SB v. LW, 1999-CA-01540-COA.

CourtCourt of Appeals of Mississippi
Citation793 So.2d 656
Docket NumberNo. 1999-CA-01540-COA.,1999-CA-01540-COA.
PartiesS.B., Appellant v. L.W., Appellee.
Decision Date13 March 2001

793 So.2d 656

S.B., Appellant
L.W., Appellee

No. 1999-CA-01540-COA.

Court of Appeals of Mississippi.

March 13, 2001.

Rehearing Denied May 22, 2001.

Certiorari Denied September 6, 2001.

Mitchell M. Lundy Jr., Grenada, for Appellant.

793 So.2d 657
Marjorie H. O'Donnell, T. Swayze Alford, Oxford, for Appellee


CHANDLER, J., for the Court:

¶ 1. The parties had a child together out of wedlock. After the mother expressed her intent to move from Lafayette County to the Mississippi Gulf Coast, the father petitioned the Lafayette County Chancery Court for a declaration of paternity and for custody of the child. Aggrieved that the chancellor awarded custody to the father, the mother appealed alleging that: (1) the chancellor manifestly erred by applying the law governing child custody in divorce cases rather than applying the law governing custody modifications; and (2) the chancellor erred in granting custody to the father because no material change in circumstances were shown. Finding no error, we affirm.


¶ 2. The parties had a sexual relationship which led to the conception of their daughter. While pregnant, the mother moved out of the home she shared with the father to cohabit with a woman. A few hours after the birth of the parties' daughter, the father visited the hospital and signed the child's birth certificate.

¶ 3. During the child's infancy arid early childhood, the mother worked full time as an emergency room nurse. The father worked full time as a paramedic and also held public office. The parties worked opposite shifts, so while the mother was on duty the father cared for the child. The mother acknowledged that she and the father spent equal amounts of time with their daughter during the first four or five years of her life. The father voluntarily paid the mother $100 per month for child support and provided medical insurance for the child. This arrangement was never formalized in court.

¶ 4. In 1994, the mother moved into a house with a woman. The mother testified that she was a bisexual and admitted that her relationship with the woman was intimate. The mother testified that she and her partner did not hold hands or kiss in front of the child; however, the child had seen her mother and her mother's partner share a bed. The mother had discussed her sexual preference with her daughter once, and she admitted that her daughter probably had an idea of the nature of her relationship with her partner. The mother agreed that the lesbian lifestyle was not generally accepted in today's society and stated that she did not believe that her daughter should be raised as a lesbian.

¶ 5. When the child began attending school, she spent more time in her mother's care than in her father's. The parties agreed that their daughter would stay with her father every other weekend. The child also spent a lot of time with her father during the summer and accompanied him and his wife and stepchildren on family vacations. The child has presumably been living with the father since August 17, 1999, the date the custody decree was entered in the court below.

¶ 6. When the mother quit her full time job and expressed her intention to move to Gulfport to start a business, the father petitioned the chancery court for custody of the child. The mother had reduced her working hours from about 40 to 48 per week to approximately 16 per week. The mother testified that initially she would devote a lot of time to starting her business. She had no idea where she, her partner, and her child would live, and also did not know where her daughter would attend school. The mother admitted that a move to Gulfport was not in her daughter's best interest.

793 So.2d 658
¶ 7. After applying the factors delineated in Albright v. Albright, 437 So.2d 1003 (Miss.1983), the chancellor determined that the child's best interests would be better served in her father's custody. Since custody had never before been judicially determined, the chancellor treated the case as one for initial custody rather than one for modification of custody

¶ 8. The chancellor held the parties equal on the following Albright factors: child's age, parents' age, child's sex, child's health, and emotional ties between the parents and the child. The chancellor noted that the child spent equal time with both parents until she started school. The chancellor acknowledged that the child lived with her mother once school started, but noted that the father spent ample time with her. While he did not specifically attribute the continuity of care factor to either party, it is clear that the chancellor considered the length of time that the child had spent under each parents' care.

