TIFFANY MICHELLE TILLEY v. JOHN MICHAEL GIBBS

Jackson, Mississippi Domestic Relations lawyer represented the APPELLANT with appealing awarding her ex-husband John Gibbs physical custody of their daughter

John and Tiffany were married on April 6, 2019, in Lowndes County, Mississippi.2

The parties had one child, V.G., born prior to the marriage on December 19, 2018. On

1Initials are used to protect the identity of the minor child.

2Tiffany had a son from a prior relationship, B.S., who was in Tiffany's mother's

custody at the time of John and Tiffany's marriage.

December 14, 2021, John filed his original complaint for divorce against Tiffany. Tiffany

filed her answer to the complaint and a counterclaim, and the matter was set for a temporary

hearing. On the date of the hearing in January 2022, the parties agreed to a temporary order

granting Tiffany custody of the minor child and granting John visitation. At trial in May

2022, the parties agreed to withdraw fault grounds for divorce and proceeded on the

contested issue of custody and child support. Both sides presented several witnesses at trial

and the chancery court took the matter under advisement.

¶3.

While awaiting the court's decision, Tiffany filed a supplemental motion for a

protective order against John concerning messages he sent to her containing possible threats

and harassment. John filed a response admitting he sent the messages but denying the

messages were directed at Tiffany. The matter was set for a hearing on September 13, 2022,

but Tiffany requested that the court hold the matter in abeyance without a hearing.

¶4.

On September 16, 2022, the chancery court issued its opinion and final judgment,

granting an irreconcilable differences divorce, awarding joint legal custody with John being

awarded physical custody. The court awarded Tiffany visitation and ordered her to pay child

support of $490.00 per month. Thereafter, Tiffany filed a motion for a new trial, or to alter

or amend the final judgment, advancing arguments including failure to consider certain

material and substantial evidence in making an Albright analysis.3 On October 20, 2022, the

chancery court entered an order amending the opinion and final judgment to correct dates and

3Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983).

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names but denied Tiffany's request for reconsideration of custody. Tiffany subsequently filed

the instant appeal.

¶5.

STANDARD OF REVIEW

Our "standard of review for a child-custody case is a narrow one.” Munday v.

McLendon, 287 So. 3d 303, 309 (¶25) (Miss. Ct. App. 2019). We "will affirm the

child-custody decree if the record shows any ground upon which the decision may be

justified.” Brumfield v. Brumfield, 49 So. 3d 138, 142 (¶9) (Miss. Ct. App. 2010) (emphasis

added). This Court "will not reverse unless the [chancellor] made findings that are manifestly

wrong or clearly erroneous or applied an improper legal standard.” Munday, 287 So. 3d at

309 (¶25).

¶6.

DISCUSSION

On appeal, Tiffany claims the chancellor erred in his consideration and application

of the factors utilized to determine custody of V.G. For cases "appeal[ing] from

child-custody decisions, 'our polestar consideration,' like the chancellor's, 'must be the best

interest of the child.'” Id. at 309 (¶26) (quoting Montgomery v. Montgomery, 20 So. 3d 39,

42 (¶9) (Miss. Ct. App. 2009)). To determine the result that would be in the child's best

interest, the chancellor considers the Albright factors set out as follows:

(1) age, health and sex of the child; (2) determination of the parent that had the

continuity of care prior to the separation; (3) which has the best parenting

skills and which has the willingness and capacity to provide primary child

care; (4) the employment of the parent and responsibilities of that employment;

(5) physical and mental health and age of the parents; (6) emotional ties of

parent and child; (7) moral fitness of the parents; (8) the home, school and

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community record of the child; (9) the preference of the child at the age

sufficient to express a preference by law; (10) stability of home environment

and employment of each parent; and (11) other factors relevant to the

parent-child relationship.

Street v. Street, 936 So. 2d 1002, 1009 (¶20) (Miss. Ct. App. 2006) (quoting Albright, 437

So. 2d at 1005). "'All the factors are important, but the chancellor has the ultimate discretion

to weigh the evidence the way [he] sees fit' in determining where the child's best interest

lies.” Blakely v. Blakely, 88 So. 3d 798, 803 (¶17) (Miss. Ct. App. 2012) (quoting Johnson

v. Gray, 859 So. 2d 1006, 1013-14 (¶36) (Miss. 2003)).

¶7.

Tiffany claims that many of the factors that were either weighed in John's favor or

found to be neutral should have been found in her favor, including continuity of care; age,

health, and sex of the child; parenting skills and willingness to provide primary care;

employment of the parent and responsibilities of employment; physical and emotional fitness

and age of the parents; stability of home environment; and separation of siblings. We address

each challenged factor in turn.

1.

¶8.

Age and Sex of the Child

On appeal, Tiffany argues "that the chancellor did not give sufficient weight to the sex

of the children when considering a female child in the tender years[,]” and that "there is still

a presumption that a mother is generally better suited to raise a young child.” The chancellor

found that at the time of trial, V.G. was a three-and-a-half-year-old female child. But the

chancellor determined that V.G. was not dependent on Tiffany for her physical welfare and

that John was capable and equally adept at caring for her. The court's order noted that the

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tender years doctrine is only a presumption and concluded that this factor was neutral.

¶9.

"Mississippi law does not support [the] argument that a child's mother, as opposed

to the father, is the best caregiver by default.” Sellers v. Rinderer, 248 So. 3d 930, 934 (¶12)

(Miss. Ct. App. 2018). Defining the tender years presumption,

The tender years doctrine is not a rule, but merely a presumption that, 'in all

cases where any child is of such tender age as to require the mother's care for

its physical welfare, it should be awarded to her custody, at least until it

reaches that age and maturity where it can be equally well cared for by other

persons.'

