IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-CA-00568-COA
MELVIN SHIRLEY JR., A MINOR, BY AND APPELLANT THROUGH HIS NEXT FRIEND AND MOTHER, EVA SHIRLEY
v.
MARCHEYELL WHITEHEAD, A MINOR, BY APPELLEE AND THROUGH HER NEXT FRIEND AND MOTHER, JENNIFER MORGAN
DATE OF JUDGMENT: 03/16/2018 TRIAL JUDGE: HON. KENNETH M. BURNS COURT FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: GARY GOODWIN ATTORNEY FOR APPELLEE: LISA LYNN MEGGS NATURE OF THE CASE: CIVIL - CUSTODY DISPOSITION: AFFIRMED - 10/15/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE J. WILSON, P.J., TINDELL AND LAWRENCE, JJ.
J. WILSON, P.J., FOR THE COURT:
¶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
1 See Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).
2 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. Around November 2016, she moved to Gautier,
3 Mississippi, to live with her mother, who had relocated there.
¶9. At the time of trial, Whitehead was living in a three-bedroom apartment in Gautier
with Paisley and her son from another relationship. She was working the night shift at the
front desk of a hotel while also taking classes at Virginia College in Biloxi. Paisley was in
daycare while Whitehead was in school. Whitehead’s mother kept Paisley when Whitehead
worked at night.
¶10. Whitehead admitted that there was a five-month period beginning around November
2016, when she did not allow Shirley to see Paisley. Whitehead testified that she withheld
visitation because Shirley was allowing a woman who had allegedly assaulted her to spend
time with Paisley.2 Whitehead admitted at trial that she was wrong to withhold visitation.
¶11. Whitehead’s mother (Wallace) testified that she keeps Paisley when Whitehead has
to work at night. Wallace lives near Whitehead, and she testified that Whitehead is a good
mother and takes good care of her children while working and going to school.
¶12. At the time of trial, Shirley was living with his mother in Columbus and working full-
time. He claimed that he had been unable to continue college in Jackson because of the
custody dispute. His current job required him to travel four days per week, but he testified
that he was about to get a new job as a correctional officer at the Lowndes County Detention
Center, which would not require him to travel. He testified that he took care of Paisley when
she was with him and that he loved spending time with her. He testified that they play, read
2 The woman and Whitehead had been close friends in the past, but their friendship deteriorated to the point that they got into a physical fight in front of Paisley while Whitehead was pregnant with her son. Whitehead required medical attention due to her high-risk pregnancy and the fight. The chancellor reviewed a video of the fight.
4 books, and spend time with his family. He is close with friends and family in the area and
takes Paisley to church regularly. Shirley believed that he would be a better custodial parent
for Paisley because he would spend more time with her and provide better care. He testified
that he intends to get his own apartment once he has saved enough money.
¶13. Shirley criticized Whitehead for keeping Paisley from him. He also alleged that
Whitehead had not done a good job of providing or caring for Paisley. He testified that
Paisley had gotten a staph infection and that Whitehead had not provided proper treatment
for it. In her testimony, Whitehead acknowledged that Paisley had a staph infection in the
past, but she denied that she had neglected Paisley or failed to treat the infection. Whitehead
also testified that Paisley was clean and that she took good care of her.
¶14. Shirley’s mother, Eva, testified that Shirley was a family-oriented person and spent
as much time as possible with Paisley. Eva said that Paisley would benefit from a close-knit
extended family in the Columbus area. Eva testified that Shirley had come home from
Belhaven every weekend that he could to see Paisley. Eva testified that Shirley played with
Paisley and took full responsibility for her care whenever he had visitation. She said Shirley
was a good father and would take good care of Paisley.
¶15. Eva expressed concerns that Whitehead was not doing everything that she could to
keep Paisley clean and healthy. Eva testified about an incident when Whitehead called to tell
her that she had taken Paisley to the emergency room for a staph infection and was on her
way to the drugstore for a prescription medicine. When Eva met Whitehead at the drugstore,
Whitehead discovered that Paisley’s Medicaid registration had expired. Eva then paid for
5 the prescription, and she took Paisley home to help treat the staph infection. Eva testified
that she took photographs of Paisley that night because she did not appear to have been
bathed and her clothes were dirty.
