IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-00028-COA JUSTIN BRYCE BROWN APPELLANT

v. KRISTIN FRANKLIN ANSLUM APPELLEE DATE OF JUDGMENT: 12/20/2016 TRIAL JUDGE: HON. DAVID SHOEMAKE COURT FROM W HICH APPEALED: SIMPSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: M. JUDITH BARNETT ATTORNEYS FOR APPELLEE: JEFFREY BIRL RIMES SARAH LINDSEY OTT NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: AFFIRMED - 07/24/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. WESTBROOKS, J., FOR THE COURT: ¶1. This appea l arises f rom a custody dispute between Justin Bry ce Brown and Kristin Franklin Anslum

. Brown appeals the decision of t h e Sim pson County C hancery Court awarding h im and Anslum joint phy sical and legal c u stody o f t heir m inor c h ild. Af ter review of the record, we af

f i rm . FACTS AND PROCEDURAL HISTORY ¶2. Brown and A nslum both lived with K.B. 1 f r om the tim e of her birth until s he was f our

m onths old; however, the two w ere never m arried. They s eparated on August 15, 2013. The

1 T o p ro t ect th e m in o r ch ild ’s co n f id en tiality , w e w i ll ref

er to th e ch i l d th ro u g h o u t th is o p in i o n as “K

. B .”separation spurred f rom an argum ent over f

ree Saints f

ootball gam e tickets Anslum received f rom her boss. B ecause of conf licting stories, the actual events of that night a r e som ewhat unknown. ¶3. Brown contends that he caught Anslum inviti n g a n other m an to the gam e with her because h e told Anslum they could not af f ord to a ttend. Anslum m aintains that she was on the phone with B rown’s m other asking her to baby s it their m i nor child a nd Anslum ’s other child because B rown said h e would not keep t hem e ven i f he stay ed hom e. Anslum alleges that Brown beat her up and hit her o ldest daughter. However, Brown and his parents contend that Anslum knocked her head against the ref rigerator and willf

ully f ell to t he f l oor. Further, they m aintain that Anslum

did not have any

visible bruises af

ter the alleged altercation. ¶4. Af ter t he separation, K

. B

. l i v e d w i t h Anslum f rom August 2013 t o April 2014. In August 2013, Brown f

iled a com

plaint f or d eterm i nation of paternity and sole custody , and Anslum f iled an answer and counter-claim , requesting sole custody of K.B. I n N o v e mber 2013, a tem

porary order was entered awarding Anslum tem porary legal and phy sical custody

s ubject to Brown’s supervised visitation at his p arents’ hom e. However, in J a nua r y 2 0 1 4 , Brown tested positive f

or m etham

phetam ine. As a result, h is r ight to visitation o f K.B. was suspended. Subsequently , h e t ook another d rug test and passed. Then, upon the

recom m endat i on of the Guardian Ad Litem (GAL), the parties agreed t o joint phy sical custody of K.B. ¶5. In both April 2014 and August 2014, Anslum was adm itted to Brentwood Hospital. The f irst incident w as b ecause o f a n a l t ercation between Anslum and her stepm other.

2Anslum alleged that her stepm other tried to choke her, but law e nf orcem ent r eported seeing Anslum g rabbing her own neck. The second incident w a s due t o what was described as an overdose on Valium a f

ter a trip to Pensacola, Florida. It was alleged that A n slum was very intoxicated and could not a dequately care f or her children during the trip. However, Anslum disputes these allegations. ¶6. Brown’s m other, Marcia, had custody of K.B. f rom April 2 014 to August 2014 due to Anslum

having a nervous breakdown and Brown f ailing his drug test. However, in July 2014, the GAL recom m ended that Brown receive the r i ght to f ull c u stody of K.B., subject to Anslum ’s right to visitation every other week. ¶7. In 2016, Anslum ’s doctor gave h er a good report a nd stated that Anslum w as only on

one m e dication at the t im e. 2 Anslum also reported that her m o od, m aturity , and c o g n i t ive abilities h ad im

proved, and t hat her doctor expressed that she had consistently attended her appointm e nts and had im proved signif

icantly

. ¶8. In 2016, B rown was awarded tem porary legal and phy sical custody of the m inor child subject to Anslum ’s visitation rights. By this tim e , however, K.B. had already been living with Brown since August 2014—except when B r o w n ’ s m other k ept K .B. A nslum f iled a petition f or sole custody

of K.B. ¶9. Af ter a three-day trial, th e c h a n c e l l o r a w arded t he parties joint phy sical and legal custody with the parties alternating their regular phy sical c u s t ody of K .B. Brown tim ely

