MEMORANDUM AND ORDER
F. SAYLOR IV, District Judge
For the reasons set forth below, the Court (1) grants the plaintiff's motion to proceed in forma pauperis; (2) directs the plaintiff to show cause why this action should not be dismissed; and (3) denies plaintiff's motions for a protective order and for counsel.
I. Background
On October 18, 2010, pro se plaintiff Raymond C. Sheridan, a resident of Worcester, filed a complaint and an application for leave to proceed in forma pauperis (Docket Nos. 1 and 4, respectively). Plaintiff also filed a motion for a "protective order" (Docket No. 2) and a motion for counsel (Docket No. 3).
Plaintiff's three-page complaint is somewhat confused. The named defendants are the Nashua Housing Authority and four of its employees. Plaintiff states that he resided in housing administered by the Nashua Housing Authority from March 2001 until January 2010. As best as can be determined from the allegations of the complaint, it appears that a dispute arose between plaintiff and a new female neighbor in 2008; plaintiff alleges that the neighbor falsely claimed that he attempted to rape her and that he broke into her apartment and stole her food. The neighbor's complaints against plaintiff necessitated the involvement of the Nashua police department on numerous occasions. Plaintiff states that he complained to the defendants about the neighbor, but defendants did not relocate the neighbor or the plaintiff.
Plaintiff apparently filed legal action in New Hampshire against the neighbor and/or the Nashua Housing Authority, and initially received a protection order against the neighbor; it also appears that the New Hampshire court eventually dismissed the protection order along with plaintiff's case in its entirety. Further, it appears from plaintiff's allegations that the Nashua Housing Authority subsequently brought an eviction action against him in New Hampshire state court. Plaintiff states that he was unable to obtain counsel to represent him in connection with his eviction, that the New Hampshire court denied his request for a continuance, and that ultimately he was wrongfully evicted from the property. It is not possible to determine conclusively from the complaint whether he appealed the outcome of either New Hampshire state court action, but it does not appear that he did.
The complaint states that "The District Court Judge Dismissed the Protection Order as well. The Defendants refused to comply with my request to be subpoena in Court to validate or take any actions to relief/resolve problems" [sic]. (Complaint p. 2).
In the present action, plaintiff now asks this Court to have pro bono counsel "look over the paperwork" from his eviction proceeding in order to "see if the plaintiff has a good case with a Jury or not." He seeks, among other things, liens or money damages against the defendants for failing to help him with respect to the dispute with the female neighbor, or in the alternative, he seeks an order directing defendants to "pay [his] rent for the rest of [his] life. . . ." (Complaint p. 3).
II. Analysis
A. Motion to Proceed In Forma Pauperis
It appears that plaintiff is disabled and unemployed. Upon review of the allegations contained in his application to proceed in forma pauperis (Docket No. 4), the Court will grant the application.
Attached to his complaint is a document from the Social Security Administration stating that plaintiff is disabled due to mental impairment(s) consisting of "schizophrenic, paranoid and other functional psychotic disorders."
B. Preliminary Screening Pursuant to 28 U.S.C. § 1915
Because plaintiff is proceeding in forma pauperis, his complaint is subject to screening under 28 U.S.C. § 1915(e)(2). That statute authorizes federal courts to dismiss actions in which a plaintiff seeks to proceed without prepayment of fees if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2); Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989). In conducting this review, the Court will liberally construe the complaint because the plaintiff is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
C. Plaintiff's Complaint Is Subject to Dismissal
Construed generously, it appears that plaintiff is attempting to relitigate or appeal the judgment of the New Hampshire state court with respect to the initial dispute with the defendants and his neighbor and/or with respect to his eviction. Such claims, however, cannot be brought in this Court. Lower federal courts lack subject matter jurisdiction to review appeals of matters that have been litigated in state court proceedings, and may not review the civil judgments of state courts. See Hill v. Town of Conway, 193 F.3d 33, 39 (1st Cir. 1999); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-486 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923) (district courts may not exercise appellate jurisdiction over state courts). For this reason, the complaint is subject to dismissal. Plaintiff, however, will be given 35 days in which to show cause why dismissal is not appropriate before the Court takes final action.