¶16. After the hearing, the chancellor entered an opinion and final judgment granting joint
legal custody to Whitehead and Shirley, physical custody to Whitehead, and specified
visitation to Shirley. The chancellor found that three Albright factors favored Shirley, two
favored Whitehead, and all other factors were neutral. The chancellor also found that two
“other factors” were relevant under Albright: that Paisley loved her younger half-brother
(Whitehead’s son), who also lived with Whitehead, and that Whitehead had violated a prior
court order by removing Paisley from the state and withholding visitation. The chancellor
explained that he disagreed with the GAL’s custody recommendation because Paisley had
been with Whitehead her entire life, because Whitehead appeared to have matured, and
because he was reluctant to separate Paisley from her half-brother.
ANALYSIS
¶17. On appeal, Shirley argues that the chancellor’s findings regarding several Albright
factors are not supported by substantial evidence, that the chancellor failed to address the
primary basis of the GAL’s recommendation, and that the chancellor’s custody decision was
an abuse of discretion.3
3 Whitehead failed to file a brief on appeal. Instead, her attorney submitted a letter advising the Court that Whitehead could not afford to pay for a brief. In some cases, this could be taken as a confession of error, but when “child custody is at issue, the Court is compelled to review the record, despite a failure to file a brief by [the appellee].” Muhammad v. Muhammad, 622 So. 2d 1239, 1243 (Miss. 1993).
6 ¶18. “A chancellor’s custody decision will be reversed only if it was manifestly wrong or
clearly erroneous, or if the chancellor applied an erroneous legal standard.” Smith v. Smith,
97 So. 3d 43, 46 (¶7) (Miss. 2012). “[T]his Court cannot reweigh the evidence and must
defer to the chancellor’s findings of the facts, so long as they are supported by substantial
evidence.” Hall v. Hall, 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014). The relevant
question is whether the chancellor’s decision is supported by the evidence, not whether we
agree with it. Hammers v. Hammers, 890 So. 2d 944, 950 (¶14) (Miss. Ct. App. 2004).
¶19. In child custody cases, the “polestar consideration . . . is the best interest and welfare
of the child.” Albright, 437 So. 2d at 1005. In determining where the child’s best interest
lies, the chancellor should consider the following factors: (1) age, health, and sex of the
child; (2) which parent had “continuity of care prior to the separation”; (3) parenting skills;
(4) willingness and capacity to provide primary child care; (5) both parents’ employment
responsibilities; (6) physical and mental health and age of the parents; (7) emotional ties
between parent and child; (8) moral fitness; (9) “the home, school and community records
of the child”; (10) the child’s preference, if the child is at least twelve years old; (11) the
stability of the home environment and employment of each parent; and (12) any “other
factors relevant to the parent-child relationship” or the child’s best interest. Id.
¶20. Albright does not require the chancellor to award custody to the parent who “wins”
the most factors. Blakely v. Blakely, 88 So. 3d 798, 803 (¶17) (Miss. Ct. App. 2012). “The
point of Albright is to identify the custody arrangement that would be in the child’s best
interest—not to determine what is in either parent’s best interest or which parent is the better
7 person.” Vassar v. Vassar, 228 So. 3d 367, 375 (¶26) (Miss. Ct. App. 2017). In addition,
the chancellor is not required to find that each factor favors one parent or the other. Harden
v. Scarborough, 240 So. 3d 1246, 1251 (¶11) (Miss. Ct. App. 2018). The chancellor is only
required to consider each factor that is applicable to the case and determine what custody
arrangement would be in the child’s best interest. Id. “We review the chancellor’s
application of the factors for manifest error, giving deference to the weight that he assigned
each factor.” Id.
¶21. Shirley argues that the chancellor erred in his consideration of six of the twelve
Albright factors and the two additional factors the chancellor considered. We will address
each challenged factor in turn.