2 B ro w n testif

ied th at h e b eliev ed th a t A n slu m w a s t a k i n g X an ax , A d d erall, T r azo d o n e, H y d ro co d o n e, an d A m b ien

. A n slu m testif

i ed th at at o n e p o in t in tim e sh e h ad b een p rescrib ed D iazep am , S ero q u el, E n alap ril, V aliu m , an d A n ip ry l. H o w ev er, A n slu m m ain t ain s th at alm o st all o f th e p rescrip tio n s req u ired a d o cto r ’s v isit to retriev e th em .

3appeals. STANDARD OF REVIEW

¶10. In Carter v. Escovedo , 175 So. 3 d 5 8 3 , 5 8 5 (¶7) ( Miss. Ct. A pp. 2015), this Court stated:
In child-custody d ecisions, the polestar c o nsideration is the best interest of the child. W e cannot substitute our judgm ent f or t he chan c e l l o r ’ s . Instead, o ur standard of review is quite narrow. W e onl y reverse child-custody determ inations i f the chancellor is m anif e s tly w rong, clearly erred, or applied the wrong legal standard. W hen chancellors p roperly a pply and consider the Albright [3] f

actors, there is no m anif

est error. (Citations om itted). DISCUSSION
I. Whether parties have to ex pressly apply for joint c ustody in order for the chancellor to aw ard joint custody . ¶11. Brown argues that the parties have t o m ake an express “application” asking f or joint custody in order f

or the chancellor to order joint custody

. However, Brown does not cite any authority in f

avor of his argum ent outside of Mississippi C ode Annotated section 93-5-24(2)- (3) (Rev. 2013). This code section states in part: (2) Joint custody m ay be awarded w h ere i r r e c oncilable d if f erences i s the ground f o r divorce, i n the discretion of the court, upon a pplication of both parents. (3) In other cases, joint custody m ay be awarded, in the discretion of the court, upon application of

one or both parents. ¶12. This Court has held that the application of joint custody m a y b e m ade by o ne or both parents i f the arrangem ent is i n the best interest of the child. See Crider v. C r ider , 904 So.

3 A lb rig h t v. A lb rig h t , 4 3 7 S o . 2 d 1 0 0 3 (M iss. 1 9 8 3 )

. 42d 142, 148 (¶16) (Miss. 200 5 )

. As Anslum pointed out in her brief , i n i rreconcilable dif f erences cases the court m ay award joint cu s t o d y when the parties request the court to determ ine custody

. The Mississippi Suprem e Court has held that “ when parties consent in writing to the court’s d e t e r m i n a t ion of custody , they are c o nsenting and agreeing to that determ ination and this m eets the statutory directive of

‘joint application’ in § 93-5-24(2).” Id

. at 148 (¶15). Thus, a m ere r e quest to determ i ne custody s a tisf i es t he “application” requirem ent. Id

. ¶13. Accordingly , we f ind this issue is m eritless.
II. Whether the chancellor im properly analy zed a nd a p p l i ed t he Albright factors. ¶14. Next, B rown argues that the chancellor erred in his a naly sis of t he Albright f actors. Specif ically , Brown a rgues that the c h a n c e l lor erred when weighing the f ollowing seven f actors: (1) age, health, and sex of the child; (2) a determ i nation of the parent who had the continuity of care prior to t h e separation; (3) which [ parent] has the best parenting skills and which [ parent] has t he w illingness a nd capacity to provide prim a ry c hild care; ( 4 ) t h e em ploy m ent of the parent and responsibilities of that em ploy m e nt; (5) phy sical and m e n tal health and a ge of t he par e n t s ; ( 6) m oral f itness of the parents; and (7) other f actors relevant to the parent-child relationship. See Hollon v
. Hollon , 784 So. 2 d 943, 947 (¶12) (Miss. 2001) (citing Albright , 437 So. 2d at 1005). ¶15. “In order to determ i ne whether or not the chancellor w a s m a n i f e s tly wrong, clearly

erroneous or abused his discretion in apply ing the Albright f a c tors, w e review the evidence and testim ony presented at trial under each f actor to ensure his ruling was supported by the

