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.
April 15, 2014 § Leave a comment
The COA’s decision in Hall v. Hall, decided March 25, 2014, is not one of those milestone cases that stands out from others.
It does, however, include a nifty selection of legal authority that you can use as a refresher and file away for future use. It’s nothing that you don’t already know or aren’t acquainted with, but it is set out in handy, bite-sized portions for ease in serving up later.
From Judge Fair’s opinion:
¶9. The burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home. Riley v. Doerner, 677 So. 2d 740, 743 (Miss. 1996). To successfully move to modify custody of a child, a noncustodial parent must prove (1) that a substantial change in circumstances has transpired since issuance of the custody decree, (2) that this change adversely affects the child’s welfare, and (3) that the child’s best interests mandate a change of custody. McDonald [v. McDonald], 39 So.3d at 880 (¶37). “A modification of custody is warranted in the event that the moving parent successfully shows that an application of the Albright factors reveals that there had been a material change in those circumstances which has an adverse effect on the child and modification of custody would be in the child’s best interest.” Johnson v. Gray, 859 So. 2d 1006, 1013 (¶33) (Miss. 2003) (citing Sanford v. Arinder, 800 So. 2d 1267, 1272 (Miss. Ct. App. 2001)).
¶10. “The chancellor must consider the totality of the circumstances to determine ‘whether there was a material change in circumstances.’” Cantin v. Cantin, 78 So. 3d 943, 948 (¶15) (Miss. Ct. App. 2012) (citation and quotation omitted). If, after examining the totality of the circumstances, a material change in circumstances is found to have occurred, the chancellor “must separately and affirmatively determine that this change is one which adversely affects the children.” Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997) (citation omitted).
¶15. … In his judgment, the chancellor stated that there are no facts in the record to support that Dana’s cohabitation with a romantic partner had an adverse effect on the children. The chancellor also stated that the existence of an extramarital relationship, by itself, fails to provide a sufficient basis for a finding of an adverse material change. See Sullivan v. Stringer, 736 So. 2d 514, 517 (¶16) (Miss. Ct. App. 1999) (finding that cohabitation alone fails to give rise to a material change in circumstances). However, the existence of the relationship coupled with another adverse impact on the child provides a sufficient basis to warrant a custody modification. Id. at 518 (¶20). The chancellor did not err in considering this issue in his material-change analysis.
Comment: Modification of child custody requires what I refer to as a three-legged stool of proof. You must first prove that there has been a material change in the circumstances of the child and/or custodial parent. If you have proven the material change, then you must prove that the change has had some adverse effect on the child OR, per Riley, that the circumstances are so inherently dangerous or inimical to the child’s welfare that the court can assume an adverse effect. And, third, you must prove that it is in the child’s best interest to change custody. As with any three-legged stool, if any leg fails, the whole thing falls.
¶17. “If the court finds an adverse material change, then the next step is to apply the Albright factors to determine whether modification is in the child’s best interest.” White v. White, 26 So. 3d 342, 351 (¶28) (Miss. 2010) (citing Sturgis v. Sturgis, 792 So. 2d 1020, 1025 (¶18) (Miss. Ct. App. 2001)). The Albright factors are as follows: (1) age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which parent has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and child; (7) the 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) the stability of the home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Albright, 437 So. 2d at 1005.
Comment: Many attorneys base their trial tactics on the misconception that if they can prevail on more of the factors than the other side, their client wins. Not so. Here is what Judge Fair said about that approach:
- ¶19. An Albright analysis is not a mathematical equation. Lee v. Lee, 798 So. 2d 1284, 1288 (¶15) (Miss. 2001). Further, the “factors are not meant to be weighed equally in every case.” Id. (citing Divers v. Divers, 856 So. 2d 370, 376 (¶27) (Miss. Ct. App. 2003)). Our supreme court has held that “[a]ll the [ Albright] factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson, 859 So. 2d at 1013-14 (¶36).
Comment: As I have said here before, the judge can give much greater weight to one or more factors, depending on the facts in the case. For example, I had an original custody case where the mother prevailed on nearly every Albright factor save one: she had a history of mental illness and was actively delusional, would not take medication, and saw her children as part of her delusion. Dad got custody. That “mental health of the parent” factor outweighed all the others combined.
