                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-CA-00564-SCT
MARGARET SKINNER MERCIER
v.
STEVE MERCIER

DATE OF JUDGMENT:                              04/30/96
TRIAL JUDGE:                                   HON. WILLIAM ROBERT TAYLOR, JR.
COURT FROM WHICH APPEALED:                     MARION COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                        IRVING CONRAD MORD, II
ATTORNEY FOR APPELLEE:                         LEIGH KENNINGTON BERRY
NATURE OF THE CASE:                            CIVIL - CUSTODY
DISPOSITION:                                   AFFIRMED - 7/23/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                8/17/98




     EN BANC.


     MILLS, JUSTICE, FOR THE COURT:


                                  STATEMENT OF THE CASE

¶1. Margaret Skinner Mercier appeals from a decision of the Chancery Court in Marion County
awarding full physical custody of her daughter, Dusty Richelle Mercier, to Steve Mercier, the child's
father. Aggrieved, Margaret Mercier brings this appeal assigning the following issue as error:

I. WHETHER THE TRIAL COURT ERRED IN APPLYING THE ALBRIGHT FACTORS
IN A CUSTODY CASE AND REFUSING TO AWARD PHYSICAL CUSTODY OF A
SEVEN-YEAR OLD FEMALE TO HER MOTHER.

                                 STATEMENT OF THE FACTS

¶2. Steve Mercier and Margaret Skinner Mercier were married on March 4, 1988. Dusty Richelle
Mercier was born on April 13, 1989, and is the only child produced by this marriage. The parties
separated on February 1, 1992, and were divorced on July 2, 1992. Joint legal and physical custody
of Dusty was vested in Steve and Margaret, with each having primary custody every other week.
Steve was ordered to pay $150 per month in child support and to secure and maintain medical
insurance and major medical coverage for Dusty.
¶3. Following the divorce, Steve remarried. His new wife, Lisa, has one child, Sarah, who was nine
years old at the time of trial. She resides with them full time. Steve has one other child, Brent
Mercier, age seven at the time of trial. Brent lives with his mother. Additionally, Steve and Lisa were
expecting a child at the time of this litigation.

¶4. Following the divorce, Margaret married Richard Hitt. At the time of the trial, she and Hitt had
divorced and she was residing with her parents and her aunt and attending college working on a
bachelor's degree in education.

¶5. On August 2, 1995, Steve filed a Petition to Clarify Final Decree of Divorce, alleging that
Margaret had enrolled Dusty in a private academy against his advice and wishes. Margaret answered
Steve's petition and counterclaimed that a material and substantial change in circumstances had
occurred since the Final Decree of Divorce in that Dusty was now six years old and in school. Steve
and Margaret both agreed that joint custody was impractical and not in Dusty's best interest.

¶6. Steve filed an amended petition making the same allegations as those asserted by Margaret in her
petition. Both parties argued that they were the fit, suitable and proper persons to have full care and
custody of Dusty.

¶7. Following a full trial on March 21, 1996, the chancellor found, upon admission of both parties,
that there had been a material and substantial change in circumstances since the Final Decree of
Divorce which adversely affected Dusty. The chancellor further found, pursuant to Albright v.
Albright, 437 So.2d 1003 (Miss. 1983), that the best interests of the child would be served by
granting Steve physical custody and control of Dusty, while granting legal custody to both Steve and
Margaret, with Margaret having visitation rights. Additionally, the chancellor ordered Margaret to
pay $100 per month in child support.

                                     STANDARD OF REVIEW

¶8. When reviewing a chancellor's decision, we will accept a chancellor's findings of fact as long as
the evidence in the record reasonably supports those findings. Perkins v. Thompson, 609 So.2d 390,
393 (Miss. 1992). In other words, we will not disturb the findings of a chancellor unless those
findings are clearly erroneous or an erroneous legal standard was applied. Hill v. Southeastern Floor
Covering Co., 596 So.2d 874, 877 (Miss.1992).

                                            DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN APPLYING THE ALBRIGHTFACTORS IN
A CUSTODY CASE AND REFUSING TO AWARD PHYSICAL CUSTODY OF A SEVEN-
YEAR OLD FEMALE TO HER MOTHER.

