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Avants v. Hamilton

Court of Appeals of Mississippi

May 7, 2019

BRYAN AVANTS APPELLANT
v.
SHAWN HAMILTON APPELLEE

          DATE OF JUDGMENT: 08/24/2017

          PIKE COUNTY CHANCERY COURT HON. DEBBRA K. HALFORD COURT JUDGE

          ATTORNEY FOR APPELLANT: EDWIN L. BEAN JR.

          ATTORNEY FOR APPELLEE: JASON E. TATE

         EN BANC.

          BARNES, C.J.

         ¶1. Bryan Avants and Shawn Hamilton had a daughter, Jessica, born in 2010.[1] Hamilton also had a sixteen-year-old son from a previous relationship, Bobby, who lived with the family at Avants's home in Summit, Mississippi. On May 5, 2016, Avants was drawing Jessica a bath and doing laundry. He became annoyed because Bobby was playing video games on his cell phone; so Avants asked him to put the phone down. When Bobby did not comply, Avants went to take the phone from him. In an effort to intervene, Hamilton threw a television remote, hitting Avants, and the couple began arguing and tussling with one another. Although it is unclear whether Jessica witnessed the fight, she was upset and crying. Hamilton immediately packed her bags, and she and Bobby left the home. She asked six-year-old Jessica if she wanted to leave as well, but the child opted to remain with Avants after he asked Jessica if she wanted to stay and have milk and cookies. The couple has been separated since that time.

         ¶2. Hamilton filed a petition for temporary and permanent child custody, to establish paternity, and other relief on May 11, 2016. Avants counter-claimed for custody of Jessica and child support. After a hearing on September 12, 2016, the chancery court awarded the parties temporary joint legal and physical custody of Jessica, with alternating weeks of physical custody. Avants voluntarily agreed to pay temporary child support of $400 per month, and the parties were ordered to share the child's extracurricular activity costs equally.

         ¶3. A trial was held on January 12, 2017, and July 20, 2017. The chancery court entered a "Final Judgment of Paternity, Custody and Support," adjudicating Avants as Jessica's natural father. After an analysis of the Albright factors, [2] the chancery court awarded joint legal custody to both parties and primary physical custody to Hamilton, with Avants being awarded visitation on alternating weekends and holidays. The court ordered Avants to pay monthly child support of $550 and to provide health insurance for the child. Avants filed a motion for reconsideration on September 5, 2017, which the chancellor denied. Finding no reversible error, we affirm.

         DISCUSSION

         ¶4. Avants argues that the chancery court erred in awarding primary physical custody to Hamilton. In reviewing a chancery court's award of custody, we will affirm unless the decision was manifestly wrong, clearly erroneous, or the chancery court applied an erroneous legal standard. Baumbach v. Baumbach, 242 So.3d 193, 199 (¶21) (Miss. Ct. App. 2018) (citing Ethridge v Ethridge, 226 So.3d 1261, 1262 (¶5) (Miss. Ct. App. 2017)). However, if the court's decision is not supported by substantial evidence in the record, we will find error. Id.

         ¶5. In Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983), the Mississippi Supreme Court held that "the polestar consideration in child custody cases is the best interest and welfare of the child." In addition to the child's age, the court considers other factors in determining an award of custody:

[the] health[ ] and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school[, ] and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of [the] home environment and employment of each parent[;] and other factors relevant to the parent-child relationship.

Id. Finding several factors favored Hamilton, the court awarded her physical custody of the minor child.[3]

         A. Age of the Child

         ¶6. The chancery court found that this factor slightly favored Hamilton, noting that although Jessica was "no longer an infant," Hamilton had been the child's primary caregiver before the couple's separation. Avants argues the court's finding was in error because Jessica was not a child of tender years. We agree. "A child is no longer of tender years when she can be equally cared for by persons other than the mother." Woodham v. Woodham, 17 So.3d 153, 157 (¶9) (Miss. Ct. App. 2009) (citing Mercier v. Mercier, 717 So.2d 304, 307 (¶15) (Miss. 1998)). In Woodham, this Court upheld a chancery court's determination that a child of four years old was not a child of tender years and that both parents could take care of the child. Id. at 157 (¶10). Here, Jessica was almost seven years old at the time of the trial. There was substantial evidence presented that Avants and Hamilton were equally capable of caring for Jessica. Therefore, we find the chancery court's ruling that this factor favored Hamilton was not supported by the evidence. However, "a child's age is 'but one factor out of many to be considered in a child[-]custody case.'" Davis v. Stevens, 85 So.3d 943, 949 (¶28) (Miss. Ct. App. 2012) (quoting Gutierrez v. Bucci, 827 So.2d 27, 31 (¶17) (Miss. Ct. App. 2002)).

         B.Health and Sex of ...


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