This is unfair.

I only want what is fair.

The judge is being unfair to me.

I hear these sorts of statements and my eyes automatically begin to roll. Notions of fairness are wildly subjective, jejune, and inevitably small-minded and self-centered. What you think is fair for you inevitably seems unfair to the other person. What is just, on the other hand, requires looking outward for an honest rendering of the facts and reflecting inward to balance multiple interests to determine what resolution is correct and reasonable. In the legal world and in the moral world, we deal with justice, not fairness. Justice is for grown-ups; fairness is for children.

Regardless of my distaste for complaints about fairness, people tend to find the concept of fairness much easier to grasp than justice. Often my job centers on teaching parents about justice by recontextualizing the question of fairness to its proper nexus - the kids. After all, the polestar consideration of the chancery court is the best interest of children, and no parent can say with a straight-face that they do not want the best for their kids.

So the question becomes: What would be fair for the children? The answer, unfortunately, must be that nothing about this custody issue is fair for the children. They did not ask to be in a custody dispute, they did nothing to contribute to it, but they must suffer the consequences of their parents’ actions. Recognition of this truth helps provide the correct perspective for assessing a custody case. Once a parent agrees that the entire situation is fundamentally unfair for the children, then we can begin to work our way towards a just result.

First, should the children even see the other parent? Sometimes the answer is no. If the parent acts violently, abuses drugs and alcohol, and/or refuses to take any steps to remedy their destructive behavior, the child may legitimately be better off not seeing that parent. The just result requires removing the toxic parents permanently from the child’s life so that the child may live with the stability he or she needs to be safe and to recover from the trauma of having his or her parent(s) choose vice over their children.

Often the parent demanding fairness for themselves perpetrates the violence and/or abuses drug or alcohol. Unsurprisingly, these people often blame the unfair world for their self-inflicted problems. However, denial about their own role in the destruction of their lives does not always blind them to objective truth. Then the question becomes whether it is fair for your child to experience life with an addict or to witness violence, regardless of the perpetrator. Of course, the answer must be no. If it is anything else, then the court already has its answer. But if a parent agrees that the child should live his or her life without exposure to violence or addiction, then the parent must take steps to demonstrate a commitment to a violence and/or addiction free life. N.A., A.A., Rehab, DVIP courses, anger management, regular drug tests, counseling, therapy, etc. These are the tools through which a parent can prove his or her dedication to a better life. If a parent refuses, again the court has its answer. If the parent complies (and also behaves correctly) then the court also has an answer.

Parents will often blame the other for such behavior or endeavor into whataboutism to call into question the fairness of the inquiry or the requirements placed upon them i.e. she’s the real addict, she’s the real abuser, she’s the one who got arrested, I don’t have a problem but for her. Again I role my eyes at the immaturity. It does not matter what the other parent did because it does not change what needs to be done. If one parent takes the steps to assure the court that he or she has remedied their ways and the other parent has only whined and complained about how unfair it is, then the court has its answer. It is fairer for the child to have one parent who has remedied his or her ways than two parents who refuse to address any issues.

Questions of violence and addiction exist in only a percentage of custody disputes. Parental disputes exist in all. What is fair for the child is for the parents to put aside their personal grievances and work as a team to provide the child with the best life possible. What that means is consciously and consistently choosing to take the high road. The other parent gets under your skin? So what, act like an adult and toughen up. The other parent antagonizes you? So what, act like an adult and don’t take the bait. The other parent won’t share information? So what, act like an adult and get the information yourself. The other parent makes you angry? So what, act like an adult and hold your tongue. Do not give the other parent an excuse to act like a petulant child, behave yourself like a responsible, well-adjusted adult, and you will always end up looking like the responsible, well-adjusted parent. That is best for you, best for your kid and best for your court case. The result may not appear fair to the other parent, but, god-willing, you will see the justice in the court’s decision.

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.