The Albright Score Board
November 5, 2019 § 2 Comments
Too many lawyers consider the judges’ findings on Albright factors to be like some sort of score board. I hear it in R59 motions: “But, Judge, we prevailed in one more factor, so my client should have been awarded custody.” And we see it in appeals, where the losing side argues something similar.
In a recent decision, Judge Jack Wilson of the COA spelled out how the trial and appellate courts are supposed to deal with Albright. Since it’s an excellent, succinct exposition on the law, I thought it would be helpful to include it for your use. This is from the case of Morgan v. Whitehead, handed down October 15, 2019:
¶18. “A chancellor’s custody decision will be reversed only if it was manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard.” Smith v. Smith, 97 So. 3d 43, 46 (¶7) (Miss. 2012). “[T]his Court cannot reweigh the evidence and must defer to the chancellor’s findings of the facts, so long as they are supported by substantial evidence.” Hall v. Hall, 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014). The relevant question is whether the chancellor’s decision is supported by the evidence, not whether we agree with it. Hammers v. Hammers, 890 So. 2d 944, 950 (¶14) (Miss. Ct. App. 2004).
¶19. In child custody cases, the “polestar consideration . . . is the best interest and welfare of the child.” Albright, 437 So. 2d at 1005. In determining where the child’s best interest lies, the chancellor should consider the following factors: (1) age, health, and sex of the child; (2) which parent had “continuity of care prior to the separation”; (3) parenting skills; (4) willingness and capacity to provide primary child care; (5) both parents’ employment responsibilities; (6) physical and mental health and age of the parents; (7) emotional ties between parent and child; (8) moral fitness; (9) “the home, school and community records of the child”; (10) the child’s preference, if the child is at least twelve years old; (11) the stability of the home environment and employment of each parent; and (12) any “other factors relevant to the parent-child relationship” or the child’s best interest. Id.
¶20. Albright does not require the chancellor to award custody to the parent who “wins” the most factors. Blakely v. Blakely, 88 So. 3d 798, 803 (¶17) (Miss. Ct. App. 2012). “The point of Albright is to identify the custody arrangement that would be in the child’s best interest—not to determine what is in either parent’s best interest or which parent is the better person.” Vassar v. Vassar, 228 So. 3d 367, 375 (¶26) (Miss. Ct. App. 2017). In addition, the chancellor is not required to find that each factor favors one parent or the other. Harden v. Scarborough, 240 So. 3d 1246, 1251 (¶11) (Miss. Ct. App. 2018). The chancellor is only required to consider each factor that is applicable to the case and determine what custody arrangement would be in the child’s best interest. Id. “We review the chancellor’s application of the factors for manifest error, giving deference to the weight that he assigned each factor.” Id.
The Better Chancery Practice Blog 
Your comments are quite useful to an old fellow like me who has to occasionally take on a domestic case. Chancellors have always essentially considered the Albright factors, even before they were formally compiled. I recall a case in which the judge left the child with a crazy, amoral, reckless mother for the obvious reason that he did not want to remove her from her community which included her other relatives and schoolmates, etc. My client, a really good man, understood even tho he had wanted a different outcome. As we stood outside the courthouse in the dusk after the judge declined to give him custody but treated him pretty easy on the support issue, he turned to me and said: “Well, you told me the judge would be fair.” And the child has turned out well and sees her father often.
Chancellors back then were regarded as wise and intelligent, and with good cause, for they were. They were able to perceive what was beneath the surface, and the Supreme Court respected their judgment and deferred to them in cases such as you described. Chancellors were rarely reversed when their judgment was brought to bear in family law cases. Chancellors have not really changed, but the law has. Today, there is much more law, and equity has been banished to the shadows. Too many technicalities and not enough humanity. It’s no wonder people have lost faith in the courts. We in the law have done that to ourselves.