author: LAMAR, Justice, KITCHENS, Justice, PIERCE, Justice,

text:
    In the Matter of the DISSOLUTION OF the MARRIAGE OF James LEVEROCK AND Deanna HAMBY: Brent Keith Pendleton and Kim Renee Pendleton v. James Anthony Leverock.
    No. 2008-CA-00093-SCT.
    Supreme Court of Mississippi.
    Dec. 8, 2009.

      Renee M. Porter, attorney for appellants.
    Brandon L. Brooks, Shirlee Fager-Bald-win, attorneys for appellee.
   LAMAR, Justice,

for the Court.

¶ 1. Zachary Tyler Leverock (Zach) was born to Deanna Hamby and James Anthony Leverock (Tony). Upon the couple’s separation, Deanna and Zach moved in with her foster parents, the Pendletons. For the following two and a half years, Zach lived with the Pendletons with no contact from Tony. Deanna died in a car accident, and at her funeral, Tony told the Pendletons that he eventually wanted to take Zach back to Florida with him. The Pendletons filed a complaint for emergency temporary custody, termination of parental rights, and for custody. A trial was held, and Tony received custody of Zach.

¶ 2. The Pendletons assert that the chancery court erred by refusing to: (1) terminate Tony’s parental rights; (2) award the Pendletons custody after finding the best interests of the child would be to remain in their care; (3) grant visitation; and (4) deem requests for admission admitted despite an untimely response.

FACTS

¶ 3. Tony and Deanna met while they were enrolled in the Job Corps program. The two married on May 24, 2002. Tony enlisted in the Army, and they moved to Fort Bragg, North Carolina. Deanna gave birth to the couple’s son, Zach, on May 18, 2003, while Tony was serving in Iraq. He returned from overseas when Zach was approximately four months old. Three months later, on January 6, 2004, the couple separated, and Deanna and Zach returned to Mississippi.

¶ 4. Deanna and Zach moved into the house with her foster parents, Brent and Kim Pendleton, who began serving as Deanna’s foster parents when she was sixteen years old. Deanna lived with the Pendle-tons sporadically upon her return from Fort Bragg, but Zach lived almost exclusively with the Pendletons from that time until custody was awarded to Tony in November 2007.

¶ 5. Soon after Deanna returned to Mississippi, Tony was “other than honorably discharged” from the Army for failing repeated drug tests. He went back to his hometown of Jacksonville, Florida, and moved in with his girlfriend Jennifer Cooper, Jennifer’s mother, her mother’s boyfriend, and her sister. Tony and Jennifer had a child on May 24, 2005. He remained legally married to Deanna at that time.

¶ 6. Tony admitted that he had no contact with Zach from the time Zach left Fort Bragg in January 2004, until May 2006, except for a few moments in June 2004, when Deanna traveled to Florida to give Tony divorce papers. According to the divorce papers, Deanna was to have full legal and physical custody of Zach with Tony having reasonable visitation. Tony also agreed to pay child support in the amount of $350 per month. The divorce papers were not filed until January 2006, and the divorce was never granted. Tony did not exercise any visitation nor did he pay any child support as specified in the divorce petition and agreement.

¶ 7. Tragically, on May 13, 2006, Deanna was killed in a car accident in Laurel, Mississippi. Tony came to her funeral and asked the Pendletons if he could see his son. Zach did not recognize his father. After Deanna’s funeral, Tony indicated to the Pendletons that he was interested in forging a relationship with the child. Tony testified that he simply wanted to start spending time with Zach, and when Zach knew who his real father was, he wanted to take him back to Florida. On May 18, 2006, the Pendletons filed a complaint for emergency temporary custody and termination of Tony’s parental rights. Shortly after returning from Deanna’s funeral, Tony moved with his girlfriend and their child into the home of his father and stepmother in Florida.

¶ 8. On May 22, 2006, the chancery court awarded temporary custody to the Pendle-tons, finding that they had been the primary caretakers of Zach for more then two years, and it was in Zach’s best interests for the Pendletons to be vested with temporary custody. On July 25, 2006, the court appointed a guardian ad litem (GAL), ordered Tony to begin paying child support, and indicated that once the GAL had evaluated Zach, a visitation schedule would be set. The chancellor then devised a visitation schedule that gradually increased visitation from a few hours every other weekend in Purvis, Mississippi, to two-week-long visitations in Florida.

¶ 9. At trial, the Pendletons presented nine witnesses in support of their contention that Tony had abandoned his son and that a substantial erosion of the relationship had occurred. Tony's mother, sister, and stepfather testified in favor of the Pendletons. Tony, his father, and Dr. Pat Galloway, a family counseling expert, testified in favor of Tony. The GAL also testified.

¶ 10. Tony admitted that he had never paid any child support, had never sent any type of birthday or Christmas present, nor had he attempted to exercise any type of visitation since his wife had left Fort Bragg, until the time he came to her funeral, approximately two and a half years later. He maintained at trial that he did not know where Deanna was living, that he had been unable to get in touch with her, and that he had never sent money or gifts because he did not know where to send them.

¶ 11. Tony’s mother and sister both testified that they had been in continuous contact with the Pendletons, Zach, and Deanna from the time Deanna and Tony had separated. This contact consisted of visits to Mississippi as well as paying for Deanna and Zach to visit them in Florida. Tony’s mother indicated she regularly had encouraged Tony to be more involved with his child, but he had refused. She also testified that she had told Tony where Zach was living and how to contact him and the Pendletons. Tony’s paternal grandparents were also involved with Zach and went to visit Zach at the Pendletons’ residence several times a year. Tony’s mother, sister, and grandparents all described a close, parent-child relationship between the Pendletons and Zach. Tony’s father, with whom he lived after moving out of his girlfriend’s house, painted a different picture of the Pendletons. He stated that the Pendletons were uncooperative the one time he attempted to call them and check on Zach.

