Mary Jane Borden v. Edward Shannon Borden
167 So. 3d 238
| Miss. | 2014Background
- Mary Jane and Shannon Borden separated in Aug. 2010; they have two minor sons (b. 2002, 2006). Mary Jane relocated with the children to her parents’ home in Tennessee without informing Shannon.
- Mary Jane alleged possible sexual-abuse-related behavior by the children; a guardian ad litem (GAL) was appointed, investigated, administered polygraphs to both parents (both ‘‘passed’’), found no evidence of abuse, and recommended primary physical custody to Mary Jane after applying the Albright factors.
- The parties entered a temporary agreed order awarding Mary Jane primary physical custody; Shannon later amended to add adultery as a divorce ground and introduced extensive Facebook messages showing Mary Jane’s sexually explicit communications with another man.
- At trial the chancery court denied divorce grounds but awarded primary custody to Shannon, citing three Albright factors as favoring him—moral fitness, parenting skills, and stable home environment—based in substantial part on Mary Jane’s inappropriate extramarital contacts.
- The chancery court acknowledged the GAL’s recommendation but did not include a summary of the GAL’s report or explain in its findings why it rejected the GAL’s custody recommendation.
- On appeal, the Mississippi Supreme Court reviewed whether the chancellor improperly punished Mary Jane for marital misconduct by giving undue weight to her conduct under multiple Albright factors and whether the court erred in failing to summarize and explain rejection of the GAL’s recommendation.
Issues
| Issue | Plaintiff's Argument (Borden) | Defendant's Argument (Borden) | Held |
|---|---|---|---|
| Whether custody was awarded to punish Mary Jane by over-weighting her misconduct under the Albright factors | Chancellor improperly used Mary Jane’s inappropriate conduct as the primary basis for awarding custody to Shannon | Mary Jane’s conduct (explicit sexual communications, meetings) undermined moral fitness, parenting and home stability, justifying custody change | Reversed: court gave undue weight to Mary Jane’s misconduct; one marital-fault-related factor cannot be multiplied across separate Albright factors to punish a parent |
| Whether the chancellor erred by not summarizing the GAL’s report and reasons for rejecting its recommendation | GAL recommended Mary Jane; the chancellor failed to include required summary and reasons for rejection in findings | Chancellor need not adopt GAL recommendation; but court must summarize GAL report and explain rejection when appointment is mandatory | Reversed: chancellor erred by failing to include a summary of the GAL’s recommendation and to state reasons for rejecting it |
Key Cases Cited
- Albright v. Albright, 437 So. 2d 1003 (Miss. 1983) (establishes Albright factors for child-custody best-interest analysis)
- Brekeen v. Brekeen, 880 So. 2d 280 (Miss. 2004) (court may not give undue weight to marital misconduct or punish parent via custody award)
- Hollon v. Hollon, 784 So. 2d 943 (Miss. 2001) (one Albright factor alone cannot control custody; cautions against using custody as sanction)
- Robison v. Lanford, 841 So. 2d 1119 (Miss. 2003) (appellate standard of review for chancellor factfindings in custody cases)
- Floyd v. Floyd, 949 So. 2d 26 (Miss. 2007) (when GAL appointment is mandatory, chancellor must include at least a summary of GAL recommendations)
- S.N.C. v. J.R.D., Jr., 755 So. 2d 1077 (Miss. 2000) (court must state reasons in findings when it rejects a mandatory GAL’s recommendations)