5record.” Id. at (¶13). However, we note that the chancellor has “the ultim ate discretion to

weigh the evidence the way he sees f it.” Johnson v. Gray , 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003). A. Age, Health, and Sex of the Child ¶16. The chancellor f

ound this f

actor to be neutral because K.B.’s age would not pose as

a p r o b l e m f

or transportation. Brown asserts that the chancellor erred b ecause h e did not consider the child’s stability under this f actor. T h i s Court has previously f ound that the chancellor m ay consider the child’s age, health, a n d s e x t o g e t her as a s i ngle f actor or separately

. See Flowers v. Flowers , 90 So. 3d 672, 680 ( ¶30) (Miss. Ct. A p p . 2012).
However , Brown f

ails to c ite any authority that supports broadening this f actor to include stability

. “ [ F ]ailure to cite any authority is a procedural bar, and [ the] reviewing court is under no obligation to c onsider the assignm e nt.” In r e Estate o f F orrest , 165 So. 3d 548, 550 (¶7) (Miss. Ct. App. 2015). ¶17. W e acknowledge that the chanc e l l o r a c t u a l l y c onsidered Anslum ’ s stability when f avoring Brown in the “ stability of the hom e environm ent” f a ctor. Theref

o re, the chancellor did not err in f

inding that this f

actor was neutral, and this issue is m eritless.
B. Continuity of Care Prior to the Separation ¶18. Brown disagrees w ith the chancellor’s d eterm ination t hat the continuity of care f actor was neutral. He d oes not agree that Anslum exercised prim ary care f or approxim ately

two
y ears prior to Brown obtaining phy sical custody of K.B. B rown uses the testim ony of three witnesses to support his argum e nt: (1) his m o ther, Marcia, testif ied that b o t h p a r ties took

6care of the m inor child prior to the separation; (2) Anslum ’s a lleged ex-husband, Josh Cox,

testif i ed a b out his dissatisf

action w ith Anslum ’s perf orm ance as a stay

- at-hom e m other and wif e; and (3) Shirley Franklin, A nslum ’s grandm o ther, testif ied that o thers t ook care of the

m inor child while Anslum was adm itted in Brentwood Hospital. ¶19. The c h a n c e l l o r h a s the a bility to weigh the evidence as h e s e es f it including, “the credibility of t he witnesses and the weight of t heir testim ony , as well as the interpretation of evidence where it i s c a p a b l e o f m ore than one reasonable interpretation

. . . .” Brown v. Crum , 30 So. 3d 1254, 1259 (¶16) (Miss. Ct. App. 2010) ( citing Johnson , 8 59 So. 2d at 1014 (¶36)). ¶20. The chancellor f

ound that there w as evidence that both p arties were a part of K.B.’s lif e, but that Anslum h ad exercised prim ary phy sical care f or approxim ately a y ear or two as

a stay -at-hom e m other. Theref ore, the f actor was neutral, a nd w e f i nd n o error with the chancellor’s f

inding of neutrality

. C. Parenting S

k i lls and the W

illingness and Capacity t o Provide Primary Child Care ¶21. Brown disagrees t hat this f actor f avored him o nly slightly

. The chancellor reasoned

t h a t A n s l u m h a d m atured into a good parent and no incidents were reported in over two
y ears. As stated above, “the c hancellor has the ultim a te discretion to weigh the e vidence the

w a y he sees f

it.” J ohnson , 859 S o. 2d at 1013-14 (¶36). The chancellor chose not to ho l d

m uch weight to the i ncidents or evidence that occurred bef o re or in A ugust 2 014—which he

7had t he discretion to do. 4 Theref ore, w e decline to f

ind that the c hancellor erred in f inding that this f actor f avored Brown slightly

