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BENITA W. CARR v. WILBERT MARCUS CARR

NOVEMBER 13, 1985

BENITA W. CARR
v.
WILBERT MARCUS CARR, JR.



BEFORE PATTERSON, PRATHER AND SULLIVAN

PRATHER, JUSTICE, FOR THE COURT:

The question addressed by this child custody appeal is whether the fact of adultery precludes, per se, the award of custody to the offending spouse. This Court holds that the fact of adultery alone does not disqualify a parent from

custodianship but that the polestar consideration in original custody determinations is the best interest and welfare of the minor child.

 The divorce of Wilbert Marcus Carr, Jr., and Benita W. Carr gives rise to this appeal from the Chancery Court of Washington County. Having found both parents fit parents to have custody of the children, the chancellor found that Mrs. Carr was guilty of adultery and awarded custody to the children's father, Wilbert Carr. Benita W. Carr appeals and assigns the following error:

 The chancellor erred in finding the parties equally fit to have custody of the children and in granting custody to appellee because appellant had been found guilty of adultery.

 Wilbert and Benita Carr were married in January of 1975, and from this marriage two daughters were born, Christen, born in 1976, and Catherine, born in 1978. In addition, Benita Carr had a son by a previous marriage, Dee, born in 1971.

 Benita Carr worked in Greenville as an eligibility worker for the Mississippi State Welfare Department, and Wilbert Carr, known as "Dickie," worked as a licensed realtor in Greenville.

 During mid-1980 Benita Carr met and began to have an adulterous affair with another man, who was also married and had children. She admitted this fact and expressed regret for its occurrence.

 In February, 1983, Dickie Carr filed for a divorce on the grounds of habitual cruel and inhuman treatment and adultery, together with a request for custody of his two daughters and exclusive possession of the marital residence.

 Benita Carr filed a cross-complaint for divorce on the grounds of habitual cruel and inhuman treatment, custody of the two girls, and exclusive use and possession of the marital residence.

 The chancellor in his bench opinion granted a divorce on the ground of adultery to Mr. Carr based upon the admitted testimony of Mrs. Carr and her paramour. As to custody of the children, the chancellor recited the general rule in Mississippi that the parent who is guilty of infidelity is not entitled to the custody of the children of the parties, noting an exception to this general rule being

 when special or exceptional circumstances may justify granting custody to the offending spouse where it is clearly in the best interests of the child. Although finding both parents equally fit to have custody of the children, the court awarded custody of the children to their father "because of the long standing continued adulterous relationship of Mrs. Carr." It was noted in the opinion that the court was "concerned with the overriding issue of what will most effectively enhance the growth and development of the children from a moral, emotional and physical standpoint."

 II.

 Did the chancellor err in finding the parties equally fit to have ...


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