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Shirley v. Whitehead

Court of Appeals of Mississippi

October 15, 2019

MELVIN SHIRLEY JR., A MINOR, BY AND THROUGH HIS NEXT FRIEND AND MOTHER, EVA SHIRLEY APPELLANT
v.
MARCHEYELL WHITEHEAD, A MINOR, BY AND THROUGH HER NEXT FRIEND AND MOTHER, JENNIFER MORGAN APPELLEE

          DATE OF JUDGMENT: 03/16/2018

          LOWNDES COUNTY CHANCERY COURT HON. KENNETH M. BURNS TRIAL JUDGE

          ATTORNEY FOR APPELLANT: GARY GOODWIN

          ATTORNEY FOR APPELLEE: LISA LYNN MEGGS

          BEFORE J. WILSON, P.J., TINDELL AND LAWRENCE, JJ.

          J. WILSON, P.J.

         ¶1. Melvin Shirley Jr. and Marcheyell Whitehead had a daughter, Paisley, in 2014. Shirley and Whitehead were both minors and were not married or dating when Paisley was born. When Paisley was five months old, Whitehead filed a petition for custody, and the chancellor granted her temporary custody with visitation for Shirley. The chancellor also appointed a "best interests" guardian ad litem ("GAL") for Paisley.

         ¶2. The GAL found that the issue of custody was a close call but recommended that the court award physical custody to Shirley. However, after a trial and a thorough Albright analysis, [1] the chancellor granted permanent physical custody to Whitehead with visitation for Shirley. On appeal, Shirley argues that the chancellor's findings are not supported by substantial evidence and that the chancellor abused his discretion by awarding custody to Whitehead. We find no reversible error and affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶3. Whitehead became pregnant with Shirley's child while they were still in high school. She gave birth to their daughter, Paisley, in 2014. When Paisley was born, Whitehead and Shirley were no longer dating. Whitehead and Paisley initially lived with LaRhonda Weatherspoon, a close family friend, in Columbus. Shirley lived with his mother in Columbus when Paisley was born, but he later moved to Jackson to attend Belhaven University, where he was on the football team. Shirley visited Paisley and Whitehead every day during the first few weeks after Paisley's birth, but he visited less often when Whitehead started dating another man. Shirley later left Belhaven and moved back to Columbus, where he found a full-time job and took some online courses.

         ¶4. In September 2014, Whitehead and Paisley moved to Arkansas to live with Whitehead's mother, Jennifer Wallace. About two weeks later, Weatherspoon asked if Paisley could visit her in Columbus. Whitehead agreed, and Weatherspoon drove to Arkansas and returned to Mississippi with Paisley. On October 13, 2014, Weatherspoon enrolled Paisley in a daycare in Columbus.

         ¶5. On October 24, 2014, Shirley attempted to sign Paisley out of daycare. The police were called, but after Shirley showed them a birth certificate identifying him as Paisley's father, he was allowed to leave with her. On October 29, Whitehead filed a petition for custody and other relief and a petition for a writ of habeas corpus. Shirley answered and also sought custody of Paisley.

         ¶6. In December 2014, the chancellor granted Whitehead temporary physical custody of Paisley with specified visitation for Shirley. The chancellor also ordered the parties not to take Paisley out of state without prior court approval. Finally, the chancellor appointed a GAL to investigate and make recommendations regarding Paisley's "best interests."

         ¶7. The GAL interviewed Whitehead and Shirley and their respective mothers. She also reviewed Whitehead's deposition, text messages and Facebook posts, photographs, a video of a fight between Whitehead and another woman, and Paisley's medical records. After her investigation, the GAL prepared a report that included an Albright analysis. The GAL found that two factors favored Whitehead, three factors favored Shirley, and all other factors were neutral. The GAL stated that she was "leaning toward" recommending Shirley as Paisley's custodial parent, but she reserved her final recommendation until after trial. After hearing the evidence at trial, the GAL did not change her recommendation.

         ¶8. A one-day trial on custody was held in August 2017. Whitehead testified that she had moved four times since Paisley's birth. As noted above, she moved to Arkansas to live with her mother in September 2014. She moved back to Columbus the next month due to the dispute over Paisley's custody. Whitehead remained in Columbus until approximately May 2016, when she moved to Texas. ...


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