. D. Employment of t h e Parent and Responsibilities of that Employment ¶22. The c hancellor f

ound that this f

actor f a vored Anslum because she was able to stay at hom e with K.B. and h e r other children. J.C. W arrington, Anslum ’s husband, testif ied that Anslum was a good stay -at-hom e m other. However, Brown argues that the chancellor erred because of the p ossibility o f Anslum ’s husband leaving her without any f inancial support. ¶23. “This f

actor appears to be applied in two way s: either to pref er a pa r e n t w h o draws an incom e over one who does n ot, or, m ore of t en, t o pref

e r a p arent who works less or not

at a ll and can t heref

ore spend m ore time w i t h h i s c hildren.” O wens v. O wens , 950 So. 2d 202, 210 (¶26) (Miss. Ct. App. 2006). Although Brown w o u l d have pref erred f or the chancellor to h ave a

pplied the f

actor as t he f

orm er, the chancellor h ad the discretion to view the f actor as the latter. The chancellor chose t o look a t em ploy m ent as tim e away f

rom K.B. However, the chancellor acknowledged that K.B. would b e a ttending school soon, so it did

n o t heavily weigh in Anslum ’s f avor. Theref

ore, we f ind no error in the chancellor’s f indings regarding this issue.

E. Physical and Mental Health and Age of the Parents

4 A t th e c lo se o f th e t r i a l , t h e ch an c ello r ask ed w h eth er th ere w ere an y in cid en ts b etw een A u g u st 2 0 1 4 a n d O cto b er 2 0 , 2 0 1 6 , th at sh o w e d o r illu s trated th at th e C o u rt sh o u ld f in d A n s lu m to b e an u n f

it m o th er. T h e G A L resp o n d ed “n o .” F u rth er, th e ch an cello r ask ed w h eth er th ere w ere a n y ev id e n ce o f i rresp o n sib ility , in c id en ts o f in t o x icatio n , d ru g im p airm en t, o r an y f

ig h ts o r an y

th in g o f t h e lik e . T h e G A L an sw ered in th e n eg ativ e ag ain

. N o o n e b r o u g h t

f o rth an y ad d itio n al ev id en ce to th e co n trary

.

8¶24. The chancellor f ound this f

actor to b e n e u t r a l b e c a u s e t here was no evidence of Anslum ’s instability s ince August 2014. “ E vidence showed that [ Anslum ] has a lif e long problem with depression which is n o w b e ing successf ully treated.” However, Brown disagrees with the chancellor’s f indings. ¶25. The chancellor ne v e r s t a t e d t h a t A n s l u m ’ s problem s were successf ully treated. Rather, the c hancellor noted that they were being successf ully t reated. Brown has

m isinterpreted the chancellor’s words within this f actor. The chancellor could have chosen

to allocate m ore weight to this f actor, b ut again it was wi t h i n t h e chancellor’s discretion. Johnson , 859 So. 2d at 1013-14 (¶36). Moreover, neither the chancellor nor the GAL saw Anslum ’s instabilities early on as a hindrance to her ability to be a f it m other in the f

uture. Accordingly , we f

ind no error.
F. Moral Fitness of the Parents ¶26. The C ourt c oncluded that there was not any evidence to dem onstrate that either party

was unf i t to parent K.B. But, Brown disagrees with the chancellor’s f indings because of Anslum ’s past relationships w i t h me n a nd inability to c ontrol her p ersonal lif e. However, this Court has af

f irm ed a chancellor’s decision when the chancellor f avored a p arent who had issues in the past but c hose to turn his or her lif e around. See W

illiams v. Stockstill , 990 So. 2d 774, 778 (¶17) (Miss. Ct. App. 2008). ¶27. The chancellor stated that both parents had i nstability i n the past, but both had settled down and appeared to have stable m arital relationships. Accordingly , we f ind no error. G. Other Factors Relevant to the Parent-Child Relationship

9¶28. The C ourt weighed the f a ct that K.B. would be able to grow u p with her s iblings in Anslum ’s f

avor. Brown does not believe that this f act that Anslum

had two other children should be a f

actor that w eighs i n her f

avor. This Court has previously held t hat “ there was

no requirem ent that the chancellor specif ically a d dress the question o f s i blings and custody .” C.A.M.F. v. J.B.M. , 972 So. 2d 656, 661 (¶23) (Miss. C t

