IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-01817-COA CLEONDRA JASMINE CARTER APPELLANT

v. MARIO ROBERT RAMON ESCOVEDO A/K/A MARIO ESCOVEDO APPELLEE

DATE OF JUDGMENT: 10/31/2014 TRIAL JUDGE: HON. VICKI B. DANIELS COURT FROM W HICH APPEALED: DESOTO COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: JERRY W ESLEY HISAW JENNIFER LOUISE MORGAN ATTORNEY FOR APPELLEE: BYRON RUSSELL MOBLEY NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: AW ARDED FATHER CHILD CUSTODY DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 09/29/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., MAX WELL AND FAIR, JJ. MAX WELL, J., FOR THE COURT: ¶1. Cleondra Carte r a p p e a l s t h e chancellor’s grant of child custody to her daughter’s fa t h e r , M a r i o E s c ovedo, along with the am ount of visitation and overnight visitor restrictions.
W e af f irm the chancellor’s grant of sole phy sical and sole legal custody to Escovedo. But because Escovedo concedes Carter is e n t i t l e d to greater visitation, we r everse and rem and that award. On rem and, the chancellor should grant Carter m ore visitation. Facts and Procedural History ¶2. On Novem

ber 29, 2010, C arter and Escovedo had a daughter out of w e d lock, Ky leeSue E scovedo. Carter appeared on MTV’s show “Sixteen and P regnant,” whil e s h e w a s

pregnant with Ky lee. A nd she w as seventeen y e ars old when Ky l ee w a s born. For the f irst f ew y ears of Ky lee’s l if

e, Carter and Escovedo lived together. T he c ouple then split up and began f ighting over Ky lee. ¶3. On February

26, 2014, Escovedo f

iled a com

plaint f or child custody . And an order

was e ntered granting Escovedo s ole legal and phy s ical custody , subject to Carter’s visitation rights. Carter was awarded visitation every other weekend f rom Friday night to Sunday night and also received two weeks during the s um m er. Every y ear she got Ky lee f or three hours

on her birthday and three hours on Ky lee’s birthday , and o n Mother’s Day

. Every other y ear K y l e e was to visit her on New Year’s Day , E aster, Mem o rial Day , July 4th, Labor D a y , Thanksgiving, and Christm as. ¶4. The order also directed that Carter “shall have such other reasonable visitation

. . . as

can be m utuall y a g r eed upon by the parties.” But there was o ne s pecif i c restriction that Carter d isputes on appeal. The c hancellor prohibited “overnight visitors of the opposite sex (or of an intim ate nature) unless related by b lood or m arriage” while Ky lee was w ith Carter or Escovedo. ¶5. Carter appealed the chancellor’s order. Discussion
I. Child Custody ¶6. On appe a l , C a r t e r i n s i s t s the chancellor i m p roperly weighed t he evidence in her

2Albright analy sis. 1 Carter b elieves the evidence should h ave been interpreted dif f erently and weighed f

avorably toward her. But “ Albright [ is] a guide, n ot a f orm ula[

. ]” O’Briant v. O’Briant , 99 So. 3d 802, 805 (¶14) (Miss. Ct. App. 2012). W hen a chancellor i s m aking a custody decision, s he m ay “weigh the evidence as she sees f it[ .]” Id. Because the chancellor thoroughly

addressed the A lbright f

actors, w eighing the e v idence as she saw it, we f ind no reversible error.

A. Standard of Review ¶7. In c hild-custody decisions, the polestar consideration is the best interest of the child. Montgomery v. Montgomery , 20 So. 3d 39, 42 (¶9) (Miss. Ct. App. 2009) (citing H ensarling

v. H ensarling , 8 24 S o. 2d 583, 5 87 (¶8) (Miss. 2002)). W e cannot substitute our j udgm ent f o r t h e c hancellor’s. Id. Instead, our standard of review is quite narrow. Id. W e o n l y

reverse child-custody determ i nations if the chancellor is m anif estly wrong, clearly erred, or applied the wrong legal standard. Id. W hen chancellors properly a p p ly and consider the Albright custody f

actors, there is no m anif

es t e r r o r . S

mith v. S mith , 614 So. 2 d 394, 397 (Miss. 1993).
B. Albright Factors ¶8. In dec i d i n g c hild-custody cases, chancellors m ust apply the Albright f

actors. This requires the chancellor to consider and m ake f indings about: (1) [ the] age, health, and sex of the child;