Even when a decision appears to be the “same old same old,” it just might be what you need to reacquaint yourself with the law on a given point.
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.
October 8, 2012 § Leave a comment
I’ve talked here before about how lawyers on appeal often argue that the chancellor’s decision should be reversed on the basis that he or she used custody as a sanction for marital misconduct. And there is case law that supports that argument. Brekeen v. Brekeen, 880 So.2d 280, 287 (Miss. 2004); Smullins v. Smullins, 77 So.3d 119, 129 (Miss.App. 2011); Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).
The thing is that custody may not be used to punish the misconduct, nor may the misconduct be the sole basis, but misconduct may properly be considered as one among the other several applicable Albright factors, and it may be considered as proof of several other factors.
In the case of Collins v. Collins, decided by the COA on October 2, 2012, the chancellor had proof of Kim Collins’ adulterous relationship with a man (Haley) other than her husband, Jarrad. The evidence was that she took trips to rendezvous with the man, leaving her son Conner with someone else, presumably her husband. She spent dozens of hours talking on the phone with her paramour and texting him. Judge Russell’s opinion says:
¶18. It appears from the record that Kim’s adultery was important to show how her behavior with the minor child changed during that period. There was testimony that since her involvement with Haley, Kim appeared to be gone more often and was not around Connor as much as Jarrad. Jarrad’s mother testified that Kim had not been a good mother the last two years because Kim put her relationship with another man before her son.
* * *
¶20. As in Smullins, the chancellor expressed concern over Kim’s involvement with another man because of its impact on her relationship with Connor. Thus, the chancellor’s findings “were not a sanction against an adulterous parent . . . .” Smullins, 77 So. 3d. at 129 (¶46).
When you present your child custody case, don’t put all your eggs in the adultery or other misconduct basket without adding how you want the judge to fit that testimony into the other Albright factors. For instance, when your client testifies about the misconduct, ask why that behavior concerns him or her vis a vis custody, and prepare the witness to address continuity of care, stability, parenting skills, demonstrated willingness and capacity to provide care for the child, physical and mental health, emotional ties, and any other conceivable relevant factors. Only after you have done that should you harp on the moral fitness factor.
in Collins, the chancellor had an ample basis to find that Kim had undercut her own case for custody by choosing to put her relationship with the other man ahead of her attention for her son. When the chancellor put it in those terms, the COA had no way to go but to affirm.
July 23, 2012 § Leave a comment
Is it necessary for the chancellor to analyze the proof in light of the Albright factors in a case where the grandparents are seeking to take custody from the natural father, the sole surviving parent, based on a finding of unfitness?
That Albright analysis question was an issue before the COA in the case of Lucas v. Hendrix, decided by the COA July 17, 2012. At trial, the chancellor had found that the father, Adam Lucas, was unfit, and awarded custody of the two minors, Tyler and Cody, to the maternal grandarents, Jeannie and John Hendrix, without any Albright analysis. Here is how Judge Roberts’ opinion addressed it, beginning at ¶16:
In his first issue, Lucas asserts that the chancellor used an incorrect legal standard by failing to apply an Albright analysis before granting the Hendrixes custody of Tyler and Cody …
¶17. In Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983), the Mississippi Supreme Court outlined multiple factors to be considered when determining which natural parent should receive custody of the child, with the polestar consideration being the best interest of the child. The supreme court and this Court have repeatedly stated that a different analysis must be applied when adjudicating custody between a natural parent and a third party, such as in this case. In custody cases involving a natural parent and a third party, a presumption exists that the natural parent is the best custodian for his child. McKee v. Flynt, 630 So. 2d 44, 47 (Miss. 1993). However, this natural-parent presumption may be overcome by clear and convincing evidence “that the parent has (1) abandoned the child[;] or (2) the conduct of the parent is so immoral as to be detrimental to the child[;] or (3) the parent is unfit mentally or otherwise to have the custody of his or her child.” Id. (quoting White v. Thompson, 569 So. 2d 1181, 1183-84 (Miss. 1990)); see also McCraw v. Buchanan, 10 So.3d 979, 984 (¶15) (Miss. Ct. App. 2009). Additionally, pursuant to Mississippi Code Annotated section 93-5-24(1)(e) (Rev. 2004):
Upon a finding by the [chancery] court that both parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child[,] the [chancery] court may award physical and legal custody to:
(i) The person in whose home the child has been living in a wholesome and stable environment; or
(ii) . . . any other person deemed by the [chancery] court to be suitable and able to provide adequate and proper care and guidance for the child.
