tender years doctrine in Mississippi

2023“However, it is well established that the tender-years doctrine is only a presumption and one of several factors to be considered.” Case v. Case, 339 So. 3d 796 , 804 (¶18) (Miss. 5 Ct. App. 2022) (citing Mercier v. Mercier, 717 So. 2d 304, 307 (¶15) (Miss. 1998)). ¶18.

2017The chancellor also indicated his thorough understanding that the tender-years doctrine “is only one factor out of the numerous Albright factors” and is-not a “presumption that the best interests of the child in general should favor the mother ....” The court further acknowledged that “a child is no longer of tender years when that child can be equally cared for by persons other than the mother.” (Quoting Mercier v. Mercier, 717 So.2d 304, 307 (¶ 15) (Miss. 1998)). ¶ 13.

2024Defining 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)).

2024Defining 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)).

2015She cites the tender-years doctrine, arguing “if the mother of a child of tender years (i.e.[,] early in development) is fit, then she should have custody.” Lee, 798 So.2d at 1289 (¶ 17).

2011The tender-years doctrine “essentially states that if the mother of a child of tender years (i.e., early in development) is fit, then she should have custody.” Id.

2011The Mississippi Supreme Court articulated the current state of the tender-years doctrine in Copeland v. Copeland, 904 So.2d 1066, 1075 (¶34) (Miss. 2004), stating: In Buntyn v. Smallwood, 412 So.2d 236, 238 (Miss.1982), this Court noted that if the mother of a child of tender years is fit, then she should be awarded custody. “[A] child is no longer of tender years when that child can be equally cared for by persons other than the mother.” Mercier v. Mercier, 717 So.2d 304, 307 (Miss.1998).

2011Further, “the supreme court has made clear that the tender-years doctrine has been diminished somewhat in recent years and is no longer absolute.” Montgomery, 20 So.3d at 44 (¶ 22) (citing Copeland v. Copeland, 904 So.2d 1066, 1075 (¶¶ 34-35) (Miss.2004)).

2017To determine whether a young declarant’s out-of-court statement is admissible under the tender-years exception, “the court must determine (1) that the declarant is a child of tender years and (2) that the time, content, and circumstances of the statement provide substantial indicia of reliability.” Veasley v. State, 735 So.2d 432, 436 (¶ 14) (Miss. 1999). “[Tjhei-e is a rebuttable presumption that a child under the age of twelve is of tender years.” Id. at (¶ 16).

2017To determine whether a young declarant’s out-of-court statement is admissible under the tender-years exception, “the court must determine (1) that the declarant is a child of tender years and (2) that the time, content, and circumstances of the statement provide substantial indicia of reliability.” Veasley v. State, 735 So.2d 432, 436 (¶ 14) (Miss. 1999). “[Tjhei-e is a rebuttable presumption that a child under the age of twelve is of tender years.” Id. at (¶ 16).

2017The child was only eight months old at the time of the custody determination, clearly a child of “tender years.” She notes that, even though the tender-years doctrine has been weakened, “there is still a presumption that a mother is generally better suited to raise a young child.” See Passmore v. Passmore, 820 So.2d 747, 750 (¶ 9) (Miss.

2014Although the tender-years doctrine was “significantly weakened” by section 93-5-24(7), “there is still a presumption that a mother is generally better suited to raise a young child.” Passmore v. Passmore, 820 So.2d 747, 750 (¶ 9) (Miss.Ct.App.2002). ¶ 11.

2011The tender-years doctrine has traditionally provided that if a “child is of such tender age as to require the mother’s care for his or her physical welfare, he or she should be awarded to the mother’s custody....” Montgomery v. Montgomery, 20 So.3d 39, 44 (¶ 22) (Miss.Ct.App.2009) (quoting Gilliland v. Gilliland, 969 So.2d 56, 66 (¶ 32) (Miss.Ct.App.2007)).

2010See generally Gilliland v. Gilliland, 969 So.2d 56, 66 (¶ 32) (Miss.Ct.App.2007) (“The tender years doctrine is a presumption that in all cases where any child is of such tender age as to require the mother’s care for [the child’s] physical welfare, [he or she] should be awarded to her custody, at least until [he or she] reaches that age and maturity where [the child] can be equally well cared for by other persons.”).

