Fulk v. Fulk

827 So. 2d 736 (Miss. App. 2002)

 

RULE:

The polestar consideration in child custody cases is the best interest and welfare of the child. Mississippi courts have guidelines for determining the best placement of the child after custody disputes. These factors include: (1) age, health and sex of the child; (2) determination of the parent that had the continuity of care prior to the separation; (3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of parents; (8) the home, school and community record of the child; (9) the preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Marital fault should not be used as a sanction in the custody decision, nor should differences in religion, personal values and lifestyles be the sole basis for custody decisions. 

In order to lend some degree of clarity to the chancellor's decision process and thereby make an appellate review as meaningful as possible, a chancellor should properly make findings of fact on the record as to the various factors. It is not enough for the chancellor to simply state that he considered these factors. 

FACTS:

Rhonda and Jeffery were married on September 11, 1999, they were separated in September, 2000, and their son was born in January, 2001. The Sunflower County Chancery Court, Mississippi, awarded custody of the parties' minor child to Jeffery, the biological father. Rhonda appealed. Rhonda argued that the chancellor erred as a matter of law by failing to make appropriate findings as to the guidelines for determining the best placement of the child after custody disputes. 

ISSUE:

Did the chancellor err in its findings?

ANSWER:

Yes .

CONCLUSION:

The appellate court reversed and remanded the case for sufficient findings. The court found that the chancellor considered some child custody guideline factors, but not all. She failed to give sufficient findings as to why she came to the conclusions that she did. The chancellor did not discuss the factor of the emotional ties between the child and parent and the age and sex of the child. Simply dictating that the father was favored without explaining why was not enough. The chancellor erred by relying so heavily on the mother's lesbian affair, due to the father's willingness to be an eager participant. The chancellor erred by not considering certain domestic incidents that occurred. Given the absence of any evidence of harm or danger to the child, the chancellor erred by drastically limiting the mother's visitation by ordering supervised visitation and prohibiting the child from having contact with his maternal grandfather. The record was devoid of evidence that would support a restriction against overnight visitation and visitation with the maternal grandfather.

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