. A p p . 2007). F urther, it “is n ot a separate A lbright f

actor but a question which the chancellor m ay consider along with the best interest of the child.” I

d

. Theref o re, this is a f

actor that the chancellor has the discretion to weigh as he sees f

it, and we f

ind no error.
III. Guardian Ad Litem Report and Recom m endation ¶29. W h ile Brown did not m en t i o n t h e chancellor’s deviation f r om the GAL report, we think it i s im

portant to n ote that the GAL recom m e nded that K.B.’s phy sical custody rem ain with Brown, and Anslum be given th e s t a n d a rd v isitation that usually is granted to noncustodial parents. However, the chancellor f ound inconsistenci e s b e t ween the GAL’s

recom m endations and h e r testim o ny . The chanc e l l o r n o ted that the GAL voiced concerns about A nslum t aking m edication; h owever, during c r oss exam ination, the G AL adm itted that there had been no incidents involving Anslum that concerned her s i n c e A u gust 2014. Moreover, the chancellor noted that K.B. needed to b e a llowed to contin ue to bond with Anslum

. As a result, the chancellor awarded joint legal and p hy sical c ustody to both Brown and Anslum

. ¶30. W e have previously held that “ o n l y w h e n t h e a p p o i n t me n t o f t he guardian is

m andatory a nd the chancellor disagrees with t he guar d i a n’s report will we r equire the

1 0chancellor to sum m arize the g uardian’s recom m endation and why the chancellor chose to

disregard it.” Tanner v. Tanner , 956 So. 2d 1106, 1109 (¶13) (Miss. Ct. A pp. 2007). The chancellor properly listed and sum m arized the GAL recom m endation and his r e a s on f or deviating. CONCLUSION ¶31. Brown asserts that m ore of the f actors s h o u l d h a v e w e i g h ed i n his f avor. But, the Albright f actors are “not a m athem atical equation.” Hall v. Hall , 1 34 So. 3d 822, 827 (¶19) (Miss. Ct. App. 2 014) ( citing Lee v. L ee , 798 So. 2d 1284, 1288 ( ¶15) ( M i ss. 2001)). Theref ore, “the c hancellor has the ultim ate d iscretion to weigh the evidence the way he sees f it.” Id

. ¶32. Accordingly , we f

ind that the chancellor did not err in awarding Brown and Anslum joint p hy sical and legal custody of K.B. Further, t he c hancellor’s on-the-record analy sis was supported by

substantial evidence. ¶33. AFFIRMED. LEE, C.J., IR V I NG A ND GRIFFIS, P .JJ., BARNES, FAIR, WILSON AND GREENLEE, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY TINDELL, J. CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART: ¶34. I concur with the m ajority ’s f inding that no i ssue exist s a s t o B r o w n’s argum ent regarding the application f or joint custody

. However, I f ind that the evidence in t he record f ails to support the c hancellor’s award of joint custody of K.B. to Brown and Anslum

. Since
I f ind that the chancellor abused his discretion in a warding joint custody , I would theref ore

1 1reverse and rem and.

¶35. I s ubm it that t he chancellor erred in his f indi n g s r e g a r d i ng the f

ollowing Albright 5
f actors, which in turn led to the chancellor’s erroneous award of j o i n t c u s t o dy : continuity of care, parenting skills and willingness to provide prim a ry child care, phy sical and m ental health a nd age of

the parents, and m oral f

itness of the parents. W hen reviewing an appeal of a ch i l d

- c u stody decision, “our polestar consideration, l ike t he chancellor’s, m ust be the best interest of

the child.” O’Briant v. O’Briant , 99 So. 3d 802, 805 (¶12) (Miss. Ct. App. 2012); see also Smith v. Smith , 206 So. 3d 502, 512 (¶24) (Miss. 2016). Upon review, we
cannot substitute o ur judgm ent f o r that of t he c hancellor; rather, “ [ w ]e m a y o n l y reverse a child-custody determ ination if the chancellor [ was] m anif estly wrong, clearly erred, or

a p p lied an erroneous legal standard.” O’Briant , 99 So. 3d at (¶13). “W hen a c h a n c e l l o r properly applies and considers t he child-custody f actors f rom A lbright , . . . no m a n if est error [ exists].” Id

