used as a sanction in child custody awards.
You can read the decision for yourself. The upshot of it is that the chancellor found against the mother in a custody fight, based on her inappropriate conduct. The chancellor found against the mother on three Albright factors: parenting skills; moral fitness; and stable home environment. The evidence established that the woman had inappropriate extramarital contacts, none of which amounted to adultery. She posted sexually explicit Facebook communications, socialized with men at bars and even met one at a hotel (until interrupted by the man’s wife), and re-established contact with men with whom she had had previous adulterous relationships (her husband claimed).
The MSSC found that the chancellor correctly found her conduct weighed against her on the factor of moral fitness, but the court held that the chancellor erred in finding that the same behavior weighed against her on the factors of parenting skills and stability of home environment.
It’s clear that the high court felt that the chancellor in this particular case was using the denial of custody as punishment in this case, which is a well-established no-no.
What is not so clear is how this case seems to say that the same behavior or misbehavior can not sound in two, three, or more factors. For instance, if a father customarily left the young children alone at night to go out and make drug buys while the mother worked, does that not show that he: has poor parenting skills; is maintaining an unstable home environment; and is not morally fit? Or must the chancellor limit his finding to one of the above? That makes no sense.
I may be reading the case too narrowly, but I hope it does not signal a too-limited scope of inquiry in these cases. Too formulaic an approach does not serve the best interest of the children.