¶ 12. Evidence was presented that Zach was not easily coping with the increased contact with his father and that the Pen-dletons had been taking him to therapy as the visitation schedule allowed. Zach’s counselor testified for the Pendletons, claiming that Zach was afraid of Tony’s stepmother because she allegedly had slapped him. Tony and his father denied that Zach was having trouble adjusting to the prolonged visitation in Florida. The GAL and the family counseling expert both testified that Tony had shown improvement in his parenting skills and should be allowed to regain custody of Zach.

¶ 13. On November 9, 2007, the chancellor found that the custody, support, and property settlement agreement did not reflect any intention by Tony to irrevocably abandon Zach before Deanna’s death. He also noted Tony’s actions after Deanna’s death in restoring his relationship with Zach. The chancellor adopted the recommendations of the GAL and Dr. Galloway that Zach be returned to his father. The Pendletons appeal this decision by the chancellor.

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN REFUSING TO TERMINATE THE NATURAL FATHER’S PARENTAL RIGHTS.

¶ 14. Appellate review in a case to terminate parental rights is the manifest error/substantial credible evidence test. S.N.C. v. J.R.D., Jr., 755 So.2d 1077, 1080 (Miss.2000). As long as there is credible evidence to support the chancellor’s findings of fact, we must affirm the decision. K.D.F. v. J.L.H., 933 So.2d 971, 976-77 (Miss.2006). “We will examine the case de novo, however, when it is clear that the chancery court’s decision resulted from a misunderstanding of the controlling law or was based on a substantially erroneous view of the law.” R.L. v. G.F., 973 So.2d 322, 324 (Miss.Ct.App.2008).

¶ 15. The Pendletons requested that the chancellor find abandonment and/or unfitness, terminate Tony’s parental rights, and award them custody. In refusing to terminate the father’s parental rights, the chancellor referenced Mississippi Code Section 93-15-103 which addresses adoption, not custody, and provides, in relevant part, that:

(1) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.
(3) Grounds for termination of parental rights shall be based on one or more of the following factors:
(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year[.]
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment[.]

Miss.Code Ann. § 93-15-103(1),(3)(b), (3)(f) (Rev.2004) (emphasis added). As noted in the trial court’s judgment, subsection (1) of the statute provides certain criteria which must be met prior to a consideration of the grounds for termination. The following three prerequisites must exist before a chancellor can terminate parental rights: (1) the child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time or the parent is unable or unwilling to care for the child; (2) relatives are not appropriate or are unavailable; and (3) adoption is in the best interest of the child. Miss.Code Ann. § 93-15-103(1) (Rev.2004). Because Zach was never removed from the home of his natural parents, the trial court examined whether Tony was unable or unwilling to care for his child. See id.

¶ 16. The chancellor focused on the period of time following Deanna’s death and found that Tony’s actions had demonstrated that he was willing to care for Zach. The record reflects that at Deanna’s funeral, Tony expressed an interest in forging a relationship with his son, and when ordered by the chancellor, began regularly visiting Zach and paying child support. As noted in the GAL’s opinion, Tony did everything the chancellor and the Pendletons asked of him in order to prove his dedication to reuniting his family. Therefore, we find credible evidence to support the trial court’s determination that the first condition of Section 93-15-103(1) was not met. Furthermore, the Pendle-tons failed to present any evidence as to the second condition or even to request adoption, much less prove that adoption was in Zach’s best interest. We cannot say that the chancellor committed manifest error in finding that Tony was currently willing to care for his son, notwithstanding his history of failing to do so.

¶ 17. Even where a chancellor finds one or more grounds which justify termination of parental rights, nothing in our law requires the chancellor to do so. Rather, Mississippi Code Section 93-15-109 provides that if the chancellor is satisfied by clear and convincing proof that grounds justifying termination of parental rights exist “then the court may terminate all the parental rights of the parent or parents.... ” Miss.Code Ann. § 93-15-109 (Rev.2004) (emphasis added). We have affirmed our chancellors in similar cases where they have refused to terminate parental rights yet still found sufficient grounds to award custody to third parties. See, e.g., Veselits v. Cruthirds, 548 So.2d 1312, 1315-16 (Miss.1989) (affirming custody award to third party and chancellor’s refusal to terminate parental rights). On the.record before us, we cannot say the chancellor committed manifest error in refusing to terminate Tony’s parental rights.

II. WHETHER THE CHANCELLOR ERRED IN NOT AWARDING THE PENDLETONS CUSTODY.

¶ 18. At the outset of this discussion, we reaffirm that the paramount and ultimate goal in every child custody case must be the best interests of the child. This is a principle of law so deeply embedded in our jurisprudence that it should not require further elaboration or citation of authority. This is a difficult case. The chancellor framed the issue as follows:

[T]he prevailing question presented is whether a natural father should now be allowed to raise his son who had been in a safe and secure environment with non family members when the father has not been actively involved in the son’s life prior to his mother’s death. There is no doubt the best interest of Zachary, at least in the short term, would lie in his remaining with the Pendletons where he has had a secure environment for the past few years.

Further, he concluded that “[i]t is not the best interest of Zachary to be determined but rather the question presented is whether the Defendant is fit and suitable to have custody of his son.”