1 Albright v. Albright , 437 So. 2d 1003, 1005 (Miss. 1983). 3(2) [ which] parent . . . had the continuity of care prior to the separation; (3) which has the best p arenting skills and which has the willingness and capacity to provide prim a ry child care; (4) the e m

p loy m ent of the parents and responsibilities of that em ploy m ent; (5) phy sical and m ental health and age of the parents; (6) em otional ties of

parent and child; (7) m o ral f

i tness of the parents; (8) the hom e, school and com m unity record of

the child; (9) the pref

erence of the child at the age s uf f icient to express a pref

erence by law; (10) [ the] stability of [ t he ] h o me e n v i r o n me n t and e m ploy m ent of each parent and other f

actors relevant to the parent-child relationship.
Lee v. Lee , 798 So. 2d 1284, 1 2 8 8 ( ¶ 1 5) (Miss. 2001) (citing Albright v. Albright , 437 So. 2d 1003, 1005 (Miss. 1983)).

C. Chancellor’s Albright A naly s is ¶9. The chancellor m a de f indings on each Albright f actor. W e review these f

indings in
turn.
i. Age, Health, and Sex of the Child ¶10. K y l e e w a s a “ h e althy child with the exception of the anxiety issues,” whic h t h e chancellor f

ound were caused by

the parents’ split. This f a c tor f avored neither parent. ¶11. Ky lee was alm ost f our at trial—a f

actor the chancellor deem ed neutral. Still, Carter f eels Ky lee’s a ge f

avored her. She cites the t ender-y e ars doctrine, arguing “ if the m other of
4a child of tender y ears (i.e.[ ,] early in developm ent) is f it, then s h e should have custody .”
Lee , 798 So. 2d at 1289 (¶17). But our suprem e court has “ signif icantly weakened the once strong presum

ption that a m other is generally best suited to raise a y oung c h ild.” Id

. Now,

our hig h c ourt sees age and sex of the child a s “m erely f actors t o be considered under Albright [ .]” Id

. ii. Continuity of Care Prior to the Separation ¶12. W h ile each parent claim ed t o spend the m ost tim e with Ky lee, Escovedo worked m ore than Carter. So based o n m ere tim e spent together, Carter was probably with Ky lee m ore. But a f ter h earing Escovedo’s “witnesses testif y about t he things he did and the c a re that he had” f or Ky lee, the chancellor determ ined conti n u i t y o f care was a “close call.” One she f ound f avored neither parent. ¶13. Carter saw herself a s a stay -at-hom e m o m when the three lived together—a f actor she claim ed f a vored her. However, Carter wa s a l s o i n s c hool then, and E scovedo’s m om and sis t e r f r e quently kept K

y lee t oo. W e f

ind substantial evidence s upports the chancellor’s neutral treatm ent of

this f actor.
iii. Best Parenting Skills, and W illingness a nd Capacity t o Provide Primary Child Care ¶14. As to parenting skills, t h e c h a n c e l l o r f ound Escovedo wanted to teach Ky lee discipline and responsibility

. E scovedo was “looking at the big picture,” p utting Ky lee’s interests “f irst and f orem ost above h is own,” and was “ willing to d o w hatever it takes” to p arent Ky lee,

even if it m eant “com m

unicating with the m other who he does not get along with any m ore.”
5To the c hancellor, E scovedo’ s willingness to work with Carter spoke “volum es” f or his
“m aturity and parenting skills.” She f ound this f

actor f avored Escovedo. ¶15. Both parents expressed willingness to provide prim ary c h ildcare. And the chancellor f ound both had the capacity , so she f ound this f

actor was neutral. ¶16. Again, Carter hoped to have been f avored—this tim e as having the better parenting skills. But her argum ent is based on the weight the chancellor a ssigned c e rtain f acts. This is s om ething appellate courts do n ot tam p er with, s i n ce it is s olely the chancellor’s role to weigh evidence a nd judge w itness credibility