III. Order
For the foregoing reasons,
(1) The motion to proceed
in forma pauperis (No. 4) is GRANTED;
(2) Plaintiff is directed to show cause, in writing, within 35 days from the date of this Order, as to why this action should not be dismissed for the reasons stated above;
(3) Plaintiff's motion for "protective order" (No. 2) is DENIED; and
(4) Plaintiff's motion for counsel (No. 3) is also DENIED.
So Ordered.
Dated: November 30, 2010.
other affairs, but another man, Brad Gatlin, testified that he had met Heather on the Internet some time prior to the separation. After the separation, Gatlin stated, he and Heather had sexual intercourse in her home on several occasions, while the children were in another room. On one occasion, the children had witnessed Heather and Gatlin kissing. Gatlin also testified that Heather had confessed a sexual relationship with a third man that had occurred shortly after the separation.
¶ 40. Heather characterized her relationship with Gatlin differently — she stated that they were friends and that she had seen Gatlin on several occasions so that her children and his could play together. Heather admitted that Gatlin had courted her and kissed her, once; and she acknowledged that her children had seen it. But Heather claimed to have rejected Gatlin's advances and attempted, unsuccessfully, to "set him up" with some of her friends. After she started seeing someone else, Heather testified, Gatlin repeatedly threatened to kill himself.
¶ 41. The chancellor apparently found Gatlin's testimony more credible, and she faulted Heather for exposing the children to the extramarital relationship. On appeal, Heather urges this Court to disregard Gatlin's testimony and accept her account, but we think it was clearly the chancellor's province to decide whose account was credible. Heather also argues that the chancellor erred in weighing this conduct against her history of participating in the children's church activities. She also points out that her and Alex's first child was born out of wedlock. Again, this Court cannot reweigh the evidence on appeal. We are limited to determining whether the chancellor's findings are supported by substantial evidence.
¶ 42. Heather also suggests in her brief on remand that the chancellor "punished" her for the adultery by awarding Alex custody of the children. We acknowledge that under our law a chancellor may not use marital fault as a sanction in custody awards. Albright, 437 So.2d at 1005. The chancellor should consider adultery as part of moral fitness, one of the Albright factors, and moral fitness must be "only one factor when considering what was in the best interest and welfare of the children." Brekeen v. Brekeen, 880 So.2d 280, 284 (¶ 6) (Miss. 2004) (citing Carr v. Carr, 480 So.2d 1120, 1123 (Miss. 1985)). Our courts have not been reluctant to reverse custody decisions where the chancellor placed too much weight on one parent's sexual misconduct while disregarding the other Albright factors. But after a thorough review of the record and the chancellor's findings, we are satisfied that this is not the case. Although her discussion of moral fitness was brief in both opinions, the chancellor was careful to emphasize that Heather was faulted for exposing the children to extramarital relationships; Heather was not faulted for simply engaging in adultery. In finding that the moral fitness factor favored Alex, the chancellor also cited his leading role in the children's religious education in recent years.
¶ 43. It is plain from the record that the chancellor made extensive findings on the other factors, supported by substantial evidence, while only noting the adulteries briefly and in the context of their impact on the children. That being the case, Heather does not argue that the chancellor expressly placed too much weight on her adultery or failed to consider the other Albright factors. Instead, Heather insinuates that her adultery caused the chancellor to discredit her testimony and to weigh the evidence on the other Albright factors unfairly against her. After thoroughly reviewing the record, we can find nothing to support this allegation.
¶ 44. We find the chancellor's decision on this factor supported by substantial evidence.
F. Other Factors
¶ 45. In this factor, the chancellor addressed the domestic violence incident and other allegations. The chancellor largely accepted Heather's account of the September 2005 incident, finding that Alex had thrown Heather to the ground and struck her twice with a belt. Although Alex's conduct was "inexcusable," the chancellor noted that it had occurred at a stressful time and that both parents had acted outrageously in challenging each other's authority over the children. The chancellor concluded that it was an isolated incident and that, weighed against the other Albright factors, it did not justify awarding custody of the children to Heather.