2006When a circuit court determines whether testimony will be admissible under the tender years exception, the circuit court must assess first whether the *Page 1012 child falls into the category of one who is of "tender years." Marshall v. State , 812 So.2d 1068 (¶ 20) (Miss.Ct.App. 2001).

2006Id.

2002However, while section 93-5-24(7) significantly weakens the tender years doctrine, "there is still a presumption that a mother is generally better suited to raise a young child." Hollon v. Hollon, 784 So.2d 943, 947 (¶ 14) (Miss.2001).

2002In essence, while the father no longer has to prove the mother unfit to rebut the automatic application of the tender years presumption, our courts have determined that along with the rest of the Albright factors, the tender years doctrine is "a factor worthy of weight in determining the best interest of a child." Id. at 947 n. 2.

2008Further, the State filed a cross-appeal asking this Court to overrule Mitchell v. State, 539 So.2d 1366 (Miss. 1989).

1992But cf. Mitchell v. State, 539 So.2d 1366, 1370-1371 (Miss. 1989). [7] Quimby , at 747. [8] Quimby , at 747; See also Sanders v. State, 586 So.2d 792, 794-795 (Miss. 1991); In the Interest of C.B., 574 So.2d at 1373; Leatherwood v. State, 548 So.2d 389, 390-392 (Miss. 1989); Cummins v. State, 515 So.2d 869, 873 (Miss. 1987). [9] In a child abuse case with very similar testimony, this Court in Baine v. State, 606 So.2d 1076 (Miss. 1992), found that Miss.R.Evid. 803(4) and Miss.R.Evid. 803(25) would allow the admission of the testimony if the case were tried on remand. [10] This Court in Griffit

2013The trial court’s error does not warrant reversal, however, because “the weight of the evidence against [Nunnery] is sufficient to outweigh the harm done by allowing admission of the evidence.” Kl auk v. State, 940 So.2d 954, 957 (¶ 7) (Miss.Ct.App.2006).

2012“For the tender-years exception to apply, the child must be of tender years.” Little v. State, 72 So.3d 557, 560 (¶ 10) (Miss.Ct.App.2011) (quoting Klauk v. State, 940 So.2d 954, 956 (¶6) (Miss.Ct.App.2006)). ¶ 6.

1992But cf. Mitchell v. State, 539 So.2d 1366, 1370-1371 (Miss. 1989). [7] Quimby , at 747. [8] Quimby , at 747; See also Sanders v. State, 586 So.2d 792, 794-795 (Miss. 1991); In the Interest of C.B., 574 So.2d at 1373; Leatherwood v. State, 548 So.2d 389, 390-392 (Miss. 1989); Cummins v. State, 515 So.2d 869, 873 (Miss. 1987). [9] In a child abuse case with very similar testimony, this Court in Baine v. State, 606 So.2d 1076 (Miss. 1992), found that Miss.R.Evid. 803(4) and Miss.R.Evid. 803(25) would allow the admission of the testimony if the case were tried on remand. [10] This Court in Griffit

1990See Hosford v. State, supra , Mitchell v. State, 539 So.2d 1366, 1369-70 (Miss. 1989) and Leatherwood v. State, 548 So.2d 389, 399 (Miss. 1989). [16] To evaluate the effect of the evidence that Sonya had no hymenal ring when Dr. Chidester examined her, we sought to review the prosecution's final argument to the jury.

2007In Albright, 437 So.2d at 1005 , the court stated: "Age should carry no greater weight than other factors to be considered." In Lee v. Lee, 798 So.2d 1284, 1289 (¶ 17) (Miss.2001), the Mississippi Supreme Court stated: "the age and sex of a child are merely factors to be considered under Albright , and this Court has significantly weakened the once strong presumption that a mother is generally best suited to raise a young child." Furthermore, in Torrence v. Moore, 455 So.2d 778, 780 (Miss.1984) (citing Duncan v. Duncan, 119 Miss. 271 , 80 So. 697 (1919)), in discussing the tender years doctrin

2001Adam asserts that the tender years doctrine, even at its prime, only applied until "[the child] reaches that age and maturity where it can be equally cared for by other persons." Albright, 437 So.2d at 1004 (citing Johns v. Johns, 57 Miss. 530 (1879)). ¶ 21.