In the current case, the chancellor relied on this statute because Moore, the boys’ natural mother, was deceased; therefore, Lucas was the sole remaining natural parent. If a chancellor finds the remaining natural parent to be unfit, as she did in this case, then the statute gives the chancellor the authority to grant custody to a third party.
¶18. We do not read Mississippi Code Annotated section 93-5-24 or the majority of prior case law to require an Albright analysis if the chancellor finds the sole, natural parent has abandoned or deserted the child or is unfit to raise the child …
The decision went on to distinguish this case from In re Dissolution of the Marriage of Leverock and Hamby, 23 So.3d 424 (Miss. 2009). The primary point of departure between the two cases was that the chancellor made a finding of unfitness in the Lucas case, but there was no such finding in Leverock.
The important feature of the Lucas case is that no Albright analysis is necessary in a contest netween a natural parent and third parties once the chancellor has found unfitness. That finding alone is sufficient to trigger the change and opens the door to either class of custodians set out in the statute, without a best-interest Albright analysis.
Adam argued also that the chancellor erred by not expressly finding by clear and convincing evidence that he was unfit. Without saying it in so many words, however, the COA held the chancellor’s findings to be so detailed and supported by proof that they were tantamount to a finding by clear and convincing evidence, and so brushed aside this contention.
So does this mean you should not bother with proof of the Albright factors when you try a case of this type? I guess, strictly speaking, the answer would be in the affirmative. But why take the chance? Even if the chancellor does not use that evidence, you have it in the record if you need it.
July 17, 2012 § 2 Comments
In September, 2010, a special chancellor granted Sharon and Allen Flowers an irreconcilable differences divorce and adjudicated custody, awarding it to Allen with Sharon having visitation. Sharon was displeased with the result and appealed
The COA case of Flowers v. Flowers, decided June 19, 2012, includes several points that I found interesting:
- Sharon claimed that the chancellor improperly used denial of custody to sanction her for a post-separation relationship. Is it just me, or is this claim automatically raised any and every time that the court finds against a party on the “moral fitness” Albright factor? Chancellors are required to make a finding on every Albright factor for which there is evidence in the record. Here there was evidence that Sharon had initially lied to the GAL about the relationship, and then admitted it. Had the chancellor not taken that into consideration, it would have been error. There is nothing in Judge Ishee’s opinion that would lead one to conclude that the chancellor based his decision solely or even mostly on this factor. Adultery may be the factor among others that tips the scales, but it may never be the factor standing alone that determines custody.
- The chancellor found that “Both children are male children and therefore this factor favors the father.” The COA found no error on this point, and cited Reed v. Fair, 56 So.3d 577, 582 (Miss. App. 2010). This is a curious conclusion, in my humble opinion. What exactly is the basis for such a finding? What is the socio-scientific basis, if any, upon which to base such a conclusion? Had the chancellor found that the male gender of the children favored the mother, would that have been error? Now, there may have been evidence in the record of differences in disciplinary problems or behavior under the suprevision of males as opposed to females, or something of that sort, but that is not reflected in the appellate opinion. In Reed v. Fair, the court upheld the chancellor’s finding that the twelve-year-old child needed the influence of a man in his life since there were no other male family members available and there had been a need for counselling. Fair enough (no pun intended). But to make the naked assertion that a child of one gender should be in the custody of the parent of the same gender seems simple-minded to me (no offense to the learned chancellor in the Flowers case). There are studies that establish that younger males are actually better off under the influence of the mother. And there is MCA 93-5-24(7), which says that “There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.” Isn’t the same-gender line of thinking based precisely on such a presumption?
- The COA opinion says that “[Sharon] further argues that the [sex-and-health] factors should have been grouped together as one factor, instead of treating them as two separate factors.” She goes on to argue that the result would have been that she would have prevailed in an additional category, adding one more tally to her column, and perhaps giving her the higher score that would have given her the victory. The flaw in her argument, though is that she could prevail in several more categories than Allen and still lose custody. 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.
