Does a Custody Decision Have to Pass Through Joint Custody?
June 22, 2015 § 2 Comments
We’ve talked here before about the principle that, where the parties have consented to allow the chancellor to adjudicate custody, the chancellor may award either party custody, and may award joint custody. That was decided by the MSSC in Crider v. Crider in 2012, and has been elaborated on in cases applying it since.
Does Crider, then, require the chancellor to consider whether joint custody should be awarded before awarding either party sole custody? That was the issue confronting the COA in the case of White v. White, decided June 16, 2015.
Maegan White and Christopher White consented to an irreconcilable differences divorce, with custody of their children, Garrett and Harley, as a contested issue. The chancellor accepted the recommendation of the GAL and awarded sole custody to Christopher, and her opinion made no mention of the possibility or consideration of joint custody. Meagan appealed, arguing that the chancellor’s failure to consider joint custody was error. She contended that Crider and Clark v. Clark, 126 So.3d 122 (Miss. App. 2013) required the judge to consider whether joint custody was in the best interest of the children.
Judge Roberts addressed her argument for the COA:
¶19. Maegan’s interpretation of both Clark and Crider is faulty. In Clark, this Court reversed and remanded a chancellor’s decision to award sole physical custody to the mother, requiring the court to consider the propriety of joint custody on remand. Both parents had requested sole physical custody of their child and submitted the issue to the court for determination. After hearing testimony of the parties, the chancellor had noted: “[In these] kinds of cases . . . it’s hard . . . to give the child to one or the other because everything here would support that. . . . [H]ow can you choose one over the other, but [this court] has to.” Clark, 126 So. 3d at 124-25 (¶10). In reversing the chancery court’s judgment, this Court noted, “Based on our reading of the transcript, it appears that the chancery court may have concluded . . . that it was required to order custody to one parent regardless of whether joint physical custody was in the best interest of [the child].” Id. at 125 (¶12). Noting our concern that the chancery court had incorrectly concluded it was not authorized to consider joint custody, as neither party had requested it, we reversed and remanded for further consideration.
¶20. Similarly, in Crider, parents in an irreconcilable-differences divorce each requested sole custody of their child. The parents submitted the issue of custody to the court for determination. After considering testimony presented and conducting an Albright analysis, the chancellor found that, even though neither parent requested joint custody, it was in the child’s best interest. Thus, she awarded joint custody to the parents for a two-year period. The mother appealed, noting that Mississippi Code Annotated section 93-5-24(2) (Rev. 2013) [footnote omitted] prohibited a chancellor from awarding joint custody unless specifically requested by the parties. This Court agreed and reversed the chancellor’s judgment, prompting the father to petition for certiorari with the supreme court. After a thorough analysis of the statute and its meaning, the supreme court stated:
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.
Crider, 904 So. 2d at 147 (¶12). The supreme court further noted that the chancellor is in the best position to evaluate the “credibility, sincerity, capabilities and intentions of the parties,” and that it is “incumbent upon a chancellor not to award joint custody” unless in the best interest of the child. Id. at (¶13). The court ultimately held that “when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of ‘joint application’ in [section] 93-5-24(2).” Id. at 148 (¶15). Finally, the court affirmed the chancellor’s judgment and noted that a “chancellor may award joint custody in an [irreconcilable-differences] divorce, when the parties request the court to determine custody.” Id. at 148-49 (¶17) (emphasis added).
¶21. Maegan incorrectly interprets both Clark and Crider to require a chancellor to consider joint custody when faced with an irreconcilable-differences divorce. The chancellor “is bound to consider the child’s best interest above all else.” Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996). In both Clark and Crider, the chancellors found joint custody to be in the child’s best interest. In Clark, the chancellor incorrectly awarded sole custody to one parent despite the finding that joint custody was the child’s best interest; in Crider, the chancellor awarded joint custody because that was in the child’s best interest, and the supreme court affirmed that award. Crider and its progeny allow—not require—a chancellor to award joint custody when in the best interest of the child. In the present case, the chancellor found that it was in Garrett and Harley’s best interest to give custody to [Christopher]. Though the chancellor’s order makes no mention of joint custody, he is not required to do so. The chancellor’s primary duty is to consider the best interests of the children and make a determination of custody based on that concern. There is no evidence that the chancellor disregarded the children’s best interests when determining custody. The chancellor’s custody award to [Christopher] was not error.
Not much to add to that, except to cite you to this post on Easley v. Easley, and this one with some random thoughts on joint custody, which might make your collection of authorities on this point complete.
The Better Chancery Practice Blog 
I take the point, but if the child’s best interest governs, then it would seen the court should at least consider whether joint custody might be in that best interest. I would not be surprised if that became a holding in 5 years.
My guess is that the chancellor did consider joint custody, but addressed only sole custody in the decision.