¶ 19. In Mississippi, it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party. K.D.F. v. 933 So.2d 971, 980 (Miss.2006). This presumption is echoed in Mississippi Code Section 93-13-1: “The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education.... If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent.” Miss.Code Ann. § 93-13-1 (Rev.2004).

¶20. However, we also recognize that this presumption or preference for a natural parent may be rebutted. That is, this presumption does not provide an absolute right in the parent to raise his or her child, rather it creates a presumptive right which must give way if relinquished by the parent either through abandonment, desertion, or other unfitness, and if it is otherwise overcome by an overriding concern for the best interest and welfare of a child. These sentiments are reflected in our custody statute, Section 93-5-24, which provides that:

(1) Custody shall be awarded as follows according to the best interests of the child .... (e) Upon a finding by the court that both parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child the court may award physical and legal custody to: (i) The person whose home the child has been living in a wholesome and stable environment; or (ii) Physical and legal custody to any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.

Miss.Code Ann. § 93 — 5—24(l)(e)(i)—(ii) (Rev.2004) (emphasis added).

¶ 21. This presumption in favor of a natural parent has long been recognized, and Tony is entitled to it unless there is proof that he has relinquished it. On the other hand, our law does not recognize that the Pendletons have any right to Zach’s custody. We do, however, recognize the doctrine of in loco parentis. “We have defined a person acting in loco par-entis as one who has assumed the status and obligations of a parent without a formal adoption.” Logan v. Logan, 730 So.2d 1124, 1126 (Miss.1998). The record shows that the Pendletons took Zachary into their home and provided parental supervision and support as though he were their own child and as such, they are said to have acted in loco parentis. See Faroe v. Medders, 241 Miss. 75, 128 So.2d 877, 879 (1961).

¶ 22. After reviewing the record and the chancellor’s findings, we find that in evaluating custody the chancellor failed to address Tony’s complete and total absence of any contact or support for two and a half years of three-year-old Zach’s young life. The chancellor clearly focused on Tony’s current desire to have custody of Zach. The undisputed record before us reveals that for approximately two and a half years, Tony had no contact with Zach. He failed to see, talk with, or otherwise visit his son. Further, Tony provided no financial support during this time, nor did he send any birthday or Christmas cards or gifts to Zach. While Tony maintained that he was unable to contact Deanna and Zach, Tony’s mother and sister testified that they were in continuous contact with the Pendletons, Deanna, and Zach. Tony’s mother also testified that she had encouraged Tony to be more involved with his child but that he had refused. The record also reflects that after Deanna’s death, Tony did take appropriate steps to reestablish a relationship with his son. While commendable, this does not negate his glaring absence from Zach’s life at the time of, and in the two-and-one-half years prior to, the Pendletons’ request for custody.

¶ 23. We find on the record before us as a matter of law that Tony’s actions (or lack thereof) during the two and a half years before Deanna’s death constitute desertion. Tony chose to completely avoid both his moral and legal duties and obligations as a father for more than two years. During this period of time, he showed a complete disregard for the welfare of his young son. We find that, even assuming everything Tony said is true, it is insufficient for a reasonable fact-finder, in the exercise of discretion, to conclude that Tony did not desert his child. While the chancellor did not make findings of fact as to whether Tony’s actions prior to Deanna’s death constituted either abandonment or desertion, we see no reason to remand this question to the chancellor as our respected colleague suggests. We find that on the facts of this case and the developed record before us that it would be manifest error to conclude that desertion had not been shown.

¶ 24. A finding that there was desertion however, does not end the inquiry. In a custody case involving a natural parent and third party, the court must first determine whether through abandonment, desertion, or other acts demonstrating unfitness to raise a child, as shown by clear and convincing evidence, the natural parent has relinquished his right to claim the benefit of the natural-parent presumption. If the court finds one of these factors has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interests of the child through an on-the-record analysis of the Albright factors. In re Custody of M.A.G., 859 So.2d 1001, 1004 (Miss. 2003); see K.D.F. v. J.L.H., 933 So.2d 971, 981 (Miss.2006); Logan v. Logan, 730 So.2d 1124, 1127 (Miss.1998). In addition to the Albright factors, although Tony is not entitled to a presumption in his favor, we conclude that it is entirely appropriate to take into account society’s interest in preserving the natural parent and child relationship whenever possible. The chancellor should give this factor whatever weight is appropriate under the facts of the ease, but it is only one factor, among many, to be considered.

¶ 25. At the age of four, Zach was taken from the only home he had known since he was seven months old, a home the chancellor described as a “safe and secure environment,” and it was done without a finding that this change was in his best interests. Rather, the chancellor’s decision seems to rest entirely on Tony’s right as a natural parent to raise his child. Tony chose “to take an extended holiday from the responsibilities of parenthood” and we find that he should not now be able to claim the benefit of his status as a natural parent to obtain custody without a showing that it would be in Zach’s best interest. Guardianship of Plucar v. Plucar, 247 Iowa 394, 72 N.W.2d 455, 460 (1955), superceded by statute on other grounds, Iowa Code §§ 633.33, 633.55, as recognized in In re Guardianship of Murphy, 397 N.W.2d 686 (Iowa 1986). Because we find the evidence of desertion is clear, we find the chancellor erred in awarding custody to the natural father without an on-the-record analysis of the child’s best interests utilizing the Albright factors. We remand this case for the trial court to proceed with a best interests analysis based on the Albright factors. We also recognize that two years have passed since this hearing, and we direct the chancellor to fully consider the present circumstances of the parties and Zach in determining this custody issue.