¶ 9. The chancellor ruled that the following factors were in the father's favor: employment, financial stability, stability of environment, and moral fitness. He contrasted the father's employment and financial stability to the mother's. The father worked a full time job and earned $54,000 per year. His household income was more than $100,000. In contrast, the mother reduced her full time hours to part time which gave her enough money to pay her car payment and not much else. The father was financially stable; in contrast, the mother's financial future was uncertain because she planned to move to Gulfport to start a business.

¶ 10. The chancellor also contrasted the stability of the environment that the father would provide to the environment that the mother would provide. He noted that the father would provide a five-bedroom home in which the child would enjoy a private bedroom. Further, the father was married and his wife and stepchildren, with whom the child had close relationships, lived in the home. Thus, the child would be in a stable, traditional, family setting. The chancellor further noted that Lafayette County was noted for its excellent public school system. In contrast, the mother had not yet found a place to live in Gulfport and did not know where the child would attend school. Further, the mother would initially spend a great amount of time in starting the business, time which would take away from the child's care. The chancellor was moved by the mother's admission that it was not in her daughter's best interest to move away from Lafayette County where she had extensive extended family.

¶ 11. The chancellor noted that the mother had been married before and that a son had been born of that marital union. The mother relinquished custody of her son to her ex-husband because she did not feel that she was fit to be a parent. The mother explained that she is fit to be her daughter's custodial parent because she, the mother, has grown up. The chancellor did not consider this explanation sufficient. The chancellor opined that the mother had "a very severe emotional problem."

¶ 12. The chancellor commented on the mother's lesbian lifestyle as it impacted the environmental stability of her home and also as it bore on her moral fitness. The chancellor noted that the mother had two live-in lovers since the child was born. The chancellor also stated that while a lesbian relationship is more acceptable today, it is not the norm. The chancellor acknowledged that he could not base his custody decision solely upon the mother's sexual preference. It was, however, a factor in his decision.

793 So.2d 659


¶ 13. The mother argues that the chancellor should have applied the legal standard used in determining custody modifications rather than the standard used to determine initial custody. Citing Law v. Page, 618 So.2d 96 (Miss.1993), the chancellor held that he was to treat the case as one for initial custody since custody of the child had never been judicially resolved. In Law v. Page, the father of an illegitimate infant boy petitioned the chancery court for a determination of paternity and for custody of the child. The child's mother argued that the chancellor should have applied the standard of law used in custody modification cases and not the standard used in custody determinations incident to divorce. The court rejected the mother's argument, holding:

The "material changes" standard used in modification proceedings is dependent on there being a prior determination of custody. Such is not the case here since there has been no prior custody determination. Therefore the proper standard of law to be applied is that found in divorce proceedings, which is the best interest of the child.

Id. at 101. The court further stated: "[I]n custody dealings involving an illegitimate child, when a father acknowledges the child as his own, the father is deemed on equal footing with the mother as to parental and custodial rights to the child." Id. (citing Smith v. Watson, 425 So.2d 1030 (Miss.1983)).

¶ 14. The chancellor in the case sub judice properly decided the case as one for initial custody, and considered the factors delineated in Albright v. Albright, 437 So.2d 1003 (Miss.1983). This assignment of error is without merit.


¶ 15. This Court does not have the authority to reverse a chancellor's custody determination unless the chancellor is manifestly wrong, clearly erroneous, or applies an erroneous legal standard. Weigand v. Houghton, 730 So.2d 581 (¶ 14) (Miss.1999). We have already held that the chancellor analyzed this case under the correct legal standard. We must now determine whether the chancellor's custody determination was manifestly wrong or clearly erroneous. The mother expressed particular concern that the chancellor gave undue consideration to her impending move to Gulfport and to her homosexual lifestyle without finding that the child had been adversely affected. We find that the chancellor was not manifestly wrong and did not clearly err by awarding custody to the father for the following reasons.

A. The move

¶ 16. The mother argues that the...

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