Child Custody - The Albright Factors

February 17, 2017

Instead of trying to create and explain Mississippi case law, I thought it better to just take it straight from Judge Primeaux's blog - The Better Chancery Practice Blog: https://betterchancery.com/2010/07/19/trial-by-checklist-child-custody-factors/

 

The factors that the court must consider in awarding child custody are set out in Albright vs. Albright, 437 So.2d 1003, 1005 (Miss. 1983). 

The factors are:

  1. Age, health and gender of the child.

  2. Parent having continuity of care prior to the separation.

  3. Parent with best parenting skills and willingness and capacity to provide primary child care.

  4. Employment of the parent and responsibilities of that employment.

  5. Physical and mental health and age of the parent.

  6. Emotional ties of parent to child.

  7. Moral fitness of the parent.

  8. Home, school and coomunity record of the child.

  9. Preference of the child at age sufficient to express a preference.

  10. Stability of parent’s home environment and employment of each parent.

  11. Relative financial situation of the parents.

  12. Difference in religion of the parents.

  13. Differences in personal values of the parents.

  14. Differences in lifestyle of the parents.

  15. Other factors relevant to the parent-child relationship.

 

The Albright factors are not to be applied in the manner of a scoresheet or mathematical formula.  Lee v. Lee, 798 So.2d 1284, 1288 (Miss. 2001).  The Chancellor may give special weight to one, two or several factors to determine the outcome.  Divers v. Divers, 856 So.2d 370, 376 (Miss. App. 2003).  The Chancellor has the ultimate discretion to judge the weight and credibility of evidence.  Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss. 1994); Johnson v. Gray, 859 So.2d 1006, 1013-1014 (Miss. 2003).      

 

In an original action for custody, the Albright factors govern the award. 

 

In a modification of custody case, the proponent must prove 3 things, in combination, in order to prevail: 

  1. That there has been a change in circumstances of the custodial parent material to the issue of custody since entry of the last judgment; and    

  2. That the change in circumstances has an adverse effect on the minor child; and, if 1 and 2 are proven

  3. That it is in the best interest of the minor child to change custody.  Determination of the child’s best interest is based on application of the Albright factors to the facts of the case.

 

The standard for modification is like a three-legged stool; if one leg is missing, the stool can not stand.  It is a three-prong or three-part test. 

 

There is one exception to the three-part test for modification.  In the case of Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996), the Mississippi Supreme Court held that it is not necessary to prove adverse effect where the child is in an inherently dangerous or unsuitable situation, as where the custodial parent is using drugs.  Evidence of the Albright factors should still be offered in such cases.  Some argue that Albright proof would not be necessary in a case where the proof shows a clearly dangerous circumstance, but it is this judge’s position that proof of the Albright factors in such a case would make the case airtight.  

 

There have been cases following Riley that have explained and even expanded on the concept, so that now there is arguably a “totality of the circumstances” test to justify modification.  Some attorneys have taken the position that the “totality” is an alternative avenue to the three-pronged test.  This court is not convinced, and takes the position that Riley and its progeny apply in extreme circumstances where the proof shows that the child is showing no adverse effects despite being in an inherently dangerous situation.  In my opinion, the Riley line of cases is not intended to create a new remedy where there is no inherently dangerous situation and the proof is not strong enough to satisfy the three-prong test.

 

The Albright factors apply only to physical custody, and the Chancellor is not required to address them in considering whether to grant joint legal custody only.  Palculict v. Palculict, 22 So.3d 293 (Miss. App. 2009).

 

Judge Primeaux went on to update the Court's position on how the Albright factors should be used in determining custody in a following blog updating some case law, I'm providing a link to that blog, because there's an in depth discussion of the case, and I'm only parsing the pertinent and emboldened parts from the blog.

https://betterchancery.com/2016/06/08/weighing-albright-factors/

 

In the aftermath of [the Albright] decision, some lawyers and judges conceived the notion that Albright was to be applied in scorecard-like fashion. If one party prevailed on more factors, that party was the winner.