III. WHETHER THE CHANCELLOR ERRED IN REFUSING TO DEEM REQUESTS FOR ADMISSION ADMITTED DESPITE AN UNTIMELY RESPONSE.

¶ 26. “Matters of discovery are left to the sound discretion of the trial court, and discovery orders will not be disturbed unless there has been an abuse of discretion.” Scoggins v. Baptist Mem’l Hosp.-Desoto, 967 So.2d 646, 648 (Miss.2007) (quoting Earwood v. Reeves, 798 So.2d 508, 516 (Miss.2001)).

¶ 27. The Pendletons argue that the chancery court erred by denying their motion to deem their requests for admission admitted by Tony, as he was more than sixty-four days late in responding. The Pendletons propounded requests for admission on August 8, 2006. Notice of service was filed on September 25, 2006. The requests for admission were finally answered on November 10, 2006. The Pen-dletons requested at the start of trial that the chancellor deem various requests for admission admitted by Tony, due to his untimely response. Tony’s counsel admitted at trial that no extension was requested nor did he offer any explanation for the delay. Tony counter-argued that he received notice of the motion to deem those answers admitted only on the eve of trial, and, more importantly, that deeming the answers admitted would take away some of the chancellor’s discretion. The chancellor determined that the Pendletons’ motion was not timely filed.

¶ 28. We find that it was unnecessary for the Pendletons to petition the chancellor to deem the requests for admission admitted. Consequently, the chancellor was in error for denying the request as being untimely filed. According to Mississippi Rule of Civil Procedure 36(a), a “matter is admitted unless, within thirty days after service of the request ... the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.” Thus, a judge does not have the discretion to deem the matter admitted, because a request is conclusively established upon a party’s failure to answer ■within thirty days, or such time as the judge has determined appropriate. Miss. R. Civ. P. 36(b). The trial court, may, however, permit withdrawal or amendment of the admission. Id. Rule 36 is to be applied as written, but “it is not intended to be applied in Draconian fashion. If the Rule may sometimes seem harsh in its application, the harshness may be ameliorated by the trial court’s power to grant amendments or withdrawals of admissions

in proper circumstances.” DeBlanc v. Stancil, 814 So.2d 796, 801-02 (Miss.2002). The rule was intended to be used as a means to determine which facts are not in dispute, not as a way to avoid adjudication of contested issues. Id.

¶ 29. In Scoggins, the plaintiff failed to answer requests for admissions until 148 days after they were propounded by the defendants. Scoggins, 967 So.2d at 648. This Court upheld the circuit court’s finding that requests for admission were admitted. Id. at 649. In doing so, the Court also stated that the trial court’s determination that the requests for admission were admitted by operation of law was not an abuse of discretion. Id. at 649. The Court stated that “[w]e are compelled to acknowledge that adage that rules are promulgated for a purpose, this being precisely an instance in which the principle applies.” Id. (quoting Earwood v. Reeves, 798 So.2d 508, 516 (Miss.2001)). Further, in Scoggins, this Court noted that any difficulty with the case “could easily have been eliminated if a motion to withdraw or amend the answers had been filed pursuant to Rule 36(b) and if there were justifiable excuse.” Id. (quoting Martin v. Simmons, 571 So.2d 254, 257 (Miss.1990)).

¶ 30. Notwithstanding this Court’s decision in Scoggins, the Mississippi Court of Appeals has addressed this issue in a child custody matter. In Gilcrease v. Gilcrease, 918 So.2d 854, 856 (Miss.Ct.App.2005), the Court of Appeals reviewed a chancellor’s finding that requests for admissions propounded to the mother were deemed admitted for failure to respond. Gilcrease, 918 So.2d at 856. When the chancellor determined the best interests of the child, however, she ignored one of the admissions that directly dealt with that issue. Id. at 857-58. The admission was that the best interest of the child would be placing the child in the custody of the father. Id. at 858. Aggrieved, the father appealed the chancellor’s decision which awarded custody to the mother. Id. at 856.

¶ 31. The Court of Appeals affirmed the decision and found that the chancellor acted appropriately in the custody case as custody is a judicial, not an evidentiary, determination. Gilcrease, 918 So.2d at 858-59. The court found that the chancellor’s “actions were manifestly appropriate, as the folly of allowing child custody cases to be determined by admission is self-evident.” Id. at 859. Further, the court stated “[n]o right-minded chancellor should ever allow the custody of a child to be determined, in light of the possible dire consequences to the child, based upon a Rule 36 admission.” Id.

¶ 32. Nonetheless, the Court of Appeals also found that the chancellor made a procedural error by ignoring the admission sua sponte. Gilcrease, 918 So.2d at 859. The better course, according to the court, would have been for the chancellor to “follow proper procedure to grant amendment or withdrawal as set forth in Rule 36.” Id. However, the mother never filed a motion to withdraw, therefore, the court found that the chancellor erred by ignoring the admission. Id. The error, however, was committed with a “proper result in mind,” the polestar consideration of the best interests of the child. Id. In this context, the Court of Appeals found no substantive error and affirmed the chancellor’s award of custody to the mother. Id.

¶ 33. It was error for the chancellor to refuse to deem the Pendletons’ requests for admission admitted at trial. The requests were admitted upon the thirty-first day after the Pendletons served the request. In light of the fact that this Court is reversing and remanding on the custody issue for an Albright analysis, Tony has the opportunity to file a motion for amendment or withdrawal as set forth in Rule 36, and the Pendletons have an opportunity to respond to any such motion.

CONCLUSION

¶ 34. We affirm the chancellor’s decision not to terminate Tony’s parental rights. However, we reverse and remand this case for a hearing to determine whether Zach’s interests are best served by awarding custody to the Pendletons or to Tony based upon a traditional best-interests Albright analysis. In addition, this Court reverses the trial court’s denial of the request to deem the requests for admission as admitted.