¶ 46. Heather argues on appeal that, while there was perhaps only one violent incident, it was part of a greater pattern of Alex's misbehavior. Heather notes that she had testified that Alex was an alcoholic and had problems controlling his anger. She alleged that by the end of the marriage, Alex would drink every day and that she had begged him to seek counseling. The chancellor does not appear to have found this testimony to be credible, as she specifically addressed and rejected Heather's suggestion that Alex needed treatment for alcoholism. This appears to be supported by substantial evidence. Several witnesses testified that Alex only drank occasionally, and Heather's testimony about Alex's habitual alcohol use consisted almost entirely of broad generalizations.
¶ 47. Heather also alleged that Alex had an "anger problem" that required treatment. As the dissent notes, Heather leveled many allegations against Alex. She accused Alex of, among other things, being emotionally abusive, criticizing her appearance, questioning her intelligence, making misogynistic comments, questioning the paternity of the children, suggesting that she should terminate the pregnancies of the later children by abortion, and starting arguments for no apparent reason. Alex disputed much of this testimony. He accused Heather of being the principal instigator of their fights and opined that she was the one who needed counseling. It should be noted that neither parent accused the other of acting angrily toward the children, only toward each other in the children's presence.
¶ 48. The chancellor did not accept either party's claims that the other was responsible for their marital difficulties. Instead, she was critical of both parents' conduct toward each other, particularly their willingness to expose the children to their arguments. In the chancellor's view, this did not favor either party. The record supports this conclusion. As the trier of fact, the chancellor is the judge of the credibility of the witnesses, and she decides the weight of their testimonies. Bowen v. Bowen, 982 So.2d 385, 395 (¶ 42) (Miss. 2008). This Court cannot reweigh this testimony on appeal.
¶ 49. The decision as to where the children's best interest lies is entrusted to the chancellor's sound discretion, which cannot be disturbed absent a clear showing of an abuse of that discretion. We are satisfied that the chancellor thoroughly considered the evidence offered on the Albright factors and that her findings are supported by substantial evidence. We can find no error in the chancellor's decision awarding Alex custody of the children.
¶ 50. THE JUDGMENT OF THE CHANCERY COURT OF WALTHALL COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, P.J., IRVING, GRIFFIS, ISHEE, ROBERTS, AND MAXWELL, JJ., CONCUR. BARNES, J, CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. KING, C.J., NOT PARTICIPATING.
CARLTON, J., Dissenting:
¶ 51. I respectfully dissent and would remand this case back to the chancellor for appointment of a guardian ad litem to represent the interests of the children and to make recommendations to the chancellor as to the children's best interests. See Miss. Code § 43-21-121 (Rev. 2009). I fully acknowledge the difficulty faced by chancellors in determining custody in cases fraught with conflict between the parents. However, in determining custody, we must separate the issues of spousal fault in order to focus on parental fitness and issues relevant to the determination of the best interests of the children in the custody award. The task faced by the chancellor in these cases is indeed difficult, and in addressing such difficult situations, chancellors may avail the assistance of a guardian ad litem to assist in making recommendations or to represent the children's interests. See id. (Chancellors may appoint a guardian ad litem in situations including "when the interests of the child and the parent, considered in the context of the cause, appear to conflict"; when evidence is raised as to abuse or neglect of the children; and in any other cause where the appointment is "in the best interest of the children."). See also Mayfield v. Mayfield, 956 So.2d 337, 345-46 (1TO 23-26) (Miss.Ct.App. 2007) (Chancellor relied upon guardian ad litem's report and recommendation that custody should be awarded to the father, where the mother involved the children in adulterous activities and violated court orders restricting contact between the children and the mother's paramour.); Ethridge v. Ethridge, 926 So.2d 264, 267 (¶¶ 11-14) (Miss. Ct.App. 2006) (Guardian ad litem appointed to inquire into mother's relationship with a drug user, and the chancellor made suitable allowances for concerns raised by the guardian ad litem.); Forsythe v. Akers, 768 So.2d 943, 948 (¶¶ 12-13) (Miss. Ct.App. 2000) (Custodial mother engaged in several relationships since the divorce, but the chancellor found this insufficient to establish a material change warranting modification of custody due to the lack of evidence of any adverse effects on the children and when considered in light of the guardian ad litem's report finding that both parents' homes were fit.).
