Blevins v. Bardwell – Mississipi, 2001
This case concerns a mother and father who were never married. The mother re-enlisted in the military, but in order to do so she had to give custody of their daughter to someone else. At the time, both parents planned to marry once the mother had finished her military training, and it was also agreed that the transfer of custody to the father was only temporary.
After some time, the mother and father ended their relationship. When the mother was assigned to an air force base in San Antonio, Texas, she decided that she wanted to take the daughter with her. The father refused to allow her to do so, as he had custody at the time. When the case went to court, joint legal custody was established with the mother as the primary custodian and the father granted visitation and ordered to pay child support.
The father appealed the judgment. In the appeal, the court answered the following questions:
- Did the trial court correctly determine that the [original] custody agreement was temporary?
- Did the trial court properly apply the Albright factors to the evidence presented at trial?
- Did the trial court use custody determination to penalize Adam Blevins, and if so applied, was it manifestly erroneous?
In the first question, it was determined that, although the original grant of custody by the mother to the father did not state that it was temporary, both parents agreed at the time that it was temporary and so it could therefore be treated as temporary and thus be revisited in court.
The Albright factors referred to here are a list of criteria that are used in Mississippi for purposed of determining the best interests of a child in custody cases. The best interests of the child are the primary concern of all child custody cases. The Albright factors are as follows:
- age, health and sex of the child
- determination of the parent that had the continuity of care prior to the separation
- which parent has the best parenting skills and which has the willingness and capacity to provide primary child care
- the employment of the parent and responsibilities of that employment
- physical and mental health and age of the parents
- emotional ties of the parent and child
- moral fitness of the parents
- the home, school and community record of the child
- the preference of the child at the age sufficient to express a preference by law
- stability of home environment and employment of each parent
- other factors relevant to the parent-child relationship
In this case, only a handful of factors were contested in the appeal.
The father argued that the child’s age (under 2 years) was given undue weight, as the mother had voluntarily granted him custody when she entered the military. The appeals court found that, while the previous court may or may not have given this factor undue weight, it could not be shown that it was “manifestly wrong, clearly erroneous, or the result of the application of an erroneous legal standard.”
The father claimed that the court gave the mother an edge in health because the father smokes and that the court did not correctly consider the mother’s health records, specifically regarding a couple of mental health issues that the mother had in 1996, before the daughter was even born. Apparently the mother had some issues with depression and trouble adjusting when she originally joined the military, and the father was trying to use these issues to show that she was an unfit parent. The original court found that these issues didn’t have bearing on the mother’s current ability to care for the child, and the appeals court found that these factors had been properly considered.
Finally, we get to the part that seems to have merited this case’s inclusion on The Volokh Conspiracy’s list:
The Court slightly favors Dawn when considering Darby’s future religious example. Although Adam does at times pray with Darby and has attended a non-denominational `house of prayer’, Dawn seems much more committed and consistent in her Catholic upbringing.
It turns out that both parents in this case are at least nominally Catholic, although the father complained that there is no evidence of the mother being especially committed to her faith. His argument is that the mother never went to church or took the child to church while living in Mississippi. Additionally he complains that the mother’s committing adultery (with him, by the way) while married is against Catholic beliefs.
The mother says that the original court made the right choice, pointing out that the father says he’s Roman Catholic but admits that he doesn’t attend church at all. The father “also testified that he thought religion was important and that if he received custody he would send her to a private Catholic school.”
The appeals court had this to say on the matter:
Future religious example” is not a factor listed in Albright, although it could theoretically fall within “other factors relevant to the parent-child relationship” or under “moral fitness of the parents” as found in Albright. Albright, 437 So.2d at 1005. This Court, in McLemore v. McLemore, 762 So.2d 316, 320 (Miss. 2000), stated “[b]oth the mother and father should be vitally interested in seeing that their children get regular and systematic spiritual training. Whether it be by attending Sunday School each Sunday or Church or both is for the parents alone to decide.” The Chancellor did not abuse her discretion when considering future religious example in the custody determination of Darby.
My opinion is that the court was faced with a situation where both parents (1) claimed that religion was important to the; (2) tried to show in court that they were best suited to provide the child with religious upbringing; and (3) willfully put the determination in the hands of the court. The court made a decision, and the father is unhappy with that decision. In this case, I would also say that it’s difficult to even determine which parent was in actuality the less religious parent, as both parents claim to be religious and claim to have plans to raise their child in the Catholic faith.
The court probably could have decided either way, and likely would not have figured this into the decision at all if it was not brought to the court by the parents themselves. In any case, this was not the determining factor of the case. The father was not denied custody because he was less religious; he was denied custody based upon an assessment of all of the evidence presented.
The next point the father contested was that the mother’s home environment was judged better, claiming that the court focused to much on the fact that the father lived with his disabled father, an HIV-positive hemophiliac with terminal cancer. However, the main objection to this living situation was not the grandfather’s HIV-positive status; rather the objection was that both the father and grandfather smoked, with the grandfather smoking 4 packs of cigarettes a day, creating an unhealthy environment for a child to live in. The father would also sometimes leave the child at home alone with the disabled grandfather, which counted against the father.
The appeals court found that there as no clear error or abuse of discretion in the original court’s judgment of the Albright factors.
The next issue the father raises is that the court was basically punishing him for two reasons: (1) that he didn’t execute a medical waiver in order that the court could access his medical records and (2) that he (allegedly) was uncooperative with allowing the mother visitation with the daughter prior to trial.
The appeals court had this to say about the medical waiver issue:
What Adam is being penalized for by the Chancellor is for making an agreement with the other party to have both waive their privilege; getting the sought after medical records from the other side; and subsequently deciding to not waive the medical privilege, leaving the other party at a disadvantage. Such conduct by a party should not be condoned or ignored by a Chancellor.
About the visitation issue, the appeals court also found the previous court made no mistakes. The father argued that his failure to allow visitation did not constitute a change that would necessitate a change in custody. The court decided that since there was never a permanent custody agreement to begin with, no material change in circumstances was required to justify a hearing to make a permanent agreement.
Religion or lack thereof was not the deciding factor in this case. To the extent that religion was considered at all, it was because the parents of the child were arguing who was better equipped to provide “future religious example,” leaving the court to decide between them. Under the circumstances, I would not consider this to be out of line on the part of the court, and there is no evidence, explicit or otherwise that the father was specifically discriminated against because of his religious beliefs or lack thereof.
This case has nothing to do with anti-atheist discrimination whatsoever.