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Common sense and the Court of Appeals

By By Suzanne Monk / managing editor
August 24, 2003
Men tend to feel they get the short end of the stick in a divorce.
While women have entered the workplace, men are usually the primary breadwinners in a family, out-earning their wives for a lot of reasons that I won't go into here. So, they usually give up more in the financial settlement.
And, while fathers are more involved with their children than they used to be, women still tend to have the primary responsibility for child-rearing. All things being equal, courts are inclined to award custody of a couple's children to the wife.
I don't attend divorce trials and custody hearings. I can't think of a reason to, and I can't imagine who the people involved would have to be before I made an exception to that rule.
But, I will on occasion talk through an anonymous divorce appeal that illustrates the kinds of issues that are involved. I wrote one last year about an appeal and reversal in the financial settlement between a husband and an adulterous wife.
This column is about child custody and a man who went all the way to the Mississippi Court of Appeals to regain custody of his daughter.
How custody
hearings work
When John and Mary divorced in 1994, John was awarded custody of the couple's young daughter. Mary was granted visitation and required to pay child support.
Time rocked on until June 2000, when Mary filed a petition asking the judge to take the child from John and award custody to her.
A hearing was scheduled before Chancery Judge Sarah Springer.
If you're the non-custodial parent in a scenario like that, you have to prove two things: 1) A "material change" in circumstances affecting the child has occurred; and 2) In light of that, a change of custody is in the best interest of the child.
You have to take the steps in order, and you can't move on to Step 2 until you've prevailed in Step 1.
Among the things Mary said constituted material changes were:
John interfered with visitation.
John worked at night.
The child was fighting with her
Judge Springer agreed with Mary. Having decided in Mary's favor in Step 1, the judge moved on to Step 2 consideration of what are called "Albright factors," after a precedent-setting case.
As you might expect, the Albright factors include the child's health, parenting skills, ability to provide care, the parents' jobs and their physical and mental health, emotional ties, moral fitness, stability of the home, school records and the child's preference.
Judge Springer weighed these factors in Mary's favor. Mary was awarded custody in May 2002 and John was required to pay child support.
Court of Appeals
John appealed the decision to the Mississippi Court of Appeals, which reversed Springer earlier this month in terse language on all issues affecting child custody.
As for the material changes:
The court said that if John interfered with Mary's visitation rights, that was a reason to hold him in contempt and throw him in jail, if necessary, to force compliance not a reason to change custody.
The court said the fact that John worked at night would be a material change only if he left his daughter unsupervised during that time. This was not the case at John's house. His new wife took care of the child while John was away.
Finally, the court observed that siblings are going to fuss and fight.
On to Step 2
Since the Court of Appeals reversed Judge Springer on whether or not a material change had occurred, consideration of the "Albright factors" was moot.
But, the court went through them for several pages anyway, finding that some factors favored neither parent, some favored John and only one favored Mary.
And, there are a couple of things I haven't mentioned about Mary, things the Court of Appeals felt Judge Springer had given insufficient weight in her deliberations.
At the time of the custody hearing, Mary was an unemployed, part-time student. She had remarried twice since her divorce from John; her current husband lived in another state and she had no plans to join him.
She had been arrested for public intoxication and indecent exposure.
Mary had another child with the husband after John. The Mississippi Department of Human Services removed that child from her custody and returned it to the father.
The Court of Appeals returned custody to John.
Sometimes, court rulings are convoluted, but this one seems based in common sense. The problem with appealing, as I'm sure John has discovered, is that it's lengthy and expensive whether you win or lose.
I bet John thinks it was worth it.