The Mississippi Volunteer Lawyers Project's web site, www.mvlp.net, provides a source for finding assistance in civil cases where financial need exists.
¶ 52. When we first reviewed this case on appeal, we found the chancellor's findings in a letter opinion insufficient to determine if the chancellor had abused her discretion in her application of the Albright factors. The case presented a particularly troublesome appellate review, as it contained only the limited factual analysis provided in the chancellor's abbreviated letter opinion to guide us, and as the record reflected evidence of domestic violence. Our review was limited in the following areas: whether the evidence supported the findings as to the various Albright factors; whether the chancellor determined that Alex had overcome the statutory rebuttable presumption against granting custody to a parent with a history of domestic violence; and also whether any consideration was given to this statutory presumption.
Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).
Mississippi Code Annotated section 93-5-24(9) (Rev. 2004).
¶ 53. In our review of determining whether the chancellor abused her discretion in this case, we evaluate whether evidentiary support exists for the chancellor's findings. Robison v. Lanford, 841 So.2d 1119, 1122 (¶ 9) (Miss. 2003). The record in this case presented conflicting evidence, and the chancellor's award of custody to Alex was not clearly supported by the evidence upon review. As a result, supplemental findings were necessary so that we could review the chancellor's consideration of the statutory presumption applicable to domestic abuse cases as well as the chancellor's findings of fact and weighing of Albright factors. We, therefore, remanded this case to the chancellor to provide supplemental findings of fact and conclusions of law as required by Powell v. Ayars, 792 So.2d 240, 244-45 (¶¶ 10-11) (Miss. 2001) and Albright, 437 So.2d at 1005.
¶ 54. The supplemental findings fail to address evidence in the record impacting upon the parental and mental fitness of Alex. The omission of the consideration of the impact of Alex's parental and mental fitness on the children causes concern about the welfare and safety of the children. A review of the record and Alex Brumfield's assertions raise fear that the award of custody was based upon marital fault, namely Heather Brumfield's alleged adultery, instead of the best interests of the children, as exemplified by properly weighing the Albright factors. We must acknowledge that the Mississippi Supreme Court established that an award of custody of children cannot be based upon the adultery of a parent unless the conduct negatively affected the children. Brekeen, 880 So.2d at 284 (¶ 6); Carr v. Carr, 480 So.2d 1120-23 (Miss. 1985); Weeks v. Weeks, 989 So.2d 408, 412 (¶ 16) (Miss.Ct.App. 2008). The chancellor's initial letter opinion provides that if Heather had turned to Alex for support during her recent depression, instead of away from him, she would have been more successful in dealing with her problems. This comment appears to reflect upon marital fault instead of the issue of custody. Therefore, to ensure that the proper factors were considered by the chancellor in determining custody, I submit that we remand this case to the chancellor to appoint a guardian ad litem to assist the chancellor in ascertaining the best interests of the children amidst the cloud created by the failings of both parents as spouses. The guardian ad litem can assist in evaluating all of the issues affecting the children's best interests and welfare.
Alex's allegations regarding Heather's affairs fail to constitute a basis for consideration for custody unless evidence shows that the conduct affected the children. See Brekeen v. Brekeen, 880 So.2d 280, 284 (¶ 6) (Miss. 2004). The record appears skimpy on any alleged adultery, and the only such relationship with any evidentiary legs occurred after the couple's separation and reflected no impact on the children. Adultery indeed constitutes a ground for divorce and shows a failure in the spousal relationship. Miss. Code Ann. § 93-5-1 (Supp. 2009). However, such allegations or evidence of adultery cannot form the basis of a custody decision without evidence of impact upon the children. Brekeen, 880 So.2d at 284 (¶ 6). No such evidence exists in this case.