¶ 35. AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

WALLER, C.J., GRAVES, P.J., DICKINSON, RANDOLPH AND CHANDLER, JJ, CONCUR. KITCHENS, J„ CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. PIERCE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY CARLSON, P.J., AND JOINED IN PART BY WALLER, C.J.

KITCHENS, Justice,

concurring in part and dissenting in part.

¶ 36. I agree with the majority’s determination that the chancellor did not err in refusing to terminate the father’s parental rights, and our analyses of this issue do not differ. However, I respectfully dissent from the majority’s conclusion that the father abandoned the child and is not entitled, therefore, to the natural-parent presumption, as such a finding requires a factual determination, which is to be made by a chancellor and given great deference by this Court.

¶ 37. This case turns on the standard of review, which appropriately defines and limits the parameters of our analysis. In child-custody matters, “review by this Court is ‘quite limited in that the Chancellor must be manifestly wrong, clearly erroneous, or apply an erroneous legal standard in order for this Court to reverse.’ ” In re Custody of M.A.G., 859 So.2d 1001, 1004 (Miss.2003) (quoting M.C.M.J. v. C.E.J., 715 So.2d 774, 776 (Miss.1998)). “Where a Chancellor has applied the correct legal standard and made findings of fact which are supported by substantial evidence, this Court will not reverse her decision.” Id (citing Touchstone v. Touchstone, 682 So.2d 374, 377 (Miss.1996)). “Under this standard, the Court asks not how it would have decided the case ab initio, but whether there is credible proof to support the chancellor’s findings of fact by clear and convincing evidence.” In re Adoption of Minor Child, 931 So.2d 566, 571 (Miss.2006) (citing S.N.C. v. J.R.D., Jr., 755 So.2d 1077, 1080 (Miss.2000)).

¶ 38. In its opinion, the majority has not only failed to cite the standard of review, it also has failed to adhere to it. Simply pronouncing that the chancellor erred does not, in my view, justify reversal of a chancellor. This Court has stated that:

We may not always agree with a chancellor’s decision as to whether the best interests of a child have been met, especially when we must review that decision by reading volumes of documents rather than through personal interaction with the parties before us. However, in custody cases, we are bound by the limits of our standard of review and may reverse only when the decision of the trial court was manifestly wrong, clearly erroneous, or an erroneous legal standard was employed.

K.D.F. v. J.L.E., 933 So.2d 971, 980 (Miss.2006) (quoting Hensarling v. Hensarling, 824 So.2d 583, 586-87 (Miss.2002)).

¶ 39. Here, the Pendletons were given fair opportunity to adduce evidence in an effort to overcome the venerable presumption that favored the child’s biological father by proving that the father had abandoned or deserted the child. They tried mightily to do that; however, before the chancellor was credible testimony, supported by documentation, that the mother never stayed in one place for very long, and that when she moved, she took the child with her. The father testified that when the mother was on the move, as was frequently the case, she could never be reached by calling the same telephone number twice. In fact, when he was able to contact her, his telephone records entered into evidence showed that the numbers at which the father was able to speak with the mother were listed in Meridian, Hattiesburg, and Jackson. He testified that these were among the circumstances that inhibited his contacting the child between 2004 and 2006, and that he did not know where to look for his son or where to send gifts or child-support payments.

¶ 40. When considering these facts, along with the father’s testimony that, when he called the Pendletons, they informed him that the mother and the child did not live with them, I cannot say that the chancellor was manifestly wrong in finding that the father did not abandon or desert his son. Similarly, the guardian ad litem, who investigated the case over the course of fourteen months, did not say that the father had abandoned or deserted the child. Instead, the guardian ad litem testified that “[the mother] left; [the father] could not find her; [the father] could not find the child.”

¶41. In sum, the chancellor weighed the evidence and found that the Pendle-tons had failed to rebut the presumption that gives a natural parent the paramount right to custody of his own child. Given the applicable standard of review and the evidence before the chancellor, I would affirm the chancellor’s judgment that custody of this child be granted to his natural father. Therefore, I would affirm.

PIERCE, Justice,

concurring in part and dissenting in part.

¶42. Black’s Law Dictionary defines “appellate court” as “a court having jurisdiction of appeal and review of decisions of lower courts.... A reviewing court, and, except in special cases where original jurisdiction is conferred, not a ‘trial court’ or court of first instance.” Black’s Law Dictionary 64 (6th ed.1991). Appellate jurisdiction is defined as “[t]he power of a court to review and revise a lower court’s decision.” Black’s Law Dictionary 868 (8th ed.2004). In contrast, a chancellor is a “judge serving on a court of chancery .... or equity.” Id.

¶ 43. Section 159 of the Mississippi Constitution provides that chancery courts have full jurisdiction over cases involving minors. Miss. Const. 6 Art., § 159. The Legislature has further codified that jurisdiction. Jurisdiction over adoption is vested exclusively in chancery court. Miss. Code Ann. § 93-17-3(1) (Rev.2004). Chancery courts and family and county courts sitting as youth courts retain exclusive jurisdiction over hearings to terminate parental rights. Miss.Code Ann. § 93-15-105(1) (Rev.2004). Lastly, exclusive jurisdiction is defined as a “court’s power to adjudicate an action or class of actions to the exclusion of all other courts.” Black’s Law Dictionary 869 (8th ed.2004).