. Love v. Love , 74 So. 3 d 928, 933 ( ¶22) (Miss. Ct. App. 2011).
iv. E m p l o y m e n t o f E a c h P a r e n t a n d Responsibilit i e s o f t h a t Employment ¶17. Both parents’ em

ploy m ent allowed them to spend tim e w ith Ky lee. W hile Escovedo worked m ore hours, he arranged f or childcare while at work and m a intained he could alter his schedule if needed. C arter was a waitress, working about three nights a week. She too said she could rearrange h er schedule if necessary a nd had backup childcare with her sister. This f actor was neutral. 2

v. Physical and Mental Health and Age of the Parents ¶18. Both parents are y oung and in good phy sical and m e ntal health. This f actor was also deem ed neutral. Carter does not challenge this f inding.

2 Though Carter claim s t he chancellor f ound this f

actor f a vored E s c o v e d o , we note that the chancellor actually f ound this f

actor was equal. 6vi. Emotional Ties of the Parent and Child

¶19. “[ I]t was very obvious” t o the chancellor t hat both parents “love [ Ky lee] very m uch.” The chancellor also f

elt Ky lee “is very attached to both [ parents].” But the chancellor was sway ed som ewhat by t he “em o tion” she saw f rom E s c o v e do. So she f ound this f

actor f avored Escovedo slightly

. ¶20. Though C arter is upset with the w e i g h t given to Escovedo’s em o tions while testif y ing, the weight and interpretation of evidence w as f o r the chancellor to decide. Johnson v. Gray , 859 So. 2d 1006, 1014 (¶36) (Miss. 2003) (citing Chamblee v. Chamblee , 637 So. 2d 850, 860 (Miss. 1994)).
vii. Moral Fitness of the Parents ¶21. The chanc e l l o r d i d n o t harp on this f actor m uch since the p arties had Ky lee out of wedlock. And both parents were i nvolved in other “rom antic relationships.” The chancellor

was, however, concerned Carter was “brin g i n g a l o t of dif f erent m en around [ Ky lee] or sleeping with m e n with [ Ky lee] in the sam e bed.” These m en were neither Ky lee’s f ather nor

m arried to Carter. Even Carter adm itted she h ad slept with m en in the sam e bed w ith Ky lee. The chancellor f

ound this f

actor f avored Escovedo. ¶22. C a r t e r c l a i ms t h e c h a n c e l l o r s h o u l d h a v e c o nsidered Escovedo’s prior d r u g conviction—an of

f ense that occurred bef

ore Ky l e e w a s b orn. W hile this conviction was

som ething the chancellor was f ree to weigh against Escovedo, we d o n o t f i n d the chancellor’s om i ssion of this c onviction f rom h er Albright analy sis necessarily underm ines

7her f

itness-b a s e d f

i n dings. See McDonald v. McDonald , 39 So. 3d 868, 882 (¶44) (Miss. 2010) (f ather’s nine-y ear-old d r u g c onviction prior to the children’s births did not weigh heavily against him

since he was no longer using drugs and had m a tured). In other words, on these f acts, we cannot say the chancellor m anif e stly erred in this f

inding.
viii. Home, School, and Community Record of the Child ¶23. Ky lee was too y oung to have a school record. But the chancellor d id em phasize Ky lee

was very involved with both parents’ f am ilies a n d Escovedo’s m om and s ister cared f or her of ten—including taking Ky lee to chu r c h

. B ecause Escovedo’s f am ily was so involved in Ky lee’s lif

e, this f actor f avored Escovedo. ¶24. Though Carter claim s the c hancellor ignored that her f am ily also cares f

or Ky lee, the

r ecord shows the chancellor did indeed consider Ky l ee’s involvem ent in both extende d f am ilies.
ix. Preference of the Child ¶25. This f

actor i s inapplicable s ince K y lee w as only three when t he Albright analy sis was conducted. 3

x. Stability of t he Home Environment a nd Employmen t o f Each Parent ¶26. These f

actors f avored Escovedo. Carter argues the “stability of em ploy m ent” f a ctor