Only last month, in the case of Easley v. Easley, the COA again addressed an appellant’s argument that he should have been awarded sole custody rather than joint custody because he had a slight edge in the Albright scorecard:
[The father’s] argument appears to be based on the mistaken assumption that joint custody cannot be awarded if more of the Albright factors favor him, however slightly. We see no reason why some marginal advantage of one parent should preclude the chancellor from awarding joint custody, so long as both parents are fit and joint custody is found to be in the children’s best interest. See Phillips v. Phillips, 45 So. 3d 684, 694 (¶30) (Miss. Ct. App. 2010). “The Albright factors are a guide. They are not the equivalent of a mathematical formula.” Lawrence v. Lawrence, 956 So. 2d 251, 258 (¶23) (Miss. Ct. App. 2006) (citation and quotation omitted).
The case of Jackson v. Jackson, 82 So.3d 644, 646 (Miss.App. 2011), is also on point.
In one case I tried, I found for the mother in most of the Albright categories. When it came to the mental health of the parties, though, I found that her history of and active mental illness, and her refusal to deal therapeutically with it, overshadowed all of the other factors combined, and I awarded custody to the father. Had I treated the Albright factors as a winner-take-all scoreboard, I would have awarded the two little girls (gender favored the mom?) to an actively delusional, psychotic woman who left a psychiatric hospital against medical advice and who would not take her medication. That case was not appealed, but I am confident that it would have been affirmed.
Perhaps some of the confusion stems from appellate court decisions that direct chancellors to make a finding as to which party prevailed on each factor, giving the impression that the prevailing party “wins on points.” That’s not the law.
I suggest that, when you try a custody case, you should focus your time, attention and effort on developing quality evidence rather than a quantity of evidence designed to put points on the board. The former strategy will work for the best interest of the children. The latter may wind up winning the scoreboard and losing the game.
November 22, 2011 § 2 Comments
Every few months I try to remind lawyers about the importance of putting on proof of the factors spelled out by the appellate courts that are required to make your case. This may also come in handy for any newcomers who haven’t stumbled on prior posts on the subject.
I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.
Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.
Here is a list of links to the checklists I’ve posted:
To make it easier to find checklists, I’ve added a category that you can search by using the category search tool on the right side of the page.
Next time the court denies your claim for attorney’s fees or for your client to claim the tax exemption for the children, ask yourself whether you put on the necessary proof. Not only is it crucial to your case at trial to prove all of the applicable factors, but you can’t expect to have a prayer on appeal without the requisite proof in the record.
November 2, 2011 § 3 Comments
It’s an axiom of Mississippi law that the natural parents, if fit, are presumed to have the first right against everyone else in the world to have custody of their children. K.D.F. v. J.L.H., 933 So.2d 971, 980 (Miss. 2006). This means that, if the natural parent is challenged for custody by a non-parent, there must be a showing of unfitness that will trigger an Albright analysis to determine the best interest of the children.
That presumption, however, can be lost. Here are the 4 ways:
- Voluntary Court Order. If the parent voluntarily relinquishes custody and there is a court order to that effect, the presumption is lost, and the party to whom custody is relinquished gets custody until there can be shown to be a material change in that person’s household that is having an adverse effect on the children, and it is in the best interest of the children to change custody. Grant v. Martin, 757 So.2d 264 (Miss. 2000). In Grant, the MSSC held that the natural mother who had agreed by court order giving her parents custody had given up the natural parent presumption, with the effect that she had to prove material change-adverse effect-best interest to regain custody. Under Grant, it is immaterial whether the natural parent is unfit or has abandoned or deserted the children; the operative fact is the agreement memorialized by a court order. Note that the court has declined to extend Grant to include temporary orders. Vaughn v. Davis, 36 So.3d 1261, 1266 (Miss. 2010).
- Abandonment. A parent who is shown by “clear proof” to have abandoned the children has lost the presumption. McKee v. Flynt, 630 So.2d 44, 47 (Miss. 1993). Abandonment is ” … any conduct on the part of the parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child …” In re Leverock and Hamby, 23 So.3d 424, 429 (Miss. 2009), citing Ainsworth v. Natural Father, 414 So.2d 417, 419-20 (Miss. 1982), which defined abandonment as including both active relinquishment and avoidance of duty.