¶44. The majority has confused these terms, and now believes it is the job of this appellate court to take on the role of a chancellor. The majority makes a finding on abandonment and/or desertion in connection with the custody statute when the chancellor failed to make that original determination. It is the job of an appellate court to review the decision of the chancellor, not to make an original determination. It is the duty of this court to defer to the exclusive jurisdiction of the chancery court and only to review the decisions of the chancellor under the appropriate standard of review.

¶ 45. The chancellor’s findings of fact concerning the termination of parental rights are viewed under the manifest-error/substantial-credible-evidence standard of review. K.D.F. & J.C.F. v. J.L.H., 933 So.2d 971, 975 (Miss.2006) (quoting Vance v. Lincoln County Dep’t of Pub. Welfare, 582 So.2d 414, 417 (Miss.1991)). Therefore, we examine “whether credible proof exists to support the chancellor’s finding of fact by clear and convincing evidence.” Id. (citing S.N.C. v. J.R.D., 755 So.2d 1077, 1080 (Miss.2000)). That being said, “[i]t is not this Court’s role to substitute its judgment for the chancellor’s.” Id. (citing Hensarling v. Hensarling, 824 So.2d 583, 587 (Miss.2002)). Nonetheless, a chancellor must make detailed findings of fact and conclusions of law when dealing with a termination of parental rights or adoption hearing.

¶ 46. The Pendletons requested that the chancellor terminate Tony’s parental rights under Mississippi Code Section 93-15-103 and award them custody. Although the Pendletons were requesting custody of the minor child, the chancellor analyzed this case pursuant to Section 93-15-103. Section 93-15-103, dealing with termination of parental rights in connection with an adoption provides, in relevant part, that:

When a child had been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interests of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given ease.

Miss.Code Ann. § 93-15-103(1) (Rev.2004) (emphasis added). As noted in the trial court’s judgment, subsection (1) of the statute provides certain criteria which must be met prior to a consideration of the grounds for termination, one of which is, “the parent [must be] unable or unwilling to care for the child.” See Id. This statute governs abandonment and/or desertion in connection with adoption, and deals with the present conduct of the natural parents. Tony’s actions upon Deanna’s death show that he is willing to care for Zachary. He immediately expressed an interest in forging a relationship with his son, began regularly visiting Zachary, and paying child support. Therefore, I agree with the majority that the chancellor did not commit manifest error in refusing to terminate Tony’s parental rights.

¶ 47. However, abandonment and desertion also are looked at in a custody dispute and must be viewed in connection with Mississippi’s custody statute. The custody statute, Section 93-5-24, provides that:

(1) Custody shall be awarded as follows according to the best interests of the child.... (e) Upon a finding by the court that both parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child the court may award physical and legal custody to: (i) The person whose home the child has been living in a wholesome and stable environment; or (ii) Physical and legal custody to any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.

Miss.Code Ann. § 93-5-24(l)(e)(i)-(ii) (Rev.2004) (emphasis added).

¶48. While this Court previously has looked at abandonment and desertion through the lens of a termination and adoption proceeding, the analysis and definitions are still applicable in a custody dispute. Abandonment and desertion have been defined separately, with each involving different factors but reaching the same conclusion. Ainsworth v. Natural Father, 414 So.2d 417, 419 (Miss.1982). This Court noted that “abandonment has to do with the relinquishment of a right or claim, whereas desertion involves an avoidance of a duty or obligation.” Id. Abandonment is “any conduct on the part of the parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child.” Id.

¶ 49. The test for abandonment is “an objective one: whether under the totality of circumstances ... the natural parent has manifested [his] severance of all ties with the child.” J.R.D., Jr., 755 So.2d 1077 (quoting Ethredge v. Yawn, 605 So.2d 761, 764 (Miss.1992)). In defining the term “desertion,” this court in Ainsworth noted the following definitions: “2. To forsake (a person, institution, cause, etc., having a moral or legal claims upon one). 3. To forsake one’s duty, one’s post or one’s party.” Ainsworth, 414 So.2d at 420.

¶ 50. In my view the chancellor did not make adequate findings on the record regarding whether the conduct of James Leverock constituted abandonment or desertion in connection with Section 93-5-24 of the Mississippi Code. The chancellor clearly focused on the father’s rights to raise his son, rather than on the child’s best interests, when he ruled:

While the short term security and interests of Zachary may be best served by leaving his custody in Plaintiffs, as cited in their post trial brief, the Supreme Court of Mississippi has “... never allowed termination of parental rights solely on grounds that others may be better parents.” V.M.S., a Minor, 938 So.2d 829 (Miss.2006). That same test must be used to measure Defendant’s legal rights to raise his son as opposed to third parties not related by blood. It is not the best interest of Zachary to be determined but rather the question presented is whether Defendant is fit and suitable to have custody of his son.

(Emphasis added.)

¶ 51. If Tony abandoned or deserted this child in connection with Mississippi Code Section 93-5-24, it follows that this nullifies any natural-parent presumption that would exist otherwise. The record does indicate the chancellor looked at the petition for divorce and support agreement between the natural parents in order to make a determination on abandonment or desertion, but this is not enough. It is merely a document which James Leverock signed, it does not address his long absence from his son, Zachary. It is imperative that the court consider past behavior as well as the present, and the record does not include any indication that the chancellor addressed the nearly two-and-one-half-year absence by James Leverock from the life of his son.