¶9. When a court enters an order awarding custody of a child, that court holds continuing jurisdiction
over the subject matter and the parties for the purpose of later modifications of that order. Miss.
Code Ann. § 93-5-23 (Supp. 1996). Any order for joint custody may be modified upon the showing
of a material change of circumstances adverse to the interest of the child. Rutledge v. Rutledge, 487
So. 2d. 218, 220 (Miss. 1986); See also Miss. Code Ann.§ 93-5-24 (6) (1994). In the case sub
judice, the parties admitted that a material change in circumstances adverse to the interest of the child
had occurred. It was thus necessary for the court to determine the custody arrangement which would
be in the best interest of the child. Newsom v. Newsom, 557 So. 2d 511, 515-16 (Miss. 1990);
Phillips v. Phillips, 555 So. 2d 698, 700 (Miss. 1989). Margaret asserts the chancellor misapplied
that law in the instant case.

¶10. The Albright factors are as follows:

     1. Age, health, sex of the child.

     2. Continuity of care prior to the separation.

     3. Parenting skills and willingness and capacity to provide primary child care.

     4. Employment of the parent and responsibilities of that employment.

     5. Physical and mental health and age of the parents.

     6. Emotional ties of the parent and the child.

     7. Moral fitness of the parents.

     8. The home, school, and community record of the child.

     9. The preference of the child at the age sufficient, by law, to express a preference.

     10. Stability of home and employment of each parent.

     11. Other factors relevant to the parent-child relationship.

Albright, 437 So. 2d at 1005. The polestar consideration in custody matters is the best interest and
welfare of the child, and the above stated factors are to be employed in the furtherance of that
determination. Id.

¶11. In the instant case, the chancellor found that factors 3, 4, 8, and 10 weighed in Steve's favor.
The chancellor found the remaining factors, with the exception of factor 9, which is not applicable
here, to weigh equally between the parties.

¶12. Margaret asserts that the chancellor erred when he concluded that factor number one, the age,
sex and health of the child, weighed equally between the parties. She cites a litany of cases to support
her proposition that if a mother is fit and a child, especially a female child, is of tender years, then the
mother should be awarded custody. Buntyn v. Smallwood, 412 So. 2d 236, 238 (Miss. 1982)
(custody of female child of five years of age granted to mother); Kyzar v. Kyzar, 248 Miss. 59, 157
So. 2d 770 (1963) (custody of three females and one male, ranging in age from one and one-half
years old to nine years old, granted to mother); Brown v. Brown, 237 Miss. 53, 112 So. 2d 556
(1959) (custody of four and one-half year old female granted to mother); Thames v. Thames, 233
Miss. 24, 100 So. 2d 868 (1958); Scott v. Scott, 219 Miss. 614, 631, 69 So. 2d 489 (1954) (custody
of female five year old granted to mother); Kennedy v. Kennedy, 222 Miss. 469, 76 So. 2d 375
(1954) (custody of four year old male granted to mother); Boswell v. Pope, 213 Miss. 31, 56 So. 2d
1 (1952) (custody of three year and five month old female granted to mother); Miles v. Miles, 111
Miss. 110, 71 So. 295 (1916).

¶13. The tender years doctrine on which Margaret relies was established by this Court in 1879 in
Johns v. Johns, 57 Miss. 530 (1879) and is stated as follows:

     '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.'

Brown v. Brown, 237 Miss. 53, 58, 112 So.2d 556, 559 (1959)(quoting Amis, Divorce and
Separation in Mississippi (1935), Sec 219, page 296).

¶14. The tender years doctrine has been gradually weakened in Mississippi jurisprudence to the point
of now being only a presumption. Law v. Page, 618 So.2d 96, 101 (Miss. 1993). Today, the age of a
child is simply one of the factors that we consider in determining the best interests of the child.
Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). In this case, Dusty was within weeks of
her seventh birthday at the time of trial. The cases cited by Margaret in support of the proposition
that, as a female in her tender years Dusty should reside with her mother, are all pre-Albright cases
when the tender years doctrine was a rule rather than one of several factors to consider in
determining custody. Furthermore, in each of these cases, the child was younger than Dusty, or there
were several siblings, with at least one of them being younger than Dusty.