¶22. Age, Health, and Sex of the Child. The chancellor found that “[t]his factor slightly
favor[ed]” Shirley because the evidence indicated that Paisley’s health issues arose while she
was in Whitehead’s care. Shirley argues that this should have been given more weight
because Paisley’s health issues were attributable to “neglect or inattention” on the part of
Whitehead. However, we do not reweigh the evidence or the significance that the chancellor
assigns to each factor. Harden, 240 So. 3d at 1251 (¶11). There was also testimony that
Whitehead was a good and attentive mother, and we cannot say that the chancellor clearly
erred or abused his discretion by finding that this factor only slightly favored Shirley.
¶23. Continuity of Care. The chancellor found that this factor favored Whitehead because
Paisley had lived with Whitehead for nearly her entire life. Shirley complains that Whitehead
withheld visitation for a period of time, and he argues that he provides “more productive”
8 care than Whitehead. However, there is no dispute that Paisley has always lived primarily
with Whitehead, and we cannot say the chancellor clearly erred or abused his discretion in
finding that this factor favored Whitehead.
¶24. Parenting Skills and Willingness and Capacity to Provide Child Care. The
chancellor found that this factor slightly favored Shirley.4 The chancellor found that
although both parents relied in part on others for childcare, both parents desired to be
Paisley’s primary caregiver. The chancellor acknowledged that Shirley and Eva both
“expressed serious concerns” about Whitehead’s alleged inattention to Paisley’s medical
needs. The chancellor also acknowledged that when Paisley was an infant, she alternated
weekends between Shirley and Weatherspoon’s mother, Vicky Lee. However, Whitehead
denied that Paisley stayed with Lee because she (Whitehead) did not want to care for her, and
that arrangement had ended two years before trial anyway.
¶25. On appeal, Shirley argues that this factor should have favored him “overwhelmingly,”
not just “slightly,” as the chancellor found. However, as stated above, there was also
testimony that Whitehead is a good, attentive, and committed mother. In light of that
testimony, the chancellor did not clearly err or abuse his discretion by finding that this factor
only “slightly” favored Shirley.
¶26. Moral Fitness. The chancellor found that this factor favored Shirley, but he also
found that both parents had “matured” and were “now morally fit to care for Paisley.” The
chancellor noted that each party made allegations about the other’s moral fitness. On appeal,
4 The chancellor combined the parenting skills factor and the willingness and capacity to provide child care factors.
9 Shirley argues that the chancellor’s finding that Whitehead had matured and was now
morally fit to raise Paisley is not supported by substantial evidence. Specifically, Shirley
contends that the chancellor should not have credited Whitehead’s testimony or Wallace’s
testimony because it was “self-serving.” Shirley further argues that this factor should have
been “given great weight” in his favor. These arguments are without merit. The “power”
to “judge[] the credibility of the witnesses” “lies with [the chancellor] alone.” Irle v. Foster,
175 So. 3d 1232, 1237 (¶32) (Miss. 2015). Moreover, even after finding that Whitehead had
matured, the chancellor still found that this factor favored Shirley—just not as much as
Shirley would have liked. We find no clear error or abuse of discretion in the chancellor’s
application of this factor. Harden, 240 So. 3d at 1251 (¶11).
¶27. Home, School, and Community Record. The chancellor found that this factor
favored Whitehead because Paisley had begun attending preschool in Gautier. He also noted
that Paisley’s maternal grandmother and step-grandfather lived nearby. Shirley argues that
this factor should have favored him based on the GAL’s report. The GAL found that Shirley
had a large and supportive extended family in the Columbus area and that Paisley would have
a “very different” life with Shirley in Columbus. However, we cannot say that the chancellor
clearly erred or abused his discretion by assigning some weight to the fact that Paisley had
begun preschool in Gautier.
¶28. Stability of Home Environment and Employment of Each Parent. The chancellor
found this factor to be neutral. Shirley argues that the factor should have favored him
because he has lived with his mother and maintained employment since leaving Belhaven.
10 Shirley says that he has demonstrated “a desire for advancement.” Shirley argues that
Whitehead, in contrast, has moved several times, “is dependent on government assistance,”
and works at a job that can “only be described as entry level for personal services.” These
arguments are all without merit. Whitehead has her own apartment and is employed while
also attending school. The chancellor did not clearly err or abuse his discretion by finding
that this factor was neutral.