 

Fortunately, that view did not prevail. The appellate courts clarified that the judge’s duty is to address and weigh each factor, and, based on that analysis, to make a determination of what is in the best interest of the child.

 

From time to time a case comes floating down from the appellate stratosphere that enlightens us in how the trial courts are to apply Albright. The most recent example is Edwards v. Edwards, handed down by the COA on May 3, 2016. In that case, Johnny Edwards questioned the chancellor’s decision to award Nancy Edwards custody of the parties’ three sons. Since the COA’s opini

 

on is enlightening on the topic, I thought I would post the discussion here. 

 

Judge Fair wrote for the court:

 

¶5. Johnny presents what he styles two issues on appeal, but both essentially argue the same point: Johnny contends that the chancellor erred in considering circumstances outside Johnny’s control on the question of continuity of care.

 

¶6. In Albright, our supreme court held that the best interest of the child must control in all custody decisions, and this principle has been adopted by the Legislature in Mississippi Code Annotated section 93-5-24 (Rev. 2013). In determining the best interest of the child in custody disputes, it is the court’s duty to consider that the relationship of parent and child is for the benefit of the child, not the parent. See Reno v. Reno, 253 Miss. 465, 475, 176 So.2d 58, 62 (1965) (citing J.W. Bunkley Jr. & W.E. Morse, Bunkley and Morse’s Amis on Divorce and Separation in Mississippi § 8.01 (2d ed. 1957)).

 

¶7. To determine where the child’s best interest lies, chancellors must consider the following factors when evaluating the fitness of each parent: (1) age, health, and sex of the children; (2) continuity of care; (3) parenting skills and the willingness and capacity to provide primary child care; (4) employment responsibilities of the parents; (5) physical and mental health and age of the parents; (6) moral fitness of the parents; (7) emotional ties of the parents and children; (8) home, school, and community records of the children; (9) preference of children twelve years of age or older; (10) stability of the home environment and employment of each parent; and (11) other relevant factors in the parent-child relationship. Albright, 437 So. 2d at 1005.

 

¶8. The chancellor is required to address each of the Albright factors that is applicable to the case before him. See Powell v. Ayars, 792 So. 2d 240, 244 (¶10) (Miss. 2001). However, he need not decide that every factor favors one parent over the other. See Weeks v. Weeks, 989 So. 2d 408, 411 (¶12) (Miss. Ct. App. 2008). Nor is Albright a mathematical formula where custody must be awarded to the parent who “wins” the most factors. Lee v. Lee, 798 So. 2d 1284, 1288 (¶15) (Miss. 2001). Instead, the Albright factors exist to ensure the chancellor considers all the relevant facts relating to the child’s best interest. “All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003).

. . .

 

¶11. We find no merit to these contentions. It is true that the original articulation of the Albright factors directed the chancery court to consider the continuity of care prior to separation. See Albright, 437 So. 2d at 1005. But the supreme court has since held that care after separation must be considered as well. Copeland v. Copeland, 904 So. 2d 1066, 1076 (¶39) (Miss. 2004) (citing Jerome v. Stroud, 689 So. 2d 755, 757 (Miss. 1997)).

 

. . .

 

¶13. The Albright analysis is, after all, intended to guide the determination of what is in the best interest of the children, rather than what is fair to the parents. See Reno, 253 Miss. at 475, 176 So. 2d at 62. We find that the chancellor both accurately and fairly weighed the evidence on this factor.

 

. . .

 

¶14.  The chancellor decides how to weigh the Albright factors. See Johnson, 859 So. 2d at 1013-14 (¶36). 

 

I put the most important language in bold for your convenience.

 

Hopefully, Judge Primeaux's, and Judge Fair's, most eloquent explanation of how the Albright factors apply to child custody consideration have helped enlighten you on how a judge makes his determination.

 

 

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