¶ 55. The record before us contains no actual evidence of any alleged adultery occurring while Alex and Heather lived together. The record does contain evidence of one adulterous relationship occurring after the parties' separation. The record fails to show that the relationship caused any negative impact on the children, and Heather denied the occurrence of the relationship. The record is nonetheless replete with Alex's assertions that Heather had committed adultery. The record also contains evidence as to the lifestyle of Heather's mother, Debbie Sue Harris, in support of Alex's quest for custody. Both Heather and her mother admitted at trial that Debbie cohabited with a long-time boyfriend. This examination seems to allege that Heather's mother engaged in a morally "improper" monogamous relationship without benefit of marriage. In light of Mississippi case law, the relevance of any evidence to a romantic relationship of a grandparent appears quite suspect unless a negative impact on the children is shown. Brekeen, 880 So.2d at 284 (¶ 6). Certainly Debbie's actions are not imputed to Heather, and even if such actions were imputed to Heather, they fail to satisfy a legally proper basis for an award of custody in accordance with precedent without evidence of some adverse impact on the children. I am concerned, however, that the attempts to raise the marital fault issue of adultery and to raise the issue of Debbie's lifestyle constitutes an attempt to paint Heather as a bad person in an effort to show that she is morally unsuitable to receive custody of the children. Punishment of the offending spouse also fails to serve as a sufficient basis for an award of custody. Albright, 437 So.2d at 1005.
During oral argument, Heather's counsel asserted that he feared that the chancellor possessed a bias toward Heather due to evidence heard in an unrelated case. However, the record before us contains no evidence of bias or matters pertaining to an unrelated case.
Precedent has allowed marital fault to be considered in the equitable division of assets, but not child custody. The polestar consideration in child-custody decisions remains the best interests of the children. Albright, 437 So.2d at 1005.
¶ 56. My concern that impermissible considerations formed the basis for this custody award arise from not only the repeated use of marital fault by Alex in his efforts as a basis to award custody to Alex, but my concern is also raised by the evidence presented showing the defects in Alex's parental fitness and mental health, which were not encompassed within the chancellor's findings. The chancellor awarded custody to Alex, even though he previously had pled guilty in justice court, as noted above, to domestic violence stemming from an incident in which he had beaten Heather with a belt in front of the children. Evidence in the record also reflects testimony that Alex consumes beer almost daily and becomes hostile after consuming too much alcohol. Additional evidence of Alex's violent temper appears in the record, such as his irrational anger over having his jeans folded and placed on top of the dryer, instead of hanging them in his closet. The record also shows that Alex would give or throw away the children's toys or would put the toys in the attic because he did not want a messy house. Alex also testified that he sleeps in the same bed with his daughters. The record contains testimony that Alex wanted nothing to do with the pregnancy or raising of his third child, and this child was confused as to her father's feelings towards her. The parenting behavior of Alex and evidence in the record pertaining to his temper and alcohol consumption raise concern in light of the previously noted physical abuse of Heather in front of the children. The record shows that Alex even testified that the girls would be better off with their mother. Recognizing that the parents may seek what lies in his or her best interest as opposed to their children's best interests, a guardian ad litem could assist the chancellor in evaluating these issues pertaining to the parental fitness of each and then provide recommendations to assist the chancellor.
¶ 57. In her supplemental findings, the chancellor commented upon yet another subsequent incident of domestic violence. A justice court sentencing order contained in the record reflects that this subsequent incident pertains to stalking and telephone harassment. The parties' counsel referenced this subsequent incident during oral argument before this Court. Such evidence as noted in the justice court's sentencing order raises concerns as to the provisions for the children's safety and best interests and the need for evaluation of Alex's parental fitness and mental fitness, particularly as to Alex's temper and alcohol consumption.
Counsel for the parties referenced this subsequent incident mentioned in the chancellor's supplemental findings and asserted that the incident involved alcohol and threats upon exchange of the children. However, we are limited to the record, which contains the chancellor's reference discounting the subsequent incident. The documentation from justice court reflects a sentencing order for stalking and telephone harassment, with instructions for the exchange of the children.
As previously noted, this order was remanded to the file upon request that the exchanging of the children occur at the sheriff's office.