2011Elkins v. State, 918 So.2d 828, 833 (Miss.Ct.App. 2005).

2006While not directly on point to the present matter, in Elkins v. State, 918 So.2d 828 (Miss.Ct.App.2005), the defendant argued that, pursuant to Crawford , a trial court violated his right to confront the witnesses against him when it allowed a witness to testify under the tender years exception.

2021Sobieske v. Preslar, 755 So. 2d 410, 413 (Miss. 2000) “Today, the age of the child is simply one of the factors that we consider in determining the best interests of the child.” Id. (quoting Mercier v. Mercier, 717 So. 2d 304, 307 (Miss. 1998)).

2021Sobieske v. Preslar, 755 So. 2d 410, 413 (Miss. 2000) “Today, the age of the child is simply one of the factors that we consider in determining the best interests of the child.” Id. (quoting Mercier v. Mercier, 717 So. 2d 304, 307 (Miss. 1998)).

2022Id. 7 Bays as the person who molested her.

2020Friday v. State, 217 So. 3d 759, 764 (¶18) (Miss.

2021However, “over the years, the tender-years doctrine has been diminished and is now only a presumption.” Smith v. Smith, 206 So. 3d 502, 513 (¶26) (Miss. 2016) (citing Law).

2018However, "over the years, the tender-years doctrine has been diminished and is now only a presumption." Smith v. Smith , 206 So.3d 502 , 513 (¶ 26) (Miss. 2016) (citing Law ).

2005McGowan v. State, 742 So.2d 1183, 1187 (¶ 18) (Miss.Ct.App.1999).

2004Marshall v. State, 812 So.2d 1068, 1075 (¶ 20) (Miss.App.Ct.2001); McGowan v. State, 742 So.2d 1183, 1186 (¶ 17) (Miss.App.Ct.1999). ¶ 19.

2018Although the chancellor did not expressly name the tender-doctrine in his opinion, we recognize that “[a]ccording to the tender-years doctrine, if a child is of such tender age as to require the mother’s care for [her] physical welfare, [she] should be awarded to the mother’s custody.” Montgomery v. Montgomery, 20 So. 3d 39, 44 (¶22) (Miss.

2018Although the chancellor did not expressly name the tender-doctrine in his opinion, we recognize that "[a]ccording to the tender-years doctrine, if a child is of such tender age as to require the mother's care for [her] physical welfare, [she] should be awarded to the mother's custody." Montgomery v. Montgomery , 20 So.3d 39 , 44 (¶ 22) (Miss.

2018Id. at 109 (¶¶ 12-13).

2018Id. at (¶ 12). ¶ 7.

2017This Court reviews evidentiary rulings for an abuse of discretion, which may be found only if the decision is not supported by substantial credible evidence or where “the reviewing court has a definite and firm conviction that the court below committed a clear error of judgment and [in the] conclusion it reached upon a weighing of the relevant factors.” Withers, 907 So. 2d at 345 (¶7) (citation and quotations omitted). ¶13.

2012This issue 34 Id. at 125 . 35 Id. 36 Id. 37 Hobgood, 926 So. 2d at 851-52 (approving the admission of testimony from six witnesses regarding the victim’s allegations); Smith v. State, 925 So. 2d 825, 830-32 (Miss. 2006) (approving the admission of testimony from six witnesses regarding the victim’s allegations); Withers v. State, 907 So. 2d 342, 344, 348-49 (Miss. 2005) (approving the admission of testimony from seven witnesses regarding the victim’s allegations). 13 is without merit.38 Finding no reversible error, we affirm the judgment of the Pearl River Circuit Court. ¶21.

2016As T.J. testified at trial after the trial court conducted a hearing outside the presence of the jury, “the sole issue is whether the ‘time, content, and circumstances of the statement provide substantial indicia of reliability.’ ” Smith v. State, 925 So.2d 825, 837 (Miss.2006).