¶ 52. Therefore, it is my opinion that this case should be remanded to the trial court for a hearing on-the-record detailing and further addressing the nearly two-and-one-half-year period of absence by Tony from Zachary. If the court does find abandonment and/or desertion as set out by the custody statute found in Section 93-5-24, a best-interests analysis must be conducted on the record utilizing the Al-bright factors, keeping in mind the polestar consideration is the best interests of the child. In re Custody of MAG., 859 So.2d 1001, 1003 (Miss.2003) (ruling that once unfitness is shown, the court must engage in a best-interests analysis utilizing the Albright factors); see K.D.F. v. J.L.H., 933 So.2d 971, 981 (Miss.2006).

CARLSON, P.J., JOINS THIS OPINION. WALLER, C.J., JOINS THIS OPINION IN PART.

      . Section 93-15-103 is a provision of the Termination of Rights of Unfit Parents Law. See Miss.Code Ann. §§ 93-15-101 to 93-15-111.

      . Relevant to these proceedings, this Court has defined the terms abandonment and desertion. Ainsworth v. Natural Father, 414 So.2d 417, 419 (Miss.1982). Abandonment is “any conduct on the part of the parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child.” Id. In defining the term "desert,” this Court in Ainsworth, noted the following definitions: "2. To forsake (a person, institution, cause, etc., having a moral or legal claims upon one). 3. To forsake one’s duty, one's post or one's party.” Id. at 420. This Court explained that “abandonment has to do with the relinquishment of a right or claim, whereas desertion involves an avoidance of a duty or obligation.” Id.

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In Albright, the Court set forth the following factors to be considered by our chancery courts in determining custody:
      The age of the child ... is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which 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 parent and child; moral fitness of 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, and other factors relevant to the parent-child relationship.

        Id.

      . This Court has long held that the natural-parent presumption means that the parents "have a natural right to the nurture, care and custody of their children." Simpson v. Rast, 258 So.2d 233, 236 (Miss.1972).

      . The Albright factors, used to determine child custody based on the best interests of the child, include: 1) age, health and sex of the child; 2) determination of the parent who had the continuity of care prior to the separation; 3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; 4) the employment of the parent and responsibilities of that employment; 5) physical and mental health and age of the parents; 6) emotional ties of parent and child; 7) moral fitness of parents; 8) the home, school and community record of the child; 9) the preference of the child at the age sufficient to express a preference by law; 10) stability of home environment and employment of each parent; and 11) other factors relevant to the parent-child relationship. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).


source: Caselaw Access Project

author:
RANDOLPH, Justice,
      WALLER, Chief Justice,

license: Public Domain

text:
    Rachel Driskell PORTER (Spivey) v. Timothy Wade PORTER.
    No. 2006-CT-01592-SCT.
    Supreme Court of Mississippi.
    Dec. 3, 2009.

      Richard C. Roberts, Jackson, attorney for appellant.
    William R. Wright, Jackson, Trhesa Barksdale Patterson, Deborah H. Bell, W. Benton Gregg, attorneys for appellee.
   ON WRIT OF CERTIORARI

RANDOLPH, Justice,

for the Court.

¶ 1. Rachel Driskell Porter Spivey (“Rachel”) and Timothy Wade Porter (“Tim”) were divorced in October 2000. Incorporated into the divorce decree was a “Child Custody, Child Support and Property Settlement Agreement” (“Agreement”) providing for joint physical and legal custody of their three minor children (“Porter children”). In December 2005, Rachel’s husband, Dan Spivey (“Dan”), received and accepted a job offer in Memphis, Tennessee. Thereafter, Rachel petitioned the Chancery Court of Madison County, Mississippi, for a revision of the “current custodial arrangement,” praying for the Porter children to live primarily in Memphis with her and Dan. Tim answered and counter-petitioned, seeking sole physical custody of the Porter children in Jackson, with “an appropriate visitation schedule ... for Rachel.... ” The chancery court determined that Rachel’s move to Memphis would render the Agreement impractical and undertook an Albright analysis. After weighing the Albright factors, the chancery court concluded that the children’s “best interest would be served by granting [Tim] sole physical custody with Rachel having liberal rights of visitation. The parties shall continue to share joint legal custody!,]” and entered a judgment in accord.

¶ 2. After the judgment was entered, Dan was terminated from his employment in Memphis. Rachel then filed a “Motion for Relief from Judgment,” asserting that because of Dan’s termination, she would remain in Jackson, and sought reinstatement of the original Agreement. After the chancery court denied Rachel’s motion, she filed appealed. The Mississippi Court of Appeals affirmed the grant of sole physical custody to Tim, but reversed and remanded for a modification of Rachel’s visitation schedule, which was based upon her living in Memphis. See Porter (Spivey) v. Porter, 28 So.3d 470, 474-75, 2008 WL 4559737, at *3 (Miss.Ct.App. Oct.14, 2008). Following the Court of Appeals’ denial of Rachel’s motion for rehearing, this Court granted her “Petition for Writ of Certiora-ri.”

FACTS

¶ 3. On October 4, 2000, Rachel and Tim were granted a divorce based upon irreconcilable differences, with the Agreement incorporated therein. The Agreement notably provided that “[t]he parties shall have joint physical custody[] with Wife awarded primary physical custody of the [three] minor children; Husband shall have secondary physical custody of the minor children; the parties shall have joint legal custody[] of the minor children.” As to “joint physical custody,” the Agreement was modified in May 2003 to read:

Alternating weekends commencing Friday at 12:00 noon or time school is dismissed and ending at 5:00 p.m. on Sunday.
Each and every week, Tim shall have custody ... commencing on Wednesday from the time school is dismissed and ending with Tim taking the children to school on Friday morning.
When school is not in session, Tim shall have custody of the children commencing at 12:00 noon on Wednesday and ending at 12:00 noon on Friday.
[Tim] shall be entitled to two (2) additional overnight periods, excluding the Mondays following [his] custodial weekend, during the month to be selected by him during the same hours.... []

The Agreement further stated that “[i]n the event either part[y] moves from the Jackson Metropolitan area, that event shall constitute a material change in circumstances.” Regarding child support, the Agreement provided that Tim “shall pay to [Rachel] for the support and maintenance of the minor children ... the sum of [$2,550] per month ($850 per month per child) ... until the respective child is emancipated.”