¶ 58. Heather asserted that the chancellor failed to weigh the Albright factors, and had the factors been properly weighed, physical custody would have been awarded to Heather. The evidence clearly showed that Heather was the primary caretaker of the four children and that while fulfilling her duty as primary care-taker, she also attended school fulltime in order to obtain a teaching degree, with little to no assistance from Alex. The record showed that Alex was generally unsupportive, and he told Heather that she was not smart enough to get her degree. Heather testified that Alex considered caring for the home and children to be a woman's job and, thus, Heather's responsibility. Alex's testimony showed that Heather paid the children's school and medical expenses, worked a full-time job, and kept the house for six people. Upon the death of her father in 2005, she suffered emotional depression. Heather required the help of others to attend to the demands and needs of her four children. Again, displaying a lack of support, Alex refused to take Heather to the mental-health professional for treatment, leaving others to step in and assist.
¶ 59. In support of awarding physical custody to Alex, the chancellor found that Heather's emotional problems stemming from her father's death negated that Heather had been the primary caretaker for the children up to that point; thus, she held that this factor favored Alex. The chancellor's findings noted that Heather testified that she had recovered from her father's death, but Heather had not returned to the level of performance prior to his death. However, in addressing Alex's moral or mental fitness, the findings contain no references to his alcohol consumption or anger issues. Testimony showed that Heather had overcome her prior depression, and she no longer required medical care or medication. The record shows that Heather was working as a teacher. The chancellor additionally observed that Heather had enjoyed an undeniably close relationship with her children. The evidence further showed that Heather attended church every Sunday and taught Girls in Action, a mission group for young girls, on Wednesday nights; and Alex attended church about once per month.
I also note that the chancellor found that Alex was more capable and willing to provide for the children, yet scolded him for failing to abide by a court order to pay temporary support.
Oddly, the chancellor's earlier letter opinion commented that Heather should have turned to her husband in her time of suffering during her depression after the loss of her father. This comment pertains to breakdown of the marital relationship, but not to custody determinations. This comment also contains assumptions as to Alex's ability to provide spousal emotional support. Testimony shows that: Alex failed to support Heather's treatment by a mental-health professional; Alex refused to support the pregnancy and birth of their third child; and Alex mocked Heather's attempts to get an education.
¶ 60. Alternatively, the record reflects no evidence that Alex has ever received any counseling for his alcohol consumption, anger, or parenting skills. The pattern of Alex's problems sends a message that seeking professional help will cause a stigma. I note that children are often left at risk when courts ignore substance abuse and anger issues in evaluating parental mental fitness. Parents who refuse to seek help or refuse to acknowledge a problem or addiction, despite a pattern of negative harmful parental behavior, are thereby rewarded.
¶ 61. With respect to stability and employment, the record shows that Heather is employed as a teacher in Pike County. She changed teaching jobs because the principal at her previous school was Alex's relative and caused contention in her employment. Heather nonetheless obtained another teaching job in the same geographic area in southwest Mississippi. She and Alex both now work in the same county, and Alex works at the school where Heather proposes to place the children should she be awarded custody. The chancellor's findings fault Heather for leaving the marital home and relinquishing any claim for ownership or possession of the house in the divorce and asserts that her job changes were irresponsible. The findings assert that the children would lose their home, church, school and their friends in addition to the loss of their parents' marriage. However, the record reflects that even though Heather proposes to place the children in school in Pike County, they would not be uprooted from all they know. The record shows Heather intends to remain in the same geographic area in southwest Mississippi with stable employment and that the children would attend the school where their father works.
¶ 62. In turning to the statutory presumption set in place when a parent seeking custody of a child has a history of perpetrating family violence, the evidence in the record of Alex's violent conduct must be addressed in any award of custody to him to ensure the best interests of the children are served. Since the primary concern is the safety of children, the Legislature codified factors for chancellors to consider in awarding custody when domestic violence is present. See Miss. Code Ann. § 93-5-24(9). In so doing, the Legislature created a rebuttable presumption against an award of custody to a parent with a history of domestic violence. Id. See, e.g., Lawrence v. Lawrence, 956 So.2d 251, 262-63 (¶¶ 41-43) (Miss.Ct.App. 2006); Cockrell v. Watkins, 936 So.2d 970, 973 (¶¶ 10-14) (Miss.Ct.App. 2006); C.W.L. v. R.A., 919 So.2d 267, 271-72 (¶¶ 13-17) (Miss.Ct.App. 2005). The chancellor must evaluate these factors in determining whether the evidence sufficiently rebuts the presumption against awarding custody to the parent with a history of domestic violence. The Mississippi Supreme Court embraced the rebuttable presumption created by this statute, which is intended to protect the often voiceless child in dispute in a divorce, and the court has applied its requirements to cases in which evidence of domestic violence exists. See J.P. v. S.V.B., 987 So.2d 975, 981-82 (¶ 16) (Miss. 2008). We, therefore, embrace precedent in applying the rebuttable presumption against awarding custody to a parent with a history of domestic violence.
