by Jonathan Barlow
As another week progresses, we once again find ourselves examining custody battles in the great state of Mississippi. While these cases can be difficult and emotional, they don’t have to be.
One of the biggest concerns that I hear on a day-to-day basis when dealing with custody is: “How do I know the Judge will do what is right?”
People find themselves concerned that the Judge will not like them, that the guardian ad litem will go against them, and any other negative thought that can cross our creative minds in the midst of immense stress. However, take solace in knowing that custody determinations in this state are not randomly awarded, and while some people will tell you, “That Judge just had it out for me,” it usually (hey, things happen) isn’t true. In fact, in every state in the United States of America custody is based upon the “best interest of the child.” Each state gets that rule from their own case, and in Mississippi that pivotal determination was made in Albright v. Albright.
In this article, I will lay out the various factors that either the Court, or the guardian ad litem, or both, will consider in awarding custody to attempt to comfort someone going through these harrowing thoughts. I will also explain how the factors are determined for one parent or the other, or deemed a “push” for the card players amongst us. As always, none of this information is legally binding.
While some people may want to know the background of Albright, it is really not important. What you need to know is that Albright was decided in 1983, and it postulated the thirteen factors that a Court considers when awarding custody. Most of these are plain language and to the point, but I will do my best to hash out those factors that could be confusing. I will split the factors into two sections, only because there are so many.
The first seven factors are as follows: (1) the “polestar consideration is the best interest and welfare of the child” which is just a fancy way of saying whatever is best for the kid is what we will consider; (2) the age of the child, because the Court’s often allude to the “Tender Years Doctrine” which suggests that children under six should be in the presence and paramount custody of their mother; we will discuss this doctrine another time since I am extremely passionate about it, despite many Courts statements that it “no longer applies;” (3) the health (both physical and mental) and age and sex of the child; (4) continuity of care, which examines which parent provided the necessary care for child-rearing prior to separation, or which parent took them to school, doctor’s visits, daycare, etc.; (5) “best parenting skills” and “willingness and capacity to provide the primary child care,” which just exhibits which parent wants to care for the child, and how they plan to carry out that care; (6) employment and employment responsibilities of each parent, which won’t hurt you if you don’t have a job, the Court just wants to see what you’re making, if anything, and what you’re working, so they know how the child will be cared for and how you can afford to provide that care; (7) physical and mental health of each parent, one of the pretty self-explanatory factors. We need to ensure that the parents can care for themselves so they can care for the child or children.
The final factors that are considered are; (8) the emotional ties of the parent and the child, which examines whether or not the child identifies the parent as such, and whether the parent has a bond with the child; (9) the moral fitness of the parents, which looks for drug use, alcohol abuse, and if married, causes for the dissolution of the marriage, if any, solely so the Court can determine who the parent is as a person; (10) the home, school, and community record of the child (generally, if under the ages of five or six ,this is a non-issue) where applicable, to examine if the child has exhibited worrisome behavior that requires more parental guidance; (11) the preference of the child of sufficient age (12) to express an opinion; I stop here to tell you all that no matter what your child wants, if it is not in their best interest, IT IS NOT HAPPENING; just because you enforce rules and the other parent allows the child to eat ice cream at all hours of the night so he/she wants to live with them doesn’t mean the Court will allow it; it’s only one factor; and (12) the stability of the home environment and employment (how long have you lived where you live, do you rent or own, do you plan to move, etc.) and finally; (13) any other “factor relevant to the parent/child relationship.”
Whew; say all this ten times as fast as you can. While you may be worried that 1-3 go for you but 10-13 go against you, don’t. The fact is that no one factor is greater than the other, and “winning” doesn’t necessarily come down to having a tally of 10-3. In fact, each factor is weighed on a bit of a sliding scale.
For example, factor 10 (the home, school, and community record of the child) may not be applicable to your case because your child is an infant with no such record to show. The guardian ad litem or Court would call this factor a “push” factor, in that neither side is awarded that “point.” I do note here, it isn’t really a “point” system but that’s the best I can give you.
On factor 11, as referenced, the child may prefer to live with mom or dad but if that’s mom or dad’s only factor, then the child won’t be going there by the order. A factor could be greatly in one party’s favor, slightly in their favor, or even (ala the “push.”)
After considering ALL of these factors, the Court will make their determination and custody will be awarded. See, determinations aren’t that random. I hope the breakdown of these factors and a quick discussion of the “sliding scale” gives you a little closure and a way to understand why we do what we do.
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