Archive for March, 2019

THE ALBRIGHT FACTORS REVISITED

Thursday, March 21st, 2019

Each and every Chancery court case in the State of Mississippi that determines the primary care and custody of a minor child (or children) will cite the case of Albright v. Albright. Within Albright, the Mississippi Supreme Court provided a list of factors that the Chancellor must consider when making the determination about the best interests of the minor child as it relates to the parent who should be awarded primary physical custody.

The factors, together with a brief explanation of each, are as follows:

  • The age, health, and sex (gender) of the child;

The commonly referred to “tender years doctrine”, which had suggested that very young children can only be cared for by the mother, has been on the decline. However, the gender and age as it relates to puberty and the corresponding biological issues can be considered in this factor. Also, any chronic and/or specific health issues that the child may be facing are to be considered. This factor would favor the parent that can better or more consistently attend to these needs.

  • The continuity of care of the child prior to the separation of the parents;

This relates to the stability of the relationship between parent and child and it can be difficult for a Chancellor to determine if this factor favors one parent over the other. (I suppose this is true of all of these factors). Testimony about the day-to-day care for the children is important. The consideration can become more clear if one parent moves out of the house and/or moves away and there is a lapse in time between those actions and the trial.

  • The parenting skills and willingness and capacity to provide primary care for the child;

Let’s face it, some people are not good with kids, even their own, and not all people have the desire to put in the time and effort to be the primary custodial parent. But where there is a court case about the custody of children, we can assume that they are willing to do so. Willingness notwithstanding, not all people have the mental, physical or perhaps financial capacity for primary custody.

  • The employment of the parent and the responsibilities of that employment;

Some parents are “penalized” for being the bread winner and can’t take off work whenever there is a crisis. On the other hand, self-employed or the business owner might have great responsibilities but also enjoy freedom of schedule.

  • The physical and mental health and age of each parent;

This factor seems fairly straight forward. Sick or mentally ill or alcoholic parents will be at a huge disadvantage, and perhaps they should.

  • The emotional ties of the parent and the child;

Unlike number 5, above, this factor is not so “cut and dried”. Witness testimony regarding how the child interacts with each parent is usually helpful. Therefore, your lawyer should know very early in the process about your potential witnesses. Some bonds are not mistakable and irreplaceable and we should all hope that the Chancellor, with the help of witness testimony, will be able to spot this kind of bond.

  • The moral fitness of each parent;

An “at-fault” party in a divorce proceeding may face the firing squad twice. An adulterous affair or proven addiction to drugs or alcohol would provide grounds for a divorce while simultaneously conceding this factor to the other party. Bad behavior of a parent, bad habits, poor morals, are often punished in Chancery Court.

  • The home, school and community record of the child;

For children advancing in age, active in sports, school and/or church activities wouldn’t want to uproot them. This factor can also be meshed in with factor #3, above. The parent who shows more involvement in schoolwork and other associations of the child will enjoy an advantage.

  • The preference of the child, when the child has achieved the age sufficient , by law, to express such a preference;

There is a common misconception that as soon as the child turns 12 (usually the recognized sufficient age) that this is the only factor… it is only one factor and in a Modification case, the other facets must be met first, as indicated in my prior blog article.

  • The stability of home and employment of each parent;

The Court would be reluctant to award primary custody to the parent who has a difficult time paying the rent, keeping a job, etc. Unlike factor #4, above, this one recognizes that a parent that holds down a steady job can be favored. So it would appear at first glance that these two factors (#4 and #10) are at odds with each other. Rest assured, they are not. Job stability, or the lack thereof, is the focus of this factor.

  • Any other factors relevant to the parent-child relationship;

This is the “catch all”. Chancellor that depends on this factor will most often define in clear terms what he is talking about and what piece of evidence or part of testimony during the trial that he has based this decision.

An Albright analysis is not supposed to be a score card system; that is, you don’t just add up each side to find the “winner.” Factors can favor one parent over the other, strongly favor, slightly favor, or they can be neutral. More or less emphasis can be placed on one factor over the other. An experienced family law attorney will be very knowledgeable about these factors and he should also be familiar with any specific “slants” or pre-conceived notions that the Chancellor assigned to your case might have.

Michael Louvier is a graduate of Mississippi College School of Law (1994). He has been married for 28 years (Tammy) and they have 2 children (Amy, 25 and Nick 20).

Are Judge Ideologies Reflective of District?

Thursday, March 7th, 2019

The short answer is not just yes, but without question. Now, let’s speak to a couple of different issues that frequently come up during domestic and family related court cases. I will pick a few of the most common to best exemplify that no two chancellors are created equally. Some can rule totally ant-opposite each other on the exact same issues and facts. It can be a frustrating scenario for lawyer and client alike.

The Morality Clause

This issue comes up in virtually every case I have ever managed. The difference in results can be, well, astonishing. In some of the more left-leaning counties, chancellors are inclined to determine that there is no harm done to a child by having a non-married romantic partner stay the night or even cohabitate outright. No harm no foul, at least in their view. Try arguing that the sleep over with the new love is harmless in Rankin or Madison county and you will get laughed out of the room unless there is a VERY plausible reason. They almost do not exist.

Alimony awards

An award of alimony is more generous and easily obtained in liberal counties of Mississippi. Some of the old-school, conservative chancellors will award alimony, but the amounts tend to smaller. Be it periodic, lump-sum, reimbursement, or rehabilitative alimony, they are usually more conservative in their awards. Not surprising, right? I will say there is some variance in the awards of alimony vs. no alimony, but not as great as the variance in the bare amount of award. The variations, in my experience, can vary even as much as threefold depending on venue. The difference in even $2,000 a month makes a big difference in most people’s bottom line.

Attorneys fees

This one can be tricky, although there is always a best way to argue that you are entitled to attorneys fees. However, they are far from a guarantee. They are predominately based on ability to pay your lawyer vs. your opponent’s ability to pay theirs. This is where some significant discrepancy comes about in the courts method of interpretation. I have seen some conservative chancellors vanish a wife her lawyer fees request because, even though she made less than she spent, she recently bought a new car and took excessive vacations. This was the result even though husband made about five-fold her income. In a more liberal venue, the result would clearly have been different. A large award would be most likely the outcome.

Standard vs. Liberal Visitation

There are some chancellors, most of them older and somewhat old-fashioned (not that being so is a bad thing), who are strictly inclined to only award standard, every other weekend type visitation to the non-custodial parent (n.c.p.) Usually being the dad, but not always, the n.c.p. gets a very short end of the custody stick. Conversely, some of the younger and progressive counties elect judges who are willing to award either liberal visits for the n.c.p. or even outright joint custody.

In sum, lawyers will never be able to pull out the proverbial crystal ball and tell you precisely what to expect. Ask them what ideology your chancellor brings to the courthouse. It makes so much difference even in what may appear a simple case.

Matthew Poole is a 2018 Top 10 rated Mississippi domestic attorney by the National Association of Family Lawyers, 2004 Finalist of the Copeland Cook Taylor and Bush Trial Competition, and 2001 Millsaps Second Century Scholar. He will be speaking to members of the Mississippi Bar in July, 2019 on divorce practice and procedure.