Acting like an asshole during your divorce is not only a poor strategy but is guaranteed to hurt your children. It is okay to be angry. It is okay to be hurt. It is okay to feel betrayed. Often, those feelings are not only well-deserved but needed to process the dissolution of what you once thought was a life long loving partnership. However, it is not okay to put those feelings on your children.

In my office, we often discuss the length of litigation versus the length of co-parenting. Litigation ends. Your connection to the other parent never really ends and, absent termination, only recedes far into the background once your children have grown. Until then, the goal is for you and your ex to co-parent as peacefully as possible, not for them, but for your children. And if your counter-part insists on acting like a prick, you do not get a free pass to act like one back.

Why?

Because your kids are what matters. Your job during the divorce is to help your kids get through it with as little stress, anxiety and trauma as possible. You want them to remain kids. Lord, let them remain kids.

To do that, you have to not bad mouth the other parent. You have to be supportive even with things you do not necessarily agree with. You have to give your kids time to adjust and the other parent to adjust. You have to be polite at events. You should send pictures of your kids to your ex just like you did when you were together. You do not discuss the court case with the kids. You reassure them they are loved by both parents.

You do draw lines for the kids safety and well-being. Some things are easy. If your ex smokes meth or is violent or has severe mental health problems, then it is a no brainer to take action to protect your kids - take legal action (Employing self-help (going against a court order) is a bad idea. Your lawyer is not just your advocate, he or she is also your counselor. Use their counsel). If the other side is bad off and putting your kids in danger or may put them in real danger, your lawyer has weapons at his or her disposal to help you.

Other things, however, are much more complicated. Things like bedtimes, meals, outside play, and screen consumption may drive you up the wall. You may think the way your ex is handling things is harmful to your kids, but you have to draw a careful line on how you handle things.

Generally, first you try to address these things with your ex. Talk like grown-ups. Point out the concerns. Give your ex room to parent and trust them as much as you can. Assume good intentions. Is your ex the type of person who would hurt your kid? If the answer is no (and if they never have in the past and have never feigned as if they would, then the answer is no), then back off and help your ex in a way they will accept.

If it is more than that, talk to your lawyer. You may have a case for modifying custody. The court’s paramount concern is the best interest of children. Discuss the standards and the level of bad behavior needed to change custody or visitation. These things happen all the time. You have to do it the right way though.

What you cannot do is spiral. You cannot get in fights. You cannot bad mouth the parent to your kids. You absolutely cannot air grievances on social media. All of these things are bad for your kids but also bad for your court case.

The courts want maturity and stability. They are not perfect, but you must put yourself in a position at all times to say loudly and proudly “My kids come first” and you actions have to show the truth in that statement.

If you need help, contact my office and set up a consultation.

Be cool. Easy advice to give, harder to follow.

Every family law lawyer should strive to always keep the sheer emotional intensity of their client’s situation at the forefront of their mind. We have many cases, but, typically, the client has one case and that one case deals with what is most precious in the world to them: their family. When our families are threatened, it is easy to lash out. Don’t.

A lot of custody cases come down to what is, in essence, a maturity competition i.e. which parent is going to act like a grown-up and put their kid first. This seems self-evident, but, again, we are dealing with big emotions and complicated dynamics - remember, at some point, dollars to donuts, the parties liked each other enough to sleep together and have a child, and that falling apart tends to be quite difficult. Not only is your heartbroken but you are also dealing with a person who knows how to push all of your buttons and, often, an intense financial strain. It is a lot.

The rules, however, remain the same. Get your kids to school on time every day. Take them to the doctor when they are sick and need to go to the doctor - no gaming the system with constant urgent care visits. Speak politely to the other parent and his or her family. Don’t post your personal business on social media. Keep your job. Don’t move your new girlfriend or boyfriend in. If you do, make sure you’ve done a background check. Many, many times I have had to deal with women in particular who did not know their new boyfriend had any felonies until I told them. Make sure your kids get balanced meals. Spend time with your kids. Take them to their extracurriculars. Send pictures to your ex when the kids are doing something cool. Send pictures to your ex’s parents too if that is what you did before the separation.

All of these things may feel repugnant in the moment and your ex may do everything in his or her power to make you lash out, but its all about the kids and, in the end, the court is going to see who is the mature parent and who is acting like an immature jackass. And, even if you misstepped and primary custody is unlikely, it is never too late to grow up. You do not know when your kids are going to need you to step up. Be prepared.

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.