- Desertion. Inaction or avoidance of duty toward the children. Requires clear and convincing evidence. In Leverock, at 33, the Court found that a father had deserted his son by completely avoiding both his moral and legal duties and obligations as a father for more than two years, during which time he had showed a complete disregard for the welfare of his son. The court said that the father had chosen “ ‘to take an extended holiday from the responsibilities of parenthood’ and we find that he should not now be able to claim the benefit of his status as a natural parent….” Once the finding of desertion is made based on clear and convincing evidence, the court must embark on an Albright analysis.
- Adjudication of Unfitness. When the court awards custody to a third party based on the natural parent’s unfitness, the presumption no longer applies, and the material change-adverse effect-best interest standard applies. Adams v. Johnson, 33 So.3d 551, 555 (Miss. App. 2010).
May 9, 2011 § 4 Comments
It is an ancient principle embedded in Mississippi family law that if the mother of a child of tender years – especially a female – is fit, then she should have custody. Kyzar v. Kyzar, 248 Miss. 59, 157 So.2d 770 (1963); Brown v. Brown, 237 Miss. 53, 112 So.2d 556 (1959); Boswell v. Pope, 213 Miss. 31, 56 So.2d 1 (1952); Johns v. Johns, 57 Miss. 530 (1879). The principle came to be known as the “tender years doctrine,” and over time it grew into a rule, eventually extended into to the generally-accepted wisdom that the mother was favored in child custody disputes.
As late as the 1980’s, the tender years doctrine exerted its hegemony. One example is the remarkable case of Buntyn v. Smallwood, 412 So.2d 236 (Miss. 1982), in which the supreme court reversed a chancellor’s denial of a mother’s modification of custody where the mother had remarried and stabilized her situation and the father, who had custody from the divorce, worked offshore. From the opinion, it appears that the father’s work situation had not changed at the time of the modification, but the mother’s situation had improved. A Kramer vs Kramer-type situation, for sure. The case illustrates just how strong a magnetic force the tender years doctrine exerted on our jurisprudence.
An early chink in the doctrine’s armor appeared not long after Smallwood in the case of Cheek v. Ricker, 431 So.2d 1139, 1145 (Miss. 1983), where the court stated that ” … it hardly seems rational that the age of a child should per se lead to any particular result.”
Then came Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983), which enunciated the rule that the polestar consideration is the best interest of the child, and that a factor such as the age of the child was to be weighed along with other specified factors against what would be in the child’s best interest. Even Albright, however, expressly rejected the idea that the tender years doctrine should be discarded.
In the years since, the doctrine has weakened further. In Mercier v. Mercier, 717 So.2d 304, 307 (Miss. 1998), the court held that a child is no longer considered to be of tender years when it can be cared for by others. In Copeland v. Copeland, 904 So.2d 1066, 1075 (Miss. 2004), the supreme court upheld the decision to award custody of a two-year-old boy to his father. In Lee v. Lee, 798 So.2d 1284, 1289 (Miss. 2001), the court stated that a child four years of age was no longer of tender years. In Torrence v. Moore, 455 So.2d 778, 780 (Miss. 1984), the court found that a seven-year-old child was “long past” tender years.
In 2000, MCA § 93-5-24 was amended to add this language as subsection (7): “There shall be no presumption that it is in the best interest of a child for the mother to be awarded either legal or physical custody.”
Most recently, on May 3, 2011, the doctrine continued its fade in Kimbrough v. Kimbrough, at ¶ 37-38, where the COA upheld the chancellor’s finding that the Albright factor of the “Age, health and sex of the child” favored neither party. The judge found that the parties’ five-year-old daughter was not of tender years and awarded custody of the child to the father. The mother argued that the child was of tender years, and that she should have been favored. The COA rejected her argument and upheld the chancellor’s award.
If the tender years doctrine is not dead, it is at least moribund. If you are still advising your clients that the mother is favored in custody actions, you need to do a little reading and re-examine your position. Custody will be awarded to the fit parent who prevails on the Albright factors.
October 8, 2010 § 2 Comments
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Check out this Checklist for Closing an Estate.
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This Habeas Corpus Step by Step should help.
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The Albright factors are what you’re looking for.
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How to Sell Real Property in an Estate may be just what you need.
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<Sigh> Here’s a post on what to do When Rule 41(d) Comes Knocking at Your Door.
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