Fulk v. Fulk

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



The polestar consideration in child custody cases is the best interest and welfare of the child.  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.


A biological father filed for divorce as well as custody of a minor child. The chancery court awarded temporary custody of the two-and-one half month old baby to the father at a hearing which the mother did not attend.  Subsequently, the parties filed a joint motion, agreeing to a divorce based on irreconcilable differences, but following testimony from the parties and various witnesses, the chancellor awarded sole custody of the baby to the father, and granted the mother a very limited supervised visitation on Sunday mornings. Furthermore, the chancellor ruled that the maternal grandfather was prohibited from visiting with the baby. The mother appealed, arguing 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. 


Did the chancery court err in awarding full custody of a baby to its biological father without considering several guidelines for determining which placement is in the best interests of the child?




The appellate court found that the chancellor neither gave sufficient findings to support her conclusions nor discussed several factors such as the emotional ties between the baby and the mother, that the mother had had the continuity of care prior to the separation; which parent had the best parenting skills, etc. Rather, the chancellor simply favored the father based upon the father's charges that the mother had had a lesbian affair; the chancellor failed to note that the father had been an eager participant in the triangle. The chancellor compounded her error by not considering certain domestic incidents that had occurred, i.e. the imprisonment of the mother in a locked shed, the father's drug use, etc. 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.

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