OF JUDGMENT: 08/24/2017
COUNTY CHANCERY COURT HON. DEBBRA K. HALFORD COURT JUDGE
ATTORNEY FOR APPELLANT: EDWIN L. BEAN JR.
ATTORNEY FOR APPELLEE: JASON E. TATE
Bryan Avants and Shawn Hamilton had a daughter, Jessica, born
in 2010. 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.
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.
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,  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.
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.
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
Age of the Child
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.
B.Health and Sex of ...