3 “Under Mississippi law, a child under the age of twelve is too y oung to have [ his or her] pref

erence considered.” Mixon v. Sharp , 853 So. 2 d 834, 840 (¶29) (Miss. Ct. App. 2003). 8should have f a v o r e d h e r. Yet it is Escovedo w ho has worked f or the sam e com

pany since Ky lee was born, while Carter has been through f o u r d if f erent jobs ( Applebee’s, Delta Technical College, V alvoline, and Avon). Escovedo has lived in the sam e hom e f or both his and Ky lee’s entire lives. And he w as in the p rocess o f purchasing the hom e f rom his f ather. On t he other hand, Carter lived in a one-bedroom apartm ent at the tim e of trial. Bef ore that, she had lived w ith her cousin f o r a f ew m onths, m oved in with her m o ther, and then lived with Escovedo.
xi. Other Factors ¶27. Ultim ately , t he chancellor f ound E s c o v e d o ’ s w i l lingness to work with Carter and

c o mmu n i c a te with her weighed in his f avor. The chancellor was also i m pressed wit h Escovedo’s ability

to put Ky lee f

irst in his decision m aking.
D. Conclusion ¶28. We f

i n d t h e chancellor p roperly a pplied and considered the Albright f actors. Se e Smith , 6 14 So. 2d at 397 (there is no m anif est error where a chancellor properly a pplies and considers the Albright f

actors). Our na r r o w review requires we give def erence to the chancellor’s f

actual f i ndings, if they were supported by substantial evidence. See W ilson v. W ilson , 53 So. 3d 865, 867-68 (¶¶7, 10) (Miss. Ct. App. 2011). “‘[ T]he chancellor has the ultim ate discretion to weigh the evidence t he way she sees f it’ in d eterm ining where the child’s best interest lies.” Blakely v. Blakely , 88 So. 3d 798, 803 (¶17) (Miss. Ct. App. 2012) (quoting Johnson , 859 So. 2d at 1013-14 (¶36)). A n d here, we f ind the chancellor’s f

actual

9f

indings w ere supported by substantial evidence. Sim ply p ut, the judge had the prerogative
to weigh the evidence as s he s a w f i t

. We a f f irm t he g rant of s ole phy sical and sole legal custody of Ky lee to Escovedo.
II. Visitation ¶29. Carter com

plains that the cha n c e l l o r d i d not award h er enough visitation. She was only given two weeks of sum m er visitation and wants a t least f i ve weeks during the sum m er. Escovedo “concedes this issue” and agrees C arter should have been awarded m o re visitation. Since both parties are in agreem ent, we reverse the am ount of visitation awarded and rem and
t h e c a se to the chancellor to award m ore visitation to Carter. See W ackenhut Cor

p
. v
. Fortune , 87 So. 3d 1083, 1088 ( ¶ 11) (Miss. Ct. App. 2012) ( where a party concedes an issue raised on appeal, rem and is proper). ¶30. On rem and, the chancellor shall award a t least f ive weeks of sum m er v i s i t ation to Carter. See Crowson v
. M o s e l e y , 480 So. 2 d 1150, 1153 (Miss. 1985) (“[ C]hildren at the least are entitled t o the com pany of their m other t wo f ull week[ ]ends a m onth during the school y e ar, with the v isitation to term inate late S unday af t ernoon as o pposed to Sunday

m orning, and a f

ive-week period during sum m er vacation.”). S ince C a r t e r u sually works weekends, on rem a nd, the chancellor shall also revisit w hether m o re tim e should be awarded Carter during the week and if m ore holiday

tim e should be awarded.
III. Overnight Guest Restrictions ¶31. Carter’s f

i nal com plaint is that the chance l l o r ’s order restricted overnight rom antic

