In representing clients in family and domestic cases involving minor children, we are often asked the following question: how will a court determine which parent will have custody of our children?
The ultimate answer to this question is often very complicated, and requires the consideration of two separate but related concepts of custody: legal custody and physical custody. The term “legal custody” essentially refers to the ability of a custodian to make fundamental decisions for a child, such as decisions related to healthcare and education choices, while the term “physical custody” refers to the custodian with which the child will reside at a given point in time. Often the primary concern of a parent in custody issues refers to the latter, or “physical custody.”
In determining physical custody, the Courts in Mississippi begin with the presumption that both parents are equally entitled to custody. Mississippi Courts, however, like many states, generally favor providing children with a primary home with one parent or the other, in order that the children will be afforded a sense of stability and “home.” The parent that has custody of the children more often than the other is referred to as the “primary custodial parent.”
In Mississippi, the seminal case in determining who will be the “primary custodial parent” is the 1983 Mississippi Supreme Court case of Albright v. Albright, 437 So. 2d 1003 (Miss. 1983). In determining which parent should have primary physical custody in Mississippi, the analysis always begins with the same initial focus: what is in the best interests of the child. As the Court in Albright stated the issue, “the polestar consideration in child custody cases is the best interest and welfare of the child.”
Determining precisely what is in a child’s “best interests,” however, involves a number of tests, presumptions, and considerations that have come to be referred to as the “Albright Factors.” In Albright, the Mississippi Supreme Court enumerated the following factors to be considered in determining custody:
1. the age, health, and sex of the child;
2. a determination of the parent who had the continuity of care prior to separation;
3. which parent has the best parenting skills;
4. which parent has the willingness and capacity to provide primary childcare, including the employment of the parent and the responsibilities of that employment;
5. the physical and mental health and age of the parents;
6. the emotion 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
11. other factors relevant to the parent-child relationship.
According to the Mississippi Supreme Court, a trial court is required to make findings as to each of these factors. In fact, trial courts have had custody decisions reversed and remanded where judges failed to make specific findings of fact as to the Albright Factors. See Parra v. Parra, No. 2010-CA-00339-COA, a Warren County divorce case where the trial court initially awarded custody to the father, and that decision was remanded on the grounds that the trial court did not identify and analyze each of the Albright Factors in its decision. The Mississippi Supreme Court has said that, in requiring an analysis of these factors, the Court accomplishes two great purposes. First, the decision of the Court is not made in the dark. The factors allow litigants to know exactly what proof they need, and after hearing the Court’s findings as to each factor can know how the Court reached its decision. Second, the factual findings as to each of the factors allows for accurate appellate review of the lower court’s custody decision.
Basically, this concept can be viewed as a scale, in which the Court will “weigh” the factors favoring one parent or the other, in an effort to determine which shall provide for the “best interests” of the child. However, Courts have cautioned that 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). Rather, 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). Also, 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).
Based on these general concepts, it becomes clear that a determination of child custody issues must be made on a case by case basis: each and every situation is unique and requires independent and careful review and consideration, and careful and deliberate planning in a contested custody case. For a confidential, free initial consultation regarding your specific custody issues and concerns, please contact our firm to make an appointment.
Please check back in for subsequent discussions of related custody issues, including child support, visitation, child preference, modification of custody, visitation, and/or support, and contempt for violating an order regarding custody, visitation, and/or support.