Determining Custody in Mississippi
The raison d’être for a child custody trial is to give the chancellor the evidence that he needs to determine which form of custody would be in the child’s best interests. In a moment, we will discuss the Albright Factors, but it is critical to bear in mind throughout this discussion that what we are speaking of is nothing more than an inquiry into what is in the child’s best interests. No matter how you fare in an analysis of the Albright Factors, if the chancellor does not think that it is in the child’s best interest to award custody to you, rest assured that you will not be awarded custody. “It is in the child’s best interest to award custody to me” is the sine qua non of every successful custody case.
The Mississippi Supreme Court instructed chancellors to not make custody awards until they had considered a number of factors that should guide them in determining what form of custody would be in the child’s best interests. These factors were handed down in a case titled Albright v. Albright, so they have ever since been known as the Albright Factors. They are as follows:
Age, health, and sex of the child;
Determination of the parent that had the continuity of care prior to the separation;
Which parent has the best parenting skills and which has the willingness and capacity to provide primary child care;
The employment of the parent and responsibilities of that employment;
Physical and mental health and age of the parents;
Emotional ties of parent and child;
Moral fitness of the parents;
The home, school, and community record of the child;
The preference of the child at the age sufficient to express a preference by law;
Stability of home environment and employment of each parent; and
Other factors relevant to the parent-child relationship.
Scoring the Albright Factors
It can be tempting to think of the Albright Factors as 11 items to be scored individually, as if a custody case was an 11-round boxing match. The thinking might be if I win six rounds (factors) and my opponent wins only five, I’ll win the custody decision.
That’s not how it works. The Supreme Court merely directs the chancellor to consider the factors. When we say consider, we mean that the chancellor has to place on the record what he found the evidence to show about each factor. Usually, chancellors will either say that a factor favors one parent over the other or else that a factor favors neither parent.
For example, if both parents have a close emotional relationship with the child, then Factor 6, Emotional ties of parent and child, will be a tie and won’t favor either parent.
Once the chancellor has put his consideration of the Albright Factors on the record, he’s free to then choose how to award custody in a way that he finds to be in the child’s best interests. To be clear, a chancellor is under no obligation to award custody to a parent who was favored on more factors than the other parent.
To the contrary, chancellors often find that one or two factors are decisive. For example, it is helpful to be a parent who is clearly favored on Factor 2, Determination of the parent that had the continuity of care prior to the separation, simply because chancellors know the importance of stability to a child’s well-being. Win on that factor, and you have gone a good deal further than 1/11th of the way toward winning custody.
Age, Health, and Sex of the Child
As we have noted, custody of young children is no longer automatically awarded to the mother. Instead, a child’s age is merely one item to consider, and it weighs in a mother’s favor only when the child is approximately three years old or younger.
Evidence of a child’s health is usually offered to prove that one parent is more able or willing to take care of a health condition than the other parent or has a more established history of doing so. This can be an important, significant issue at trial if the child has a health condition that requires
In cases where the child’s gender was an issue, mothers were generally favored to raise girls and fathers to raise boys, especially as the children were older.
Overall, the Age, Health, and Sex of the Child factor has not been key to chancellors’ decisions as to how to award custody.
2. Continuity of Care
A parent who can convince the chancellor that he/she has been the parent who primarily cared for the child before the litigation began has a significant advantage in a custody case. But this advantage applies only if it was the parent who provided the care, rather than a grandparent, housekeeper, or nanny.
In those cases where a parent lost custody even though she was favored under the factor, the likely reason was that the chancellor was convinced the quality of care was not good, and/or the parent engaged in immoral/dangerous behavior (e.g., drug use, having several adults stay at the house overnight with the children present, nasty housekeeping).
To prove this factor, the evidence might address:
Who gets the children up in the morning
Who gets the children dressed and ready for the day
Who cooks meals/feeds the children
Who takes the children to and picks them up from school/day care/appointments
Who helps the children with school work
Who is involved with the children’s activities, such as church and sports
Who arranges birthday parties and playdates
Who shops for the children’s clothes and other needs
Who arranges and goes to doctor and dentist appointments
Who plays with the children
Who reads to the children
Who is in charge of the children’s bedtime routine
Who do the children go to when they have a problem/need
Who solves problems (e.g., finding the right doctor or the right school)
Who is in charge of chores, discipline
This is just a partial list of what parents do to care for the children. It’s helpful to brainstorm with your lawyer all of the things that you do, and the witnesses who have personal knowledge of what you do, in order to prove that awarding custody to you would continue the care that the children received prior to the separation.
