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.

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§ 3 Responses to Custody as Punishment

  • thusbloggedanderson says:

    I had the same problem with the opinion (and was curious what you’d write about it).

    Adultery by itself is one thing; irresponsible conduct in the course of adultery is something else. A different case could present a party committing adultery but not providing an unstable env’t or demonstrating poor parenting.

    Another instance where I have no idea what the Court was thinking. Whenever we get around to amending the state constitution for appointed justices, perhaps 1/3 of them should have to have a record of experience in chancery court.

    • Larry says:

      Thank you especially for that last paragraph.

      As for the opinion, I think it paints with too broad a brush. Many chancellors, I among them, categorize the same behavior in however many categories that they fit, and I think that’s appropriate and not unduly punitive. The example you gave is on point.

      • thusbloggedanderson says:

        “categorize the same behavior in however many categories that they fit”

        Exactly, just as a given set of facts may support relief under half a different causes of action. If that’s not wrong, then what the chancellor did here isn’t necessarily wrong, either. Perhaps a decision crafted with the MSSC op in mind can reach the same result, better explained.

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