¶15. Margaret further alleges that the chancellor summarily dismissed the tender years doctrine
without inquiry. We disagree. The chancellor addressed this issue when he noted that Dusty was no
longer of tender years since she was nearly seven at the time of hearing. As stated supra, a child is no
longer of tender years when that child can be equally cared for by persons other than the mother. We
have held that a child of seven is long past the age that requires this type of special care from her
mother. Torrence v. Moore, 455 So.2d 778, 780 (Miss. 1984)(citing Duncan v. Duncan, 119 Miss.
271, 80 So. 697 (1919)). Not only can other people care for Dusty as well as her mother, but the
record reflects that Steve Mercier does care for Dusty as well as or better than her mother. We are
satisfied that the chancellor sufficiently addressed the tender years doctrine by finding that it did not
apply.

¶16. Not only do we find that the chancellor correctly evaluated the tender years doctrine, but we
also find that he properly weighed the remaining Albright factors. The chancellor noted that Steve
has a steady job and significant income while Margaret is a student living on a Pell grant, student
loans, and part time jobs. In fact, Margaret has admitted that she is forced to rely upon the kindness
of her kin to sustain Dusty and herself. While the income is certainly in Steve's favor, the record
shows numerous other reasons why the Albright factors are weighted in Steve's favor. The
chancellor found that Steve Mercier had better parenting skills and ability to provide primary child
care, that his employment and responsibilities were more suited to the care of Dusty, that he could
provide a more stable home environment for Dusty, and that Dusty's home, school and community
record indicate that she should be with Steve.

¶17. Steve testified that he is the manager of a cable company where he has been employed for six
years. He illustrated that his hours are flexible and that he is able to adjust his work schedule to meet
Dusty's needs.
¶18. Steve further testified that either he or his present wife, Lisa Mercier, always take Dusty to
school on time and pick her up on time. To the contrary, Margaret Mercier admitted that she has
repeatedly checked Dusty out of school early because neither she, nor Dusty, like to wait in the car
line. She also admitted that on at least one occasion, she had checked Dusty out before 11:00 a.m.
for a "fun" day. The record also reflects that Margaret's work and school schedule do not permit her
to take and pick Dusty up from school on Thursdays. Her elderly aunt, who lives with them, picks
Dusty up on these days. When the elderly aunt is traveling, another family member provides Dusty
with transportation to and from school.

¶19. Steve's home also seems to be more appropriate because he has been married to Lisa for three
and a half years, and they provide a stable home life, with siblings, for Dusty. He shares in the
responsibilities of raising Lisa's daughter, Sarah Mullins, who is 9. They also have visitation with his
son Brent, and at the time of litigation Lisa was pregnant. The record reflects amity between Dusty
and her siblings, Sarah and Brent. As the chancellor noted, Steve spends most evenings at home and
his life seems to revolve around his family and his children.

¶20. While Margaret is not an unfit mother, she has not provided the stability that Steve provides.
She has moved six times since her divorce from Steve. Subsequent to the divorce, she remarried
Richard Hitt. She then left Hitt, stating in her complaint for divorce that he caused Dusty and her to
suffer mental duress. There is conflicting testimony over whether or not she has subsequently been
engaged to a man in McComb and broken that engagement. Margaret presently lives with her elderly
parents. It is undisputed that Dusty has a close and loving relationship with her grandparents;
however, we agree with the chancellor that Steve's household is more appropriate for a young child.
While in Steve's home Dusty is cared for by Steve and Lisa. She interacts not only with her siblings,
but with other children close to her age. Steve has ensured that Dusty is involved in child-oriented
activities by enrolling her in gymnastics and T-ball. While in Margaret's care, Dusty seems to spend
all of her time with her grandparents, her elderly aunt, or Margaret. Margaret has enrolled her in
piano lessons; however, this one hour lesson every week is spent with another adult, her piano
teacher. The record reflects that Steve's home is simply a happier, healthier home for a child. Perhaps
this is why on more than one occasion Dusty has cried and Steve has had to physically force her to
return to Margaret.

¶21. Not only does Steve ensure that Dusty is involved in child oriented activities, but he has shown
that he is able to meet her emotional needs in other ways. After Margaret ended her tumultuous
relationship with Richard Hitt, Steve sought professional counseling for Dusty to help her with
emotional problems she exhibited. He is also providing guidance by rearing Dusty in a church-
oriented environment.

¶22. All too often chancellors, as arms of the state, are forced to render difficult decisions when
adults fail to act in the best interests of their children. In this case, the learned and compassionate
chancellor got it right. His decree correctly balances the Albright factors and is not in error. We,
therefore, affirm.