Street, 936 So. 2d at 1010 (¶23) (quoting Law v. Page, 618 So. 2d 96, 101 (Miss. 1993)). The

tender years presumption has weakened over time. See Kerr v. Kerr, 323 So. 3d 462, 477

(¶56) (Miss. 2021).

¶10. Tiffany's argument implies that she should have been favored under this factor by

default as the mother. But John had the opportunity to overcome the presumption with

evidence showing that he was equally capable of caring for her. Ample evidence in the

record shows that Tiffany was absent from the marital home and V.G.'s care for a significant

period during the marriage (approximately 170 days over a span of twelve months, give or

take a few contested dates), leaving John to care for the child without her mother. Further

diminishing the tender years presumption, evidence demonstrated the role of additional

family members who provided assistance as caregivers, including William Gibbs, John's

father, and Albert Baker, Tiffany's grandfather. John testified to numerous examples of his

pattern of care to illustrate that he was equally capable of providing the care needed by his

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daughter. Further, Tiffany did not offer evidence to dispute that John was equally capable of

taking care of their daughter, nor did she demonstrate any reason as to why she is better

suited to raise her. Substantial evidence supports the court's ruling that the tender years

presumption was overcome based on the ability of others to equally care for her. As such, the

chancellor did not abuse his discretion by finding this factor neutral or in the weight he

assigned to it.

2.

Continuity of Care

¶11. Tiffany also claims the chancery court erred in its application of the continuity of care

factor. She argues the chancellor's conclusion that John or his father were the primary

caregiver was erroneous because of his work schedule's affect on his ability to be present

during the hours of the day when V.G. was awake. She also argues the chancellor's finding

was unfounded due to the fact that she had primary custody during the temporary order,

changed her actions, and ended up being the parent with the most continuity of care. She

contends that neither she nor John had an advantage for the factor of continuity of care prior

to separation because both were heavily assisted in their care by family.

¶12. As previously noted, the chancellor determined that Tiffany spent the night away from

the marital home at least 170 times from December 2020 until November 2021. The

chancellor also found that regardless of the disputes over a few contested dates and reasons

for her absence, Tiffany admitted she was away from V.G. on these nights with another man.

Thus, the chancellor concluded that "John and/or his father were the primary caregivers for

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V.G. prior to separation” and held that this factor favored John.

¶13. We first address Tiffany's argument that care of V.G. prior to their marriage

separation should not have favored John. Tiffany's claim that it was impossible for John to

be the primary caregiver narrowly focuses on the nighttime care of their daughter, but the

continuity of care factor is not limited in such a way. Although John often worked nights and

she was in William's or Baker's care at night, there is substantial evidence in the record

showing that John provided continuous care for her in a wide range of ways. John testified

that during their marriage, he took the second shift or late job at Dollar General so that he

could take care of both children in the mornings. This included feeding them breakfast,

getting them dressed, ensuring B.S. got on the school bus, and taking V.G. to daycare.

William testified that when he had V.G. in his care, John would call on a regular basis to

check on her but William never received a call from Tiffany checking on the child. Also, the

testimony at trial indicated that on the many nights Tiffany did not come home, she did not

make arrangements for V.G.'s care. Instead, she would call John to inform him that she was

not coming home and he took responsibility to call someone and arrange for them to pick up

and take care of V.G. until he completed his shift at work. Reviewing the record, we find

substantial evidence to support the chancellor's finding that John was the primary caregiver

prior to their separation.

¶14. However, our analysis does not end at the time of their separation. "The original

articulation of the Albright factors directed the chancery court to consider the continuity of

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care prior to separation[,]” but the Mississippi "Supreme Court has since held that care after

separation must be considered as well.” Case v. Case, 339 So. 3d 796, 804 (¶22) (Miss. Ct.

App. 2022) (quoting Edwards v. Edwards, 189 So. 3d 1284, 1287 (¶11) (Miss. Ct. App.

2016)); see also Caswell v. Caswell, 763 So. 2d 890, 893 (¶8) (Miss. Ct. App. 2000) (holding

chancellor must consider continuity of care prior to and after separation). Tiffany contends

she should have been deemed the primary caregiver during the period of post-separation. In

furtherance of this argument, she highlights that she was given physical custody of V.G.

during their separation pursuant to the temporary order, she altered her work hours to fulfill

this responsibility, and she therefore had been the primary caregiver for the eight months

preceding the custody judgment.

¶15. But we find Tiffany's claim that she was the primary caregiver post-separation is

flawed because her claim is based heavily upon the legal status granted under the temporary

order and fails to account for the "continuous” aspect of care. "[T]his Court has recognized

that a 'chancellor must conduct an Albright analysis and decide the issue of permanent

custody de novo regardless of the temporary order.'” Lambes v. Lambes, 345 So. 3d 592,

604 (¶49) (Miss. Ct. App. 2022) (emphasis added) (quoting Sanders, 281 So. 3d at 1054

(¶43)). Because the chancellor is instructed to conduct the Albright analysis independent of

the temporary order, it was appropriate for him to not focus his findings simply on the

temporary award of physical custody to Tiffany in his analysis of the continuity-of-care

factor. Further, the evidence supports the finding that after separation John continued to

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spend time with V.G. on weekends, sought time with her on weekdays during daycare hours,

and accompanied her to events such as a father-daughter dance. The evidence also shows that

throughout the separation period, Tiffany and John continued to receive help from others

with V.G.'s daycare pick-ups and drop-offs and with providing a place for her to stay.

¶16. Looking at the evidence as a whole, we find the chancellor did not abuse his discretion

by finding that John was the primary