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.