¶23. AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., McRAE AND ROBERTS, JJ.,
CONCUR. McRAE, J., SPECIALLY CONCURS WITH SEPERATE WRITTEN OPINION
JOINED BY ROBERTS, J. WALLER, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY BANKS AND SMITH, JJ.


     McRAE, JUSTICE, SPECIALLY CONCURRING:


¶24. Our polestar consideration in child custody cases must always be the best interests of the child.
Given the evidence in the record viewed in light of the factors enumerated in Albright v. Albright,
437 So. 2d 1003, 1005 (Miss. 1983), the chancellor cannot be held in error for finding that seven-
year-old Dusty Mercier was not a child of tender years and that her best interests would be served by
awarding full custody to her father. His decision correctly keeps the tender years doctrine in its
proper context as a mere guideline to consider in determining the best interests of only the youngest
and most helpless infants and children. Our most recent pronouncements on the doctrine are premised
on the modern view that we look to the best interests of the child and which parent can better meet
the child's needs at a particular point in his life.

¶25. In Chamblee v. Chamblee, 637 So. 2d 850 (Miss. 1994), the most recent case where this Court
has construed and rejected the tender years doctrine, we refused to accept a mother's argument that
the chancellor erred in not following the doctrine when awarding custody of a four-year-old boy to
his father. Reviewing the rise and fall of the doctrine, this Court stated:

     This rule dates back over a century to the case of Johns v. Johns, 57 Miss. 530 (1879), where
     this court stated, "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." Id.Recent jurisprudence,
     however, has weakened this doctrine. Cheek v. Ricker, 431 So. 2d 1139 (Miss. 1983), states,
     "it hardly seems rational that the age of a child should per se lead to any particular result." Id.,
     at 1145. Albright similarly holds that the age of the child is but one factor to be considered in
     determining proper custody. Albright at 1005. Any application in this case of whatever is
     left of the "tender years" doctrine is insufficient to find that the chancellor's award of
     custody was manifest error.

Chamblee, 637 So. 2d at 861 (emphasis added). Further, in Law v. Page, 618 So. 2d 96, 100 (Miss.
1993), affirming the chancellor's order awarding a father custody of his fourteen- month-old son born
out-of-wedlock, we noted that the tender years doctrine was not absolute; rather, it was a
presumption and not a rule. See also Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992)(rejecting
tender years argument to affirm chancellor's award of custody to father of six-year-old daughter and
three-year-old son).

¶26. Our reliance on the tender years doctrine has eroded in recent years, properly focusing our
concern on the best interests of the child without any per se restrictions as to which parent should
have primary custody, based merely on the age or gender of the child or the gender of the parent. See
Caban v. Mohammed, 441 U.S. 380 (1979)(rejecting New York's gender-based distinction between
rights of unwed fathers and unwed mothers to block adoption of their illegitimate offspring). This
reflects the realities of modern life where an increasing number of women work outside of the home,
returning to work within weeks after their babies are born. No longer is mother the primary care
giver; rather, fathers are playing an increasing role in raising their children, regardless of the family
circumstances. Many even emerge as the more nurturing and involved parent! In this case, the record
indicates that the chancellor's primary consideration was the child's best interests, and he properly
found the tender years doctrine inapplicable.

ROBERTS, J., JOINS THIS OPINION.

     WALLER, JUSTICE, DISSENTING:


¶27. Because I believe that the majority opinion sets a dangerous precedent for custody cases, I
respectfully dissent. The effect of the majority's decision today is to give paramount consideration to
one parent's financial status when determining custody disputes. Additionally, the chancellor failed to
give proper weight to the tender years doctrine.

¶28. Initially, I point out that it appears that the chancellor adopted, almost verbatim, Steve's
Statement of Facts and Conclusions of Law as the final judgment of the court. As such, this Court
"`must view the challenged findings of fact and the appellate record as a whole with a more critical
eye to insure that the trial court has adequately performed its function." Omnibank of Mantee v.
United Southern Bank, 607 So.2d 76, 83 (Miss. 1992)(quoting Rice Researchers, Inc. v. Hiter,
512 So.2d 1259, 1265 (Miss. 1987)).