2012This issue 34 Id. at 125 . 35 Id. 36 Id. 37 Hobgood, 926 So. 2d at 851-52 (approving the admission of testimony from six witnesses regarding the victim’s allegations); Smith v. State, 925 So. 2d 825, 830-32 (Miss. 2006) (approving the admission of testimony from six witnesses regarding the victim’s allegations); Withers v. State, 907 So. 2d 342, 344, 348-49 (Miss. 2005) (approving the admission of testimony from seven witnesses regarding the victim’s allegations). 13 is without merit.38 Finding no reversible error, we affirm the judgment of the Pearl River Circuit Court. ¶21.

2012Articulating the current state of the tender-years doctrine, the supreme court explained: In Buntyn v. Smallwood, 412 So.2d 236, 238 (Miss.1982), this Court noted that if the mother of a child of tender years is fit, then she should be awarded custody.

2011The Mississippi Supreme Court articulated the current state of the tender-years doctrine in Copeland v. Copeland, 904 So.2d 1066, 1075 (¶34) (Miss. 2004), stating: In Buntyn v. Smallwood, 412 So.2d 236, 238 (Miss.1982), this Court noted that if the mother of a child of tender years is fit, then she should be awarded custody. “[A] child is no longer of tender years when that child can be equally cared for by persons other than the mother.” Mercier v. Mercier, 717 So.2d 304, 307 (Miss.1998).

2009“The ‘tender years’ doctrine has not been completely abandoned by our court, but age is merely one factor to be considered in a best-interest analysis.” Masino v. Masino, 829 So.2d 1267, 1271 (¶ 15) (Miss.Ct.App.2002). ¶ 9.

2003Masino v. Masino, 829 So.2d 1267, 1271 (¶ 15) (Miss.Ct.App.2002); Gutierrez v. Bucci, 827 So.2d 27, 31 (¶ 17) (Miss.

2007Blevins v. Bardwell, 784 So.2d 166, 173 (¶ 25) (Miss.2001). ¶ 33. "[A] child is no longer of tender years when that child can be equally *67 cared for by persons other than the mother." Mercier v. Mercier, 717 So.2d 304, 307 (Miss.1998).

2002Even if the children are of the age to which the tender years doctrine might apply, the doctrine "is but one factor out of many to be considered in a child custody case." Blevins v. Bardwell, 784 So.2d 166, 173 (Miss.2001).

1992But cf. Mitchell v. State, 539 So.2d 1366, 1370-1371 (Miss. 1989). [7] Quimby , at 747. [8] Quimby , at 747; See also Sanders v. State, 586 So.2d 792, 794-795 (Miss. 1991); In the Interest of C.B., 574 So.2d at 1373; Leatherwood v. State, 548 So.2d 389, 390-392 (Miss. 1989); Cummins v. State, 515 So.2d 869, 873 (Miss. 1987). [9] In a child abuse case with very similar testimony, this Court in Baine v. State, 606 So.2d 1076 (Miss. 1992), found that Miss.R.Evid. 803(4) and Miss.R.Evid. 803(25) would allow the admission of the testimony if the case were tried on remand. [10] This Court in Griffit

1992But cf. Mitchell v. State, 539 So.2d 1366, 1370-1371 (Miss. 1989). [7] Quimby , at 747. [8] Quimby , at 747; See also Sanders v. State, 586 So.2d 792, 794-795 (Miss. 1991); In the Interest of C.B., 574 So.2d at 1373; Leatherwood v. State, 548 So.2d 389, 390-392 (Miss. 1989); Cummins v. State, 515 So.2d 869, 873 (Miss. 1987). [9] In a child abuse case with very similar testimony, this Court in Baine v. State, 606 So.2d 1076 (Miss. 1992), found that Miss.R.Evid. 803(4) and Miss.R.Evid. 803(25) would allow the admission of the testimony if the case were tried on remand. [10] This Court in Griffit

2012Id.

2012This issue 34 Id. at 125 . 35 Id. 36 Id. 37 Hobgood, 926 So. 2d at 851-52 (approving the admission of testimony from six witnesses regarding the victim’s allegations); Smith v. State, 925 So. 2d 825, 830-32 (Miss. 2006) (approving the admission of testimony from six witnesses regarding the victim’s allegations); Withers v. State, 907 So. 2d 342, 344, 348-49 (Miss. 2005) (approving the admission of testimony from seven witnesses regarding the victim’s allegations). 13 is without merit.38 Finding no reversible error, we affirm the judgment of the Pearl River Circuit Court. ¶21.