. ¶36. Regarding the f

actor of continuity

of care, the chancellor f

ound “[ t]he continuity of

care is n eutral although t he [ c]ourt recognizes that [ Brown] has exercised p rim ary phy sical

care [ of K.B.] f

or approxim ately a y ear. Bef ore that tim e, [ Anslum ] e x e r cised prim ary phy sical care f

o r approxim a tely t wo y ears.” However, t he record re f lects that Brown’s

m other, Marcia, testif

ied that although both Anslum and Brown acted as K.B’s prim ary care givers while t h e y w e r e s t i ll in a relationship, K.B. had actually “been with [ Brown] the

m ajority of t he t im e” sinc e t h e i r s eparation. Anslum ’s alleged f orm er husband, Josh Cox,

5 A lb rig h t v. A lb rig h t , 4 3 7 S o . 2 d 1 0 0 3 , 1 0 0 5 (M iss. 1 9 8 3 ). 1 2stated that he and Anslum m oved in together a little less t h a n a y e ar af ter she and Brown separated. Cox testif

ied that during this tim e , he of ten had to care f

or the children because Anslum ’s alcohol and substance abuse lef t her unable to provide care. ¶37. The cha n c e l l o r held t hat the parenting skills f actor “f avor the f ather o nly slightly ,” explaining that Anslum m ade bad choices “early on in [ K.B.]’s lif e .” The chancellor opined that “ evidence indicates that [ Anslum ] has since m atured int o a good parent and no such incidents h ave been reported in over two y e ars.” However, as stated, Josh Cox’s testim ony ref lects that Anslum struggled with alcohol and substance abuse issues during t he period of February 2014 until approxim ately May 2014, s howing a lack of s tability

. T h e r e c ord ref lects that at th e t i me o f trial, A nslum still received t reatm ent f or her a nxiety f

rom Dr. Joseph Kwentus, a p s y chiatrist. The record also ref l ects that Anslum had three children by three dif f erent m en a nd that Anslum becam e pregnant by W arrington af ter only knowing h im f ive or six m onths. Based on m y review of the record, this f actor clearly

f avors Brown. ¶38. The chancellor f

ound that t he willingness and capacity to provide child care “f avors [ Anslum ,] who is a stay at h o m e m om .” The c hancellor stated, however, t hat “both parents and their spouses are willing to care f o r [ K.B.] a nd have extended f am ilies who are also willing to step in and help w he n n e e d e d .” The chancellor also s t ated that he considered
W a rrington’s testim ony that “he intends to obtain a larger hom e f or his f ami l y i n order to have m ore space f

or the c hildren.” Brown, however, testif ied at trial that w hen h e and Anslum lived together, he w as the person who generally bathed and dressed K.B. on a daily basis. Brown also stated that during this tim e, he w ould take o f f work a n d care f

o r K.B. as

1 3needed. Brow n t estif ied that h e is currently em ploy ed i n a j ob that provides him with suf f i cient incom e to c are f

or K.B. Brown asserted that his job provides him with the f lexibility to take of

f work and care f

or K.B. if needed. Brown a lso testif i ed that K.B. was “a daddy ’s girl,” and he e x p l ained that the two are very c lose. I theref ore s ubm it that this f actor f avors Brown. ¶39. The chance l l o r h e l d t hat the f actor regarding t he phy sical and m e ntal health of the parents was neutral, explaining that “[ w]hile there is evidence of som e instability

early on, particularly with [ Anslum ], t he t estim ony of t he G AL at trial showed that since August 2014, there have been no f

urther incidents that would indicate that she w ould be an unf it m other

o r t h a t she was continuing in her previous irresponsible behavior. E vidence showed t ha t [A n s l u m ] h a s a l i f

e[ -]long problem with depression which is now being successf ully treated. ” Tri a l t e s t i m ony r ef

lects that prior to August 2014, Anslum suf f ered f rom anxiety and depression and a

bused alcohol a nd controlled substances. Testim ony also ref lects that in the
y ears af ter her separation f

rom Brown, Anslum required treatm ent at Brentwood Hospital on
two occasions, including treatm ent f or a drug overdose in August 2014. Anslum adm itted

at trial t hat she currently takes Valium and Enalapril to treat her anxiety and a panic disorder. The GAL also testif

ied at trial, and set f

orth in h er r eport t o the c h ancellor, a description of

two altercations where Anslum f aked injuries a nd attem

pted to m ake it appear that som eone hurt her. I subm it that the record ref lects that this f

actor f avors B rown and that t h e record f ails to support the chancellor’s f inding of this f a c tor as neutral. ¶40. Regarding the m oral-f itness f actor, the c hancellor s tated that “ [ e]arly on in this case,