¶29. When considering the Albright factors, the chancellor placed inordinate weight on onesingle
factor, namely Steve's employment and income, which is significantly higher than Margaret's. I do not
quarrel with the factual accuracy of the chancellor's reasons. However, I do find it disturbing that
these reasons can be the primary basis upon which the decision to grant custody is made. It is true
that Margaret, at the present time, cannot provide Dusty with all the material things that Steve is
financially able to provide her. There is no proof that Dusty suffered in any manner from Margaret's
lack of financial resources, and Margaret is able to provide Dusty with a loving environment
surrounded by relatives who love and care for her.

¶30. The chancellor found that Margaret had not attempted to provide a better home for Dusty. He
also praised Steve for continually moving to a bigger home. I fail to see how temporarily residing
with loving and caring grandparents is not an attempt to provide a better home for a child. Margaret
has placed Dusty in the most loving and secure environment available to her. In essence, Margaret
was penalized for doing the exact same thing that Steve was praised for doing.

¶31. Margaret is attempting to better her and Dusty's lives by returning to school and obtaining a
teaching certificate. In effect, today's decision penalizes Margaret for attempting to better provide for
herself and her child. In our society it is common for the mother to forego or temporarily abandon a
career outside the home in order to have children, or to care for children until they are old enough
and mature enough to allow the mother to return to work, or to purposefully take a lower paying job
that allows flexibility to participate in usual parenting activities. This usually results in the
underemployment of the mother, which poses no significant problem or detriment to the mother as
long as she and her husband remain married. However, should the couple divorce, it is often
necessary for the now divorced ex-wife, but still mother, to acquire skills necessary to land a job in
today's competitive workforce with the view of being the sole breadwinner. One way to acquire such
skills is through education.

¶32. A teaching certificate would provide Margaret with the advantages of competitive pay and hours
and days off consistent with a child's schedule to allow maximum parental involvement in the child's
life. This was disregarded by the chancellor, who instead, championed the managerial position
enjoyed by the father that demands much more time away from the child than Margaret's planned
teaching job would require. Today's decision unfairly penalizes divorced women, who interrupt
careers to have children, stay at home with children, or take jobs that allow them to be available for
their children. In effect, the majority has allowed the "shinier car, bigger house" analysis that the
chancellor applied to become the determinative factor in this case, ignoring real life in the trenches.

¶33. The chancellor found it laudable that Steve has enrolled Dusty in child-oriented activities such as
gymnastics and T-ball. On the other hand, Margaret has enrolled Dusty in piano lessons and involves
Dusty in church activities several times a week. It is difficult to conceive a situation where activities
such as gymnastics and T-ball should be given greater weight than church and learning to play a
musical instrument. The chancellor also seems to place great emphasis on Steve's enrolling Dusty in
extracurricular activities that solely involve other children. As a practical matter, Dusty spends much
more time than this with other children at school, not to mention the myriad of extracurricular
activities associated with school.

¶34. A reading of the Final Judgment issued by the chancellor reveals that he gave little or no weight
to Dusty's age, the first factor in Albright. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).
The chancellor found that Dusty, at age seven, could be cared for equally by persons other than her
mother. Additionally, the chancellor found that since Steve had remarried, his current wife and her
nine year old daughter were available to care for Dusty. It appears that the chancellor dismissed
Margaret's contention regarding the close nexus between a mother and her daughter, stating that it
might have had some validity had Steve not remarried. Following the chancellor's logic on this point,
it seems that a male can defeat the "tender years" presumption by merely remarrying. This is a
proposition that I do not endorse. While there are fathers who are as good as, or better than, mothers
with young daughters, that would be the exception, and such was not shown to exist in this case. I
submit that, under the facts of the instant case, the chancellor failed to fully consider the tender years
doctrine as required under the first factor of the Albright test.

¶35. The polestar consideration in custody matters is the best interest and welfare of the child, and all
of the Albright factors are to be employed in the furtherance of that determination. Albright, 437
So.2d at 1005. In the case sub judice, the chancellor failed to properly consider all of the Albright
factors. This was a close case, but the tie should not be broken by monetary considerations when
there is no proof that the child has suffered or would suffer from a lack of resources. Further, since
the chancellor summarily adopted the findings of fact and conclusions of law propounded by Steve,
this Court should employ a heightened sense of scrutiny, which reveals that the chancellor abused his
discretion in awarding custody of Dusty to Steve.

¶36. I respectfully dissent.

BANKS AND SMITH, JJ., JOIN THIS OPINION.
