Child Custody (Part II)--What factors are used in determining child custody in Mississippi?
How does the judge decide who gets the children?
Jackson's Clarion-Ledger recently reported that Mississippi Judge Leslie Southwick’s nomination to the 5th Circuit Court of Appeals is stalled in the U.S. Senate. Opponents of his nomination point to two cases he ruled upon while a member of the Mississippi Court of Appeals. In one of the cases, he upheld a decision to give custody of a child to the father where the mother was bisexual. While such headlines grab attention, it does little to explain the law in Mississippi.
The overriding question in a child custody dispute is “what is in the best interest and welfare of the child.” In order for the court to make this determination, the Mississippi Supreme Court identified a number of factors to consider in the 1983 case of Albright v. Albright. Not surprisingly, they have become known as the Albright factors:
- Age of the child,
- Sex of the child,
- Health of the child,
- Which parent had more continuity of care of the child prior to separation,
- Which parent has the best parenting skills,
- Which parent has the willingness and capacity to provide primary child care,
- Employment of the parent and the responsibilities of that employment,
- Physical health, mental health and age of the parents,
- Emotional ties of parent and child,
- Moral fitness of parents,
- Home, school and community record of child,
- Child’s preference to select custodial parent if 12 years or older,
- Stability of the home environment and employment of each parent, and
- Other factors relevant to the parent-child relationship.
The Albright factors are weighed by the chancellor to determine what is in the “best interest and welfare of the child.” As the Mississippi Supreme Court said, “religious, personal values and lifestyle should not be the sole basis for custody.” Rather, it is up to the chancellor to make a factual determination after hearing the evidence on the above factors.
In the case Judge Southwick is criticized, the mother and father never married. While the mother was pregnant, she moved out and began living with another woman in an intimate relationship. The father acknowledged he was the father and shared in the rearing of his daughter, splitting child-rearing duties with the mother. The custody dispute arose when the mother decided to move out of county to the Gulf coast. The father sued for custody.
In applying the Albright factors, the court found many in favor of the father, including moral fitness. However, the mother’s bisexuality was only one factor in addition to living with two different same-sex partners (at different times), not having as stable home environment in comparison with the father (who was married and had other children in his home), and just beginning a new business which required more time away from home. While a person’s homosexuality can be a factor in determining custody, it can not be the sole factor. It is a factor just as if one parent is living out of wedlock with a person of the opposite sex. These are issues of moral fitness--one of the Albright factors the chancellor must judge in determining the living arrangement in the “best interest and welfare of the child.”
