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Origins of the Albright Factors in Mississippi Custody Cases

How do Chancellors (judges) make a custody determination?

Well, since the landmark 1983 Mississippi Supreme Court Case Albright v. Albright, Chancellors have had the explicit mandate to make custody determinations based on the best interest and welfare of the children. While that had arguably been the rule for decades before the Albright decision, it had not necessarily been the practice.

Before the mid-19th century, in both the United States and in Jolly Ol' England, children were viewed as their father's property. This was based on the Roman doctrine of patria potesta (power of the father), which gave the father, as the head of the household, rights over his children.

As the famous legal scholar, William Blackstone put it: "The legal power of a father, —for a mother, as such, is entitled to no power, but only to reverence and respect; the power of a father, I say, over the persons of his children ceases at the age of twenty-one: for they are then enfranchised by arrive at years of discretion, or that point which the law has established, as some must necessarily be established, when the empire of the father, or other guardian, gives place to the empire of reason. Yet, till that age arrives, this empire of the father continues even after his death; for he may by his will appoint a guardian to his children."

However, as early as the mid-17th century, there were movements towards the best interest standard. Lord William Mansfield, a brilliant and massively influential English jurist, began to disrupt the age old doctrine of patria potesta in favor of the the doctrine of parens patriae, which gave the government legal authority to protect those who cannot protect themselves i.e. children and disabled people. In Rex v. Delaval (1763), Lord Mansfield emancipated an 18-year-old daughter rather than return her to her father, who had sold her into prostitution. Lord Mansfield noted that his ruling did not conflict with previous court decisions awarding custody to the father. However, he clarified that the court does not return children to their fathers because they are their father's property but because the facts of the case require it, and, on the facts of the Delaval case, this child should be emancipated rather than returned.

A few years later, Lord Mansfield reasserted this logic in the Blissets case. In Blissets, Lord Mansfield allowed a six-year-old to remain with the mother rather than returning him to his father. Lord Mansfield reasoned that (1) when parties disagree, the court will do what shall appear best for the child; and (2) a father who has abandoned his parental duties has forfeited his parental rights.

Unfortunately, Lord Mansfield's views were ahead of their time, and courts largely went back to uniformly awarding custody of children to their fathers.

Things changed through the 19th century, moving our custody law towards the Tender Years Rule, which would result in a 180-degree change in custody awards. There were pragmatic changes to family dynamics for one. When families resided in a largely agrarian society the family acted as its own little economic unit, and the property view of children at least made practical sense. However, as the industrial revolution went full tilt, fathers started working outside the home, and mothers increasingly stayed home with children forfeiting the primary reasoning for uniformly awarding custody to fathers.

You also began to see courts recognize the importance of mothers with increased frequency. In the landmark case, Commonwealth v. Addicks (Penn. 1813), the Pennsylvania court, citing Lord Mansfield's opinion in Rex v. Delavalheld that it was not bound to return the children to their father and would only do so "if we think that, under the circumstances of the case, it ought to be done." The court then awarded custody to the mother.

Things shifted again in England by the early to mid-19th century. In Rex v. Greenhill (England 1836), the father left his family to be with his mistress, leaving behind three children under 6. He later brought a writ of habeas corpus to retrieve his children to force a reconciliation with his wife. The court concluded that it had no authority to deny the father custody though they loathed making such a ruling. In desperation, the mother fled with the children. This case ultimately led to a change in English law, giving Chancery courts the power to order maternal custody for children under seven and visitation rights for children of any age so long as she was not guilty of adultery. The statute was later amended in 1973 to extend the maternal custody up to the age of 16.

Finally, the Tender Years Rule came into full force and effect in Mississippi in 1879. In Johns v. Johns, the Mississippi Supreme Court granted custody of two young children to the mother, writing:

"The fruits of this unfortunate marriage are two children, one about four years old, and the other about two years of age. They should be with their mother. They need her care and attention. They would have been with her but for the breach of his marital duties by their father, which drove the mother from her home."

For approximately 100 years following the Johns case, the Tender Years rule predominated Mississippi custody law, and mothers were almost uniformly granted custody of children, particularly small children. The rule can be summarized as follows:

'In all cases where any child is of such tender age as to require the mother's care for its physical welfare it should be awarded to her custody, at least until it reaches that age and maturity where it can be equally well cared for by other persons.'

-Amis, Divorce and Separation in Mississippi, Sec 219, p. 296

However, just as societal changes pulled custody decisions away from uniformly giving custody to fathers, societal changes also led to the subordination of the Tender Years rule. In the latter half of the 20th century, family dynamics began to shift. More and more women were working outside of the home. More and more men were sharing in the parenting responsibilities for their children. Without the clear demarcation of a mother's role versus a father's role, the applicability of the Tender Years Rule became increasingly suspect. More simply, it quit making sense that a mother should automatically receive custody of her children simply because she is the mother.

The latter half of the 20th century also saw a rise in equality lawsuits. Based on the Equal Protection Clause of the 14th Amendment, challenges to laws that were discriminatory on the basis of sex (amongst other things) began to shift the legal landscape. In the United States Supreme Court decision Orr v. Orr, an Alabama law that only allowed alimony to be awarded to women was struck down as unconstitutional. As Justice Brennan explained:

'A gender-based classification which, as compared to a gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny.'

Which brings us to Albright v. Albright.

The Albrights were a young married couple living on the Gulf Coast. Both were enlisted in the Air Force. They made commiserate pay. They shared in the rearing of their son. They were both found fit to have paramount custody of the minor child, yet the mother was awarded custody of the child based on the Tender Years rule. The father appealed, arguing that the ruling and the Tender Years Rule itself violated his 14th amendment rights.

However, the Mississippi Supreme Court did not reach the constitutional question. Mississippi already had a law on the books that would resolve the matter. Per §93-13-1 of the Mississippi Code, "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…" As such, neither parent has a preferential right to the minor child.

The court, in its wisdom, did not altogether rid our jurisprudence of the Tender Years. Instead the court subjugated it to the polestar consideration of the Chancery Court - the best interest and welfare of children. Instead, it became just one factor amongst many that the judge is to consider when determining what custody arrangement is in the best interest of the children. The court wrote:

"The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship."

The court further clarified that "[m]arital fault should not be used as a sanction in custody awards. Relative financial situations is not controlling since the duty to support is independent of the right to custody. Differences in religion, personal values and lifestyles should not be the sole basis for custody decisions."

Since the Albright decision, our Supreme Court repeatedly reaffirmed that the polestar consideration in a custody determination is the best interest and welfare of children, and has continued to require that chancellor's utilize the "Albright factors" in making a custody determination. However, the factors are not a mathematical formula. One factor may end up being dispositive as, again, the best interest of the children is the polestar consideration. But that topic is for another day. Suffice it to say that we have over thirty years of case law clarifying, muddying, and extrapolating the Albright holding.