For years the law in Mississippi presumed that mothers were the preferred parent to raise children in the event of a divorce. Mothers received benefit of the "tender years doctrine" which created a legal presumption in favor of mothers of young children. The tender years doctrine is now a fond memory, replaced instead by the Albright factors, which includes, as one factor, the "age and sex of the child".
Stautory presumptins regarding custody
Mississippi Code § 93-5-24 (7) states that "[t]here shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody." This statute removes any legal presumption that a mother should have custody unless she is proven to be unfit. Many mothers believe that they should be granted custody, and that they will be granted custody unless they are unfit. This is simply not the case. The change in the Mississippi statutes makes it clear that mothers do not have any presumption that they should be awarded custody over fathers. A father seeking custody no longer needs to prove a mother unfit. He merely needs to prove that, under an Albright analysis, he is the better parent to have custody of the child or children. The gender of the parent is no longer the deciding factor, and the gender of the parent, legally, is irrelevant in a custody determination. The only time the gender of the parent is at all relevant is, potentially, under the Albright factor of age, health, and sex of the child. In reality, there are some judges who place a thumb on the scale in favor of a mother. It is important to hire a lawyer who understands the local judges and can advise you.
Albright factors in a custody determination:
The Mississippi case of Albright v. Albright, 437 So. 2d 1003 (Miss. 1983) established what is now know as the Albright factors. These factors are factors a Chancellor must consider when making a custody determination. The Albright factors are as follows: (1) the child's age, health, and sex; (2) which parent had the continuity of care before the separation; (3) which parent has the best parenting skills; (4) which parent has the willingness and capacity to provide primary child care; (5) each parent's employment and its responsibilities; (6) each parent's physical and mental health and age; (7) the emotional ties between the child and each parent; (8) each parent's moral fitness; (9) the child's home, school and community record; (10) the child's preference, if the child is over twelve years old; (11) the stability of the home environment; and (12) any other relevant equitable factor.
Some of the Albright factors tend to favor mothers over fathers because of the traditional parenting roles of our society. As fathers assume more equal roles in the home, and as more families have two working parents, these factors become more equal to the parents. It is important that parents understand these factors and how they can affect a custody determination. The time to become an active and involved parent is before beginning to seek custody.
Primary Caregiver (Continuity of Care) as a Factor:
For any father seeking custody of a child, it is wise to review the Albright factors and consider if seeking custody is realistic. In an initial custody determination, the factor that most often tends to favor mothers is factor 2, which parent had the continuity of care before the separation. In the past, fathers often passed off the duties of diaper changes, feeding, laundry, cooking, housework and responsibility for cleaning, doctor and dentist visits, daycare drop-offs and pick-ups, bathing, shopping, and other daily care of children to mothers, with fathers enjoying play duties, such as soccer or sports, with the children. This has changed in recent years, with fathers becoming more active in daily care and more equally sharing the drudgery of daily parenting chores. Divorce rarely comes as a surprise. It is important that any parent who recognizes or believes that a divorce is on the horizon should at least equally share in parenting.
The Age, Health, and Sex of the Child as a Custody Factor:
Mississippi long held a rule that a child of "tender years" was best cared for by a mother. A father essentially had to prove a mother unfit to obtain custody of a young child. Some judges still hold the view that a mother is better able to care for a young child, making it more difficult for a father to get custody of a young child. However, the tender years doctrine is no longer a legal presumption, and it continues to weaken over the years. Our courts first addressed this in the Albright case, saying "though 'tender years' doctrine has undergone weakening process in many jurisdictions, including Mississippi, doctrine would not be abandoned, since to do so would be to discard factor worthy of weight in determining best interest of child in particular case;" and further stating that the "polestar consideration in child custody cases is best interest in welfare of the child, and child's age is subordinated to that rule and is but one factor to be considered". Since the Albright decision, Mississippi courts have continued to chip away at the "tender years" presumption to the point that it now carries little, if any, weight.
Our courts have held that "a child is no longer of tender years when that child can be equally cared for by persons other than the mother." Mercier v. Mercier, 717 So.2d 304, 307 (Miss.1998). And, the tender years presumption may be considered less controlling in light of a child's male gender. Copeland v. Copeland, 904 So.2d 1066, 1075(¶ 35) (Miss.2004) (quoting Law, 618 So.2d at 101).
It is important to remember in cases where the age of the child favors the mother that this age is less relevant if the child is male, and that this factor is just one factor of many to be considered by the court. No longer does the tender years doctrine require custody of young children be placed with the mother.
Custody by Kidnapping:
All too often in my practice I see parents, usually mothers, who separate from the other parent and refuse to allow the other parent visitation with a child. I refer to this behavior as "custody by kidnapping." While there are times that this is a good idea, such as when the other parent has a drug addiction or has threatened to take the children and hide them, as a general rule this behavior shows the court that the parent withholding the children is unfit for custody because she will not co-parent with the other parent. When an Albright analysis is finally conducted in court, this "custody by kidnapping" will be weighed heavily against a parent who does this. It is important to remember that not only does your child's other parent deserve the right to see his child, but that your child deserves time with the other parent. Failure to allow your child to see his or her other parent shows the court that you are willing to hurt your child in order to get even with your spouse. This is not something you want to prove to any judge.
Our legislature has established that both parents are equally entitled to custody of their children. In addition to the law cited above, Miss. Code. Ann. § 93-13-1definitively provides that the "father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates. The father and mother shall have equal powers and rights, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of such minor, or any other matter affecting the minor. If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to its custody."
The Chancellor is the Ultimate Guardian of the Child:
Ultimately, the Chancellor appointed to hear a custody case is the ultimate guardian of the child or children. The Chancellor bears the heavy weight of making a decision regarding the best interest of the child, and making a decision that will impact a chid's future. It is your job as a parent to behave in such a way as to show that judge that you will properly care for your child, that you are a fit parent to have custody, and that you will be an effective co-parent with the child's other parent. Your gender is, and should be, irrelevant. Fathers are very capable of being good parents and of having custody of children.