1 4it appeared that m oral f itness would have f

avored [ Brown].” The c hancellor acknowledged Anslum ’s prior i nstability but held that “since s h e me t and m arried J.C. W arrington, [ Anslum ] seem s t o have settled down.” The chancellor ultim a t ely c oncluded t hat “there was

no evidence presented that s howed [ A nslum ] to b e m orally unf i t t o b e a m other to [ K.B.]. Neither was there a ny evidence presented that would disqualif y [ B rown] f

rom being m orally f it to parent [ K.B.].” However, a s stated, trial testim ony shows that f or y ears Anslum abused alcohol and controlled substances, and she has even overdosed on drugs on m ore than one occasion s ince her s eparation f rom Brown. A n slum a lso currently suf f ers f rom a nxiety and receives m edical treatm ent. A s stated, the record also ref l ects t hat Anslum had three children by three dif

f erent m en and that Anslum b ecam e pregnant by W arrington af ter only knowing him f ive or six m o nths. The record ref lects that the evidence s hows this f actor clearly f

avors Brown. ¶41. The GAL testif

ied that based on her observations of K.B., both parties, and the hom es of both parties, she recom m ended that B r o w n s h o u ld have perm anent prim ary phy sical custody of K.B. The GAL explained that Brown’s hom e “is stable. It’s a d e q u a t e . T hat’s where she’s been. Bry ce has been stable and h e h as been a ble to provide f

or her. She is in a day care s etting which provides her a routine. It provides her education t o help her to prepare f or what l ies ahead in k i ndergarten and t he r est of her education.” The G AL opined that K.B. “should certainly

have visitation” with Anslum , though. ¶42. Regar d i n g t h e G A L ’s report and recom m endation, the chancellor s et f orth in his judgm ent that h e “m

ust disagree with the conclusions and recom m endations as written.” The

1 5chancellor explained that he f e lt inconsistencies existed between the GAL’s report and her trial testim ony . In acknowle d g i ng the im portance of b onding with o ther siblings, the chancellor also opined t hat h e f elt that the GAL “has not given enough c onsideration to the entire f am ily d y nam ic w hen m a king her recom m endations.” However, upon review of the record, I do not f

i nd the GAL’s report inconsistent with the GAL’s testim ony or lacking in consideration of

the entire f

a m i ly dy nam ic. ¶43. The chancellor also stated that “[ w]hile n ot a d eciding f actor in the [ c]ourt’s decision, it is also noted that [ K.B.] is a y oung f e m ale chi l d a nd should be allowed m ore tim e to continue to bond with her m other.” The record shows that K.B. was born on April 15, 2013, and she was three y e a r s o l d a t t he tim e of trial. Although the chancellor did n ot expressly

nam e the tender-doctrine in his opinion, we recognize that “[ a]ccording to the tender-y ears doctrine, if a child is of s u c h t e n d er age as to require t he m other’s care f o r [ her] phy sical welf are, [ she] should be a warded to the m other’s custody .” M ontgomery v. M

ontgomery , 20 So. 3d 39, 44 (¶22) (Miss. C t. App. 2009) (internal quotation m arks om itted). However, the
suprem e court has held that “the tender y ears doctrine has all but been s ubsum ed i nto the Albright analy s i s.” Lackey v
. Fuller , 755 So. 2d 1083, 1089 (¶30) (Miss. 2000). Now, “the
age o f a c hild is sim

ply one of the f

actors that we consider in determ ining the best interests of the child.” Id

. ¶44. A review of the evidence in the record f ails to support the f

indings of the chancellor and f ails to support the award of joint custody

. Af ter m y review of the record, I f

ind that the chancellor erred in his application of several Albright f actors. I w ould theref

ore reverse the

1 6chancellor’s a w a r d o f joint custody o f K.B. to Brown and A nslum and rem a nd f or f urther proceedings consistent with this opinion. TINDELL, J., JOINS THIS OPINION.

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