¶29. Other Factors. As noted above, the chancellor considered two other factors in his
Albright analysis: (1) Paisley loves her half-brother (Whitehead’s son); and (2) Whitehead
violated prior court orders by removing Paisley from the state and withholding visitation.
The chancellor found that the first factor favored Whitehead, but he did not specifically state
how he weighed the second factor. The chancellor did indicate that Whitehead’s violation
of prior court orders was at least partially attributable to her youth and immaturity.
¶30. Shirley argues that there was no substantial evidence to support the chancellor’s
consideration of Paisley’s half-brother. He argues that the evidence only showed “a normal
sibling relationship” and that Paisley “would adjust to any separation.” However, Whitehead
testified that Paisley was very close to her little brother, and the GAL also acknowledged that
this factor favored Whitehead. “[T]his is a factor that the chancellor has the discretion to
weigh as he sees fit” as part of his Albright analysis. Brown v. Anslum, 270 So. 3d 69, 75
(¶28) (Miss. Ct. App. 2018). The chancellor did not clearly err or abuse his discretion by
considering the relationship between Paisley and her half-brother.
¶31. Shirley also argues that the Whitehead’s violation of court orders should have been
11 weighed in his favor, and he argues that the chancellor erred by attributing some of
Whitehead’s conduct to her youth and immaturity. However, there is no rule that violations
of court orders must be given any particular weight in an Albright analysis. Cf. Ash v. Ash,
622 So. 2d 1264, 1266 (Miss. 1993) (reasoning that chancellor should punish contempt
directly rather than resorting to a modification of custody). We find no abuse of discretion
in the chancellor’s consideration of this issue.
¶32. GAL Report. Shirley also complains that the chancellor did not address a factor that
the GAL found significant: that Shirley has a supportive family in Lowndes County,
including a mother who would be a good role model for Paisley. This argument is also
without merit. When the appointment of a GAL is required by law because there are
allegations of abuse or neglect, the chancellor’s findings must include reasons for rejecting
the GAL’s recommendations. Floyd v. Floyd, 949 So. 2d 26, 28-29 (¶¶7-8) (Miss. 2007).
However, when the appointment of a GAL is discretionary, the chancellor is not required to
detail the reasons for his disagreement with the GAL’s recommendation. Kaiser v. Kaiser,
No. 2018-CA-00278-COA, 2019 WL 2428757, at *5 (¶21) (Miss. Ct. App. June 11, 2019);
Lowrey v. Simmons, 186 So. 3d 907, 913 (¶¶12-13) (Miss. Ct. App. 2015), cert. denied, 202
So. 3d 1268 (Miss. 2016). Here, the appointment of a GAL was discretionary. Therefore,
the chancellor was not required to address the GAL’s report in his opinion and final
judgment.
¶33. Moreover, the chancellor did acknowledge the GAL’s report and conclusion, and he
summarized the basic reasons why he had reached a different conclusion than the GAL: he
12 concluded that Whitehead had matured, he found it significant that Paisley had lived with
Whitehead her entire life, and he was reluctant to separate Paisley from her half-brother. In
a case such as this, the function of the GAL is only to provide additional information to assist
the chancellor in making his decision. Hensarling v. Hensarling, 824 So. 2d 583, 587 (¶10)
(Miss. 2002). The responsibility for deciding the case remains with the chancellor. Id. The
chancellor properly exercised independent judgment in deciding this case.
¶34. Although we have addressed Shirley’s arguments factor-by-factor, we conclude by
reemphasizing that Albright does not require the chancellor to grant custody to the parent
who “wins” the most factors. Blakely, 88 So. 3d at 803 (¶17). The point of Albright is to
require the chancellor to consider a nonexclusive set of factors that may or may not be
relevant depending on the facts of a particular case. The weight and significance of those
factors is then largely left to the discretion of the chancellor in light of the particular facts of
each case. In this case, the chancellor’s factual findings were not clearly erroneous, and his
rationale for granting physical custody of Paisley to Whitehead was not arbitrary or an abuse
of discretion. Therefore, the judgment of the chancery court is AFFIRMED.
BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR. TINDELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.