Archive for the ‘and Gender’ Category

Albright Factors: Age, Health, and Gender

Tuesday, January 16th, 2018

Many of you are probably thinking that, according to our last post, that the age of the child is no longer considered a major factor in child custody decisions. This is not true, as even though the tender years doctrine is no longer treated as a hardline rule, the age of the child is still a factor that courts weigh in these cases, along with the health and gender of the child. The Mississippi Court of Appeals noted that sometimes all three factors are grouped into one larger factor, and sometimes age is separated from health and gender as its own factor. Flowers v. Flowers, 90 So.3d 672, 679 (Miss. Ct. App. 2012). While these factors may seem rather cut and dry, there are many ways that an attorney can construe these factors in the favor of their client to swing the balance of the court’s decision on child custody.

While most parents are concerned and interested in the health of their child, not all of those parents can give the child the attention their health deserves. Children afflicted by serious illnesses require a lot of personal care, and that means a lot of doctor’s appointments. Courts may look to see which of the parents is more able to accompany the child to these health-related appointments in making their decision on custody. That parent may also be better able to spend more time with the child making sure they feel safe, loved, and often simply to take their mind off their illness. While a parent with a demanding job can feel a huge amount of concern for their child’s health, they also cannot be in two places at once.

As mentioned in our previous post, the age of the child was given large consideration in child custody decisions, and although it is not the only factor, courts still use it in their analysis. The age of the child often relates to breastfeeding, as the standard was that during the child’s “tender years” that the presumption lied with the mother being the best guardian until either parent could equally care for the child. Before the prevalence of formula, this factor would have all but certainly favored the mother, leaving fathers with an uphill battle for custody of their child.

Related to the application of the tender years doctrine is the factor of the gender of the child. This factor can play a part as the child grows older and enters adolescence. Mississippi courts have noted that growing and maturing boys could need guidance from their fathers, as well as maturing girls from their mothers, and that this needed help and direction should be considered when making a custody decision. Parker v. South, 913 So.2d 339 (Miss. Ct. App. 2005).

The health, age and sex of the child factors in child custody cases may seem like afterthoughts compared to some others that will follow in this series, however these can still play a pivotal role in a chancellor’s decision in awarding custody. If a parent is able to spend more time with a child affected by illnesses, a chancellor will consider that. If the child is entering a confusing and frustrating time in their lives and one parent is better suited to help them through it, a chancellor will consider that as well. Many people will probably skim over this factor because it is often not a “smoking gun,” but it is still worthy of consideration, because it can play a large role in the outcome.