Although the Albright Factor refers to care provided “prior to the separation,” chancellors can consider the continuity of care provided during the separation as well, all the way to the time of trial.
3. Parenting Skills
This factor pairs with Continuity of Care to provide an overall picture of what has been happening with the children. Continuity of Care refers to who has been performing the tasks of parenting; Parenting Skills refers to how well those tasks have been performed. For example, a parent who provides the children’s breakfast every day might score well under Continuity of Care, but if that breakfast consisted of a power bar grabbed as the children were getting in the car, the parent might not score so well under Parenting Skills.
Or two parents who attend their child’s soccer games might score equally under Continuity of Care, but if one is actually watching and encouraging while the other is talking on the phone in the parking lot, he or she won’t score the same under Parenting Skills.
Here is a comparison of what is normally meant by good vs. poor parenting skills:
Attentive to hygiene and basic safety/child not bathed; wears the same clothes for days in a row; hair not washed; teeth not brushed; child covered in insect bites; unexplained scrapes, cuts, and bruises
Good discipline/child either not disciplined at all or else parent fosters anger and resentment by being far too strict
Parent spends free time with child/parent spends free time with paramour
Parent is attentive to child’s special needs/parent does not care or denies existence of special needs
Parent keeps clean, tidy house/house is a wreck, piles of dirty clothes and dirty dishes, pet waste not cleaned up
Parent provides nutritious meals/parent feeds children junk food and takeout at odd hours, children often hungry
Parent provides structure and routine/children watch TV and play video games, get up when they want, and go to bed when they want
Parent encourages relationships, friendships with other children/child has no friends
Parent gets children to school, helps with homework/children have unexcused tardies and absences, fail classes, are held back due to bad grades, consistent misconduct at school
Parent provides proper supervision/children roam the streets, young children left unattended near a pool or around ATVs
Parent provides safe lifestyle/parent gets drunk, high, has parties where the children are an afterthought, parent takes children to bars or leaves children unattended while parent goes out
Parent encourages the child’s relationship with the other parent/parent (and/or parent’s family members and new spouse) thwarts visitation and undermines the child’s relationship with the other parent
In the examples of poor parenting skills, it’s not always the parent who is engaging in the misbehavior. For example, a mother who remarries someone who gets high around the children and downgrades the father to the children is likely going to score poorly on the Parenting Skills factor, even though the mother herself hasn’t gotten high or talked about the father.
For decades in many counties in Mississippi, it was a death knell for the custody case if a parent kept beer in his/her refrigerator or had engaged in an extramarital affair. Some chancellors had great difficulty awarding custody to a parent who did not take the children to church, or smoked, or refused to administer corporal punishment. The point being that we all have our preferences and dislikes, idiosyncratic to ourselves, and chancellors are no different. Your lawyer will know what conduct your chancellor particularly likes/dislikes.
4. Employment and Willingness/Capacity to Provide Child Care
The inquiry into the parents’ Employment and Willingness and Capacity to Provide Child Care usually refers to (a) the extent to which the parent’s employment or other obligations interferes with their ability to care for the children [capacity]; and (b) the parent’s history of not caring for the child and/or pawning the child off on someone else [willingness].
Working parents will usually show how their work schedules are flexible and how they line up with the child’s schedules. It is helpful at trial for the parent to show not only that he/she is familiar with the child’s schedule, but also what the parent’s plan is for meeting that schedule (e.g., how will you get the child to/from school, day care/after-school care, and extracurricular activities; what is your backup plan for child care if you/your child/your day care provider is sick; what is your plan if you have to work late, or work weekends, or work out of town, etc.). A parent who doesn’t know when his child gets out of school is not going to score well on this factor.
5. Parent’s Health, Age
This is typically not an issue except to the extent that the parent’s health or age is likely to affect his ability to properly care for the child. So if a father has a bad back or the mother has a trick knee, the chancellor might take note of the health condition, but it likely won’t be the factor that ultimately influences the chancellor’s custody decision.
Mental health is something else, though. A parent’s history of attempted suicide, delusions, self-mutilation, significant anxiety, depression, or anger will be scored against them on this factor — particularly if the parent’s mental health has affected his parenting.