Section 93-5-24(9)(a)(iv) requires written findings to show consideration of the enumerated factors in evaluating the evidence as to whether the presumption was overcome. See J.P., v. S.V.B., 987 So.2d 975, 981 (¶ 16) (Miss. 2008). In so doing, the supreme court acknowledged that the court, like the chancellor, possessed a duty to make the best interest of the child the polestar consideration. Id. The supreme court certainly possesses the authority to establish precedent for lower courts to follow.
Section 93-5-24(9)(d)(i) suggests actions that a court may take in determining visitation orders to ensure a protected setting. The statute further provides that the chancellor may award visitation to the parent with a history of domestic violence only if adequate provisions are made for the safety of the children as well as the parent who was a victim of domestic or family violence. Id. The actions include ordering "the perpetrator of domestic or family violence to attend and complete to the satisfaction of the court a program of intervention for perpetrators or other designated counseling as a condition of visitation." Miss. Code Ann. § 93-5-24(9)(d)(ii)(3).
A history of family violence includes a pattern of violence or one incident resulting in serious bodily injury. See Deborah H. Bell, Bell on Mississippi Family Law § 5.01[4][c] at 95 (2005). If the presumption is raised and not rebutted, custody should be awarded to the nonviolent parent without consideration of the Albright factors, id. In the present case, the chancellor's initial findings were set forth in a letter opinion, but it did not provide any analysis as required by Powell and Albright. Heather asserted that the chancellor failed to weigh the Albright factors, and she claimed that had the factors been weighed, physical custody would have been awarded to her.
¶ 63. The Mississippi Supreme Court has held that a failure to specifically address each factor in section 93-5-24(9)(a)(iii) may likely result in reversal unless the record before the court can "safely say that while the chancellor did not specifically refer in writing to all the factors enumerated in her judgment, she no doubt considered those factors in making the custody determination." J.P., 987 So.2d at 981-82 (¶ 16). In the present case, I submit that factually, the evidence does not substantially support the chancellor's finding that Alex rebutted the presumption against awarding custody to a perpetrator of family violence. See Deborah H. Bell, Bell on Mississippi Family Law § 5.01[4][c] at 95 (2005).
¶ 64. I recognize that the standard of review in child-custody cases is narrow, and "[r]eversal of a chancellor's judgment requires that the chancellor be manifestly wrong or have `applied an erroneous legal standard.'" Robison, 841 So.2d at 1122 (¶ 9). Further, "[a]n appellate court is to affirm findings of fact by chancellors in domestic cases when they are `supported by substantial evidence, unless the chancellor abused her discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.'" Id. The chancellor must "ascertain whether witnesses and evidence are credible and the weight to give each." Id. With these standards in mind, the court in Robison cautioned the appellate courts to remember that they also bore the responsibility, like the chancellor, to make the best interest of the child the polestar consideration. Id.
¶ 65. I am not convinced that the evidence supports a finding that Alex over-came the rebuttable presumption against awarding custody to a parent with a history of domestic violence. In acknowledgment of the difficulty faced by a chancellor in determining custody, I also fear that the issues of marital fault in this case clouded the proper analysis of the Albright factors in determining the best interests of the children. Therefore, in light of the responsibilities set forth above, I would reverse the chancellor's judgment and remand this case to the chancellor for appointment of a guardian ad litem to assist the chancellor in determining the best interests of the children for purposes of the custody determination.