Reed v. Fair


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Docket Number: 2009-CA-01390-COA
Court of Appeals: Opinion Link
Opinion Date: 12-14-2010
Opinion Author: Maxwell, J.
Holding: Affirmed.
Additional Case Information: Topic: Child custody - Legal standard - Best interest of child - Albright analysis
Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Barnes, Ishee and Roberts, JJ.
Judge(s) Concurring Separately: Griffis, J., specially concurs with separate written opinion joined by King, C.J.
Concurs in Result Only: Carlton, J., concurs in result only with separate written opinion.
Procedural History: Bench Trial
Nature of the Case: CIVIL - CUSTODY
Trial Court: Date of Trial Judgment: 07-28-2009
Appealed from: COPIAH COUNTY CHANCERY COURT
Judge: Ed Patten
Disposition: CUSTODY AWARDED TO FATHER
Case Number: 2009-201
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Theresa N. Reed and Irene Daniels




 FELECIA PERKINS



  
  • Appellant #1 Brief
    		•
    Appellee: Marvin F. Fair RENEE H. BERRY  
    Synopsis provided by:

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    Topic: Child custody - Legal standard - Best interest of child - Albright analysis
    Summary of the Facts: M.T.F. lived with his great-grandmother, Irene Daniels, for twelve years before his father, Marvin Fair, sought custody. The chancellor applied the Albright factors and found awarding custody to Fair was in M.T.F.’s best interest. M.T.F.’s mother, Theresa Reed, appeals.
    Summary of Opinion Analysis: Issue 1: Legal standard Reed argues the chancellor applied the wrong legal standard in awarding custody of M.T.F. Generally, in an initial custody proceeding, the parties are deemed on equal footing, and custody is awarded based on the best interest of the child under the Albright factors. But there are situations where certain legal presumptions prevent the parties from having an equal claim to custody, such as where a father of a child born out of wedlock does not acknowledge the child as his own. Here, because Fair has acknowledged M.T.F., he asserts a claim to custody equal to Reed. While chancellors must also consider the Albright factors in modification proceedings, the movant carries a heavier burden. In a modification action, the party seeking custody must prove that since the original custody award, there has been a material change in circumstances adverse to the child, and a modification in custody would be in the child’s best interest. The ‘material changes’ standard used in modification proceedings is dependent on there being a prior determination of custody. Chancellors may, however, consider the length of a parent’s delay in asserting a claim for custody in determining the best interest of the child. Thus, the chancellor applied the correct legal standard. Issue 2: Albright analysis Here, the chancellor made findings of fact and conclusions of law on each Albright factor. The chancellor held that under the totality of the circumstances, legal and physical custody should be awarded to Fair. The chancellor found that no factor favored Reed, while multiple factors favored Fair. The chancellor noted M.T.F. had likely been a sexual-abuse victim. While Reed allowed M.T.F. to determine his own need for counseling, the chancellor found important that Fair had already sought the services of a child psychologist and was prepared to pay any out-of-pocket expenses for M.T.F.’s counseling. The chancellor also found Reed has not adequately provided for M.T.F.’s vision and dental care. Reed has a total of four children born out of wedlock and admitted she might be pregnant with her fifth out-of-wedlock child. She voluntarily relinquished custody of M.T.F.’s sister to Fair’s aunt. And she admitted being involved in violent incidents in the past, including a knife fight. Fair lives in a condominium where M.T.F. can have his own room, while Reed lives in a two-bedroom apartment with “lots of other people.” Considering the totality of the circumstances surrounding the chancellor’s analysis of M.T.F.’s best interest, the chancellor did not manifestly err in awarding custody to Fair.


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