A history of substance abuse will be scored against a parent, unless the parent has at the time of trial a significant history of sobriety. We should distinguish between substance use and substance abuse. There is a long continuum from mere occasional drinking, which most chancellors consider to be benign, to rampant alcoholism, which no chancellor will condone. The more a parent drinks; the more the parent gets drunk; the more that drinking creates problems in the parent’s life and affects the children — the more likely that this factor will be scored against the parent.
Drug use is considered to be different than drinking. Active use of anything but marijuana or prescription medicine is a no-go for custody. As of this writing, marijuana is still illegal in Mississippi. Some chancellors view marijuana use as akin to alcohol use — OK if “used responsibly.” Other chancellors view use of marijuana as an absolute bar to custody, akin to cocaine or methamphetamine use.
The two prescription drugs that we see most commonly abused are pain medicine and Adderall. Different chancellors have different attitudes toward prescription drugs. Some take the position that they will not penalize a parent who is, after all, only using medicine as prescribed by their physician, and they (the chancellor) will not substitute their judgment for a doctor’s. Other chancellors are far more skeptical — we’ve heard one who called doctors “drug dealers with prescription pads.”
If there is evidence of improper drug use, chancellors often order the parent to immediately submit to a 10-panel hair follicle test. Chancellors view refusal to take the test as an admission that the parent will test positive and will tailor their custody and visitation awards accordingly.
It’s important to not lose sight of the big picture. The importance of a parent’s drinking or drug use is whether it affects his parenting of the children. If a chancellor is convinced that whatever substance the parent is using has no effect on parenting now and is unlikely to have an effect in the future, this factor won’t be scored against the parent. Our experience is that current, ongoing use of any illegal drug (with the possible exception of marijuana) at the time of trial is likely to bar the using parent from an award of sole custody.
A parent’s age is not usually a big issue in a custody case, except to the extent that the parent might be considered too old to care for children. But that is as much a health issue as it is an age issue. In other words, when there’s a problem, it’s not that someone is too old [age], it’s that they’re too infirm [health].
6. Emotional Ties of Parent and Child
The typical finding on this factor is that the children have a loving relationship with both of their parents. In other words, this is typically a non-factor.
Occasionally, the children have a much closer relationship with one parent than the other, usually because the other parent has been absent from the children’s lives. If that absence was not caused by a parent’s intentional alienation of the children from the other parent, the chancellor might score this factor against the absent parent. Of course, a parent who intentionally alienates the children from the other parent will score poorly on the Parenting Skills factor.
7. Moral Fitness of the Parent
A parent’s drug and alcohol use/abuse can be considered under the Parent’s Health factor, as discussed above, or under the Moral Fitness factor. Either way, the analysis is the same as discussed above.
As to sexual/romantic issues, it’s difficult to articulate a single rule that encompasses the views of every chancellor in Mississippi. As we have noted, some chancellors don’t think drinking or getting drunk has any correlation to a parent’s fitness to raise children; others do. Similarly, some chancellors don’t think that a parent’s extramarital affair has any relationship to whether they should be awarded custody; others do.
We can provide a few general rules of thumb. Chancellors often frown on:
Married parents having the children around boyfriends/girlfriends. It’s not unusual for a chancellor to enjoin this. However, if the child already had a relationship with the boyfriend/girlfriend (e.g., mom is dating the child’s teacher, or dad is dating the mother of the child’s best friend), this is less likely to be objectionable or as objectionable.
A parent having a boyfriend/girlfriend spend the night when the children are around, especially if the children are aware that the boyfriend/girlfriend is staying for the night.
A parent having the children around a parade of boyfriends/girlfriends — even those who do not spend the night.
Romantic relationships that upset the child’s stability. There are a number of cases where the mother lost custody because she moved, or wanted to move, out of state for no other purpose but to maintain her relationship with her boyfriend.
The child being exposed (whether intentionally or negligently) to pornography or the parent having sex.
The child being exposed to age-inappropriate media.
A parent’s profanity can affect his Moral Fitness, as well as engaging in violent or criminal conduct, violating court orders, giving false testimony, and alienating the children from the other parent.
8. Home, School, and Community Record of the Child
This factor encompasses the benefit of maintaining the child’s stability. To the extent that awarding custody to one parent over the other will maintain the child’s stability, the Home, School, and Community Record factor will be affected.