10visitors. A s the chancellor phrased it, there “shall be no overnight visitors of t h e o p p o s ite

sex (or of an intim ate nature) unless related by blood or m arriage while t he child is present.” Carter believes this is too restrictive since t here w as no evidence the pro h i bition was necessary . W e disagree. The Child’s Best Interests Are Param ount ¶32. “Visitation s hould be set up with the best interests of the children as the param ount consideration, keeping in m ind the rights of the non-custodial parent and the o bjective that parent and child should have as close and loving a relationship as possible, despite the f act
t h a t they m ay not live i n the sam e house.” D unn v. D unn , 609 So. 2d 1277, 1286 ( M i s s . 1992) (citing Clark v
. Myrick , 523 So. 2d 79, 8 3 (Miss. 1988)). This i s why “[ v]isitation and restrictions placed upon it are within the discretion of the chancery

court.” Id. ¶33. Our suprem e court has held “an extram arital relati o n s h i p i s not, per se, an adverse circum stance.” Id. (quoting M orrow v. Morrow , 591 So. 2d 829, 833 (Miss. 1991)); Ballard

v. Ballard , 434 So. 2d 1357, 1360 (Miss. 1983). So to r estrict v isitation of o vernight guests of the opposite sex, there m ust be “som ething approaching actual danger or o ther substantial detriment to the children .” Id

. (em phasis added) (quoting Cox v. Mo ulds , 490 So. 2d 866, 868 (Miss. 1986)). Indeed, restrictions should be im posed when circum stances p resent “an appreciable danger of h azard cognizable i n our law.” Id

. (quoting Newsom v. Newsom , 557 S o . 2d 511, 517 (Miss. 1990)). If the presence of a lover would be d etrim ental to a c h i l d , restrictions m ay

be appropriate. Id

.

11¶34. The chancellor was concerned Carter was “ b r i n g i n g a l o t of dif f erent m en around [ Ky lee] or sleeping with m en with [ Ky lee] in the sam e bed.” Carter lived in a one-bedroom apartm ent and adm itted s he had a llowed m e n to sleep in the bed with both he r a n d Ky lee. Of particular concern was one of Carter’s boy f riends, Michael. ¶35. W e ndy W ard, Ky lee’s therapist, t e s t i fi e d t h a t Ky lee suf

f e red f r om anxiety

. And Ky lee had c o n f ided in W ard that she was scared of M ichael. W ard testif ied that Ky lee f

eared Michael when he “was m ean.” According to Ky lee, Carter and Michael had f ought in f ront of her, and M ichael “m ade h er f eel scared a nd m ad.” Because of Ky l ee’s anxiety over this boy f riend, W a rd r ecom m ended neither party should have “ rom antic relationships spending the night when Ky lee is present.” ¶36. W h ile we recognize our suprem e court has n ot condoned p er se visitation restrictions of overnight guests of the opposite sex, it is clear that such r estrictions are in f act necessary when justif

i ed. And here, m

uch of the chancellor’s f

o cus honed in on her duty to look out f or the best interests of a then three-y ear-old girl. Based on Carter’s a d mi s s i o n of sharing her bed with Ky l ee and overnight r om a ntic guests, and the t herapist’s testim ony that Carter’s b o y f riend’s presence w as d e trim ental to K y lee, we f

i nd the chancellor tailored t h i s prohibition to m inim ize the detrim ent to Ky lee. W e thus f ind the chancellor did not abuse her discretion in prohibiting overnight nonf a m i lial o pposite-sex guests when Ky lee is present. ¶37. T H E J U D G M E N T O F T H E DESOTO COUNTY CHANCERY COURT I S AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. A LL COSTS
12O F T H I S A P P E A L A R E A S SES S E D E Q U A L L Y B E T W E E N T H E A P P E L L A N T A N D

THE APPELLEE. LEE, C .J., I R

V I N G A N D G R I F F I S , P . J J . , B A R N E S , I S H E E , CARLTON, FAIR, JAMES AND WILSON, JJ., CONCUR.

13