The evidence often falls into predictable scenarios:
Parent attends/participates with children in extracurricular activities
Parent is involved with children’s school (e.g., parties, field trips, PTA)
Parent helps children with homework, take-home projects (e.g., book fair, science fair, spelling bee)
Parent has large, extended family nearby
Parent lives in neighborhood where the children have friends
Parent gets children to school every day, on time
Children perform better academically after being with one parent than they do with the other
Parent does things outside of the house with the children (e.g., hunting, camping, hiking, kayaking, golf, tennis, museum visits)
Parent lives in same community where the children have roots
Parent and children are involved with church
The goal at trial is to draw a distinction between the parents, e.g., the children get A’s after they spent the week with me, but they get C’s after they spent the week with you; I take the children to church, you don’t; my family is from here, yours lives in Idaho; I take the children hunting, you never take them anywhere.
This is one of the factors where witnesses can be tremendously helpful:
Q. How often have you seen Mom and the children at church (or the ball field, or the school, or on the tennis courts)?
A. All the time.
Q. How often have you seen Dad?
A. Never.
9. Preference of the Child
We’re often asked how old a child has to be before he has the right to choose which parent he wants to live with. There is no such age. The child never has that right.
What a child can do is tell the chancellor which parent he wants to have custody. Chancellors are under no obligation to comply with the child’s preference. Some chancellors will instruct the lawyers on the case that, while they are required by law to consider the child’s preference, it carries little weight in their decision.
Of course, in other cases, the child’s preference is nearly determinative. This is particularly likely where the child is nearing the end of her minority. Many chancellors reason that, once a child has reached driving age, the child is going to do what she wants to do and go where she wants to go regardless of what he (the chancellor) orders.
Not all children have the right to make a declaration of parental preference — only children who are at least 12 years old. There are a couple of ways that this preference is published. One is by the child signing a written declaration that he wants to live with the parent designated by the child. It is not unusual for a child to sign two declarations, one in favor of each parent.
The other way for the child to announce his preference is by testimony. This is sometimes given in the courtroom and sometimes in the chancellor’s office. The chancellor can interview the child in his office, but if he does so, the court reporter must be present and record the interview. Different chancellors have different policies as to whether the parents’ attorneys can attend the interview and ask the child questions.
We have never seen a chancellor allow an attorney to humiliate a child in cross-examination. Chancellors are very alert to the possibility that a child’s testimony may have been coached.
There is a great reluctance in general — by chancellors, lawyers, and parents — to have a child testify or otherwise participate in the case. This is not so much a legal concern as it is a predisposition to spare children from the trauma of having to make or declare a preference for one parent over the other. This issue must be considered with great caution by you and your attorney. Having your child testify against your ex may ultimately hurt your case far more than it hurts your ex’s case.
10. Stability of Home Environment and of Parent’s Employment
By the time we reach this factor, there will be a fair amount of duplication with factual scenarios that are incorporated into other factors. In other words, some things can be considered under several different factors. For example, smoking around the children could be considered under the factor Parenting Skills, or Health of the Child, or Health of the Parent, or Home Record of the Child, or this factor.
To prove stability, parents will introduce evidence of:
Length of residence at current home/length of employment at current job
Routines related to home life and work (e.g., for the last 10 years, I’ve been taking the children to school at 7:00, going to work, then picking them up from after-care at 5:00.)
Routines related to chores and activities
Stability regarding who lives at the parent’s house/who the parent lives with
Routines related to church and other community involvement, friends, and extended family (e.g., my parents and my sister and her family all attend the same church as us every Sunday morning, then we have Sunday dinner at my parents’ house.)
11. Other Factors
Anything else that is relevant to the children’s best interests can also be considered. For example, if the children have strong ties to step-siblings, a chancellor may endeavor to maintain this relationship.
There is a strong presumption that children of the same parents should not be separated. One scenario when a chancellor will approve sibling separation is when the children are older, and at least one of the older children has a clear preference for custody that results in not living with his siblings. Chancellors usually attend more closely to visitation schedules in these situations so that even though they don’t live together, the children will spent as much time together as is practical.
Chancellors consider the importance that each parent places on the children’s relationship with the other parent. For example, if Mom encourages the children’s relationship with Dad, this will be scored as a positive; if she is actively trying to disrupt that relationship, this will be scored as a negative. The aid or harm that a parent contributes to the other parent’s relationship with the children can be scored under the Parenting Skills factor, or here, under Other Factors.
In extreme situations, where a parent is determined to destroy the other parent’s relationship with the children, chancellors sometimes conclude that the only way to salvage that relationship is to award custody to the innocent parent.