¶ 4. On April 21, 2001, Rachel married Dan. Two children were born of their marriage. In November 2004, Tim married Samantha Thomas Porter (“Samantha”). The couple has no children together, but Samantha has a daughter from a previous marriage.

¶ 5. In December 2005, Dan received a job offer from Wellspring Management, LLC (“Wellspring”), a hedge fund founded in October 2004 and based in Memphis, Tennessee. According to George White, the managing member of Wellspring, the employment offered to Dan was “terminable-at-will,” and his employment contract guaranteed him no severance benefits. According to White, “the only other stipulation ... that wasn’t up for negotiation was [Dan] had to move to Memphis.” Dan accepted Wellspring’s offer and, in early January 2006, commenced his employment.

¶ 6. On January 6, 2006, Rachel submitted admission applications for the 2006-2007 school year to Memphis schools on behalf of the Porter children. On the applications, Tim was not mentioned. Dan was listed as the “Father/Guardian” or “[Step]Father.” On January 21, 2006, Rachel informed the children of their impending move to Memphis. The following day, Rachel called Tim and informed him of the imminent move. On January 25, 2006, Tim filed an “Emergency Motion for Temporary Restraining Order and/or Alternative Injunctive Relief,” seeking, inter alia, to force Rachel to “[rjefrain from taking the children to Memphis to become involved in community activities such as church or school.... ”

¶ 7. On February 28, 2006, Rachel filed a “Petition to Modify Defendant’s Periods of Physical Custody.” The petition provided that “[a]s a result of the change in Dan’s employment status, Rachel and her five (5) children are planning to move to Memphis after the current school session.” The petition added that Rachel “does not seek a change in the current custodial arrangement whereby the parties have joint physical custody with Rachel being the primary physical custodian and Tim being the secondary physical custodian. Rachel seeks only a revision of the custodial periods set forth in the parties’ Agreement.”

¶ 8. At a subsequent hearing, the chancellor granted Tim’s “Emergency Motion for Temporary Restraining Order and/or Alternative Injunctive Relief,” stating that, “I don’t see any reason to get these children involved in community activities in Memphis right now when their primary focus, at the very least until the end of this school year,[] is right here in middle Mississippi.”

¶ 9. The chancery court subsequently entered an order appointing Debra L. Allen as guardian ad litem. Her role was to “advis[e] the Court in determining the best interests of the children.” To that end, Allen was provided with “full access to all documents, things, and witnesses, including the parties, relevant to issues before the Court....”

¶ 10. Tim answered Rachel’s petition and counter-petitioned for modification of physical custody. Tim’s counter-petition averred:

Rachel’s move is indeed a material change in circumstance for the children .... Further, the children are immersed in extracurricular and church activities within their community. A relocation with Rachel would be detrimental for the children, as it would necessitate changing schools, and would include a general upheaval in the children’s lives....
It is in the children’s best interests to remain in their home and community in the Jackson, Mississippi area.

Tim sought sole physical custody and the establishment of “an appropriate visitation schedule with the children for Rachel....”

¶ 11. Following the examination of witnesses by both parties at trial, Allen provided a guardian ad litem statement. According to Allen, “[tjhese children have lead [sic] as best of a post-divorce life as any three children could have.” She added that “[t]he Court has heard about the children’s school records. It’s admirable.... [T]hey are all doing great. They all attend church. They’re all friendly, warm, open children and they have lots of friends, family. It’s all there.” Based upon Rachel’s move to Memphis, Allen opined that “it’s going to be impossible for them to live in the way that they did.” Allen determined that the “geographical move is going to make this current arrangement likely not workable, without some changes, I think an Albright analysis is appropriate.” Allen concluded that:

[o]n the continuity of care issue, that is going to weigh slightly on [Rachel’s] side of this issue. She is extremely organized. She has multiple children in her household and she takes great steps to ... pay attention, give attention to and schedule their various needs. That is not an easy task. And I believe that she is primarily the one who has done that.

Because the Porter children are now “going to have to live some place where they’re going back and forth” and “somebody is going to have to help them organize that existence!,]” Allen felt that Rachel “is better at doing such things.” Additionally, Allen noted that:

if they stayed here [in Jackson] and then they leave here and they go off to visit their mom, they’re going to a world where they don’t know anything. And they’re not going to have friends and they’re not going to have family and it is not going to be ... as good for them. If they live with their mom and they come back here, here is family. Here is home that they remember. Here are familiar surroundings. Here is friends, kids to play with. And so it makes the notion of leaving home to another home ... more palatable.

Allen recommended that the Porter children primarily live in Memphis with Rachel and Dan.

¶ 12. The July 11, 2006, opinion of the chancery court initially concluded that the Agreement expressly provided for joint legal and physical custody, and that the parties’ “actions over the past five (5) years” were consistent with that. The chancery court then found that “Rachel’s move to the State of Tennessee has made the present joint physical and legal custody arrangement impractical [] and as such constitutes a material change in circumstances adverse to the children’s best interest.” (Emphasis added.)

¶ 13. The chancellor then conducted an Albright analysis and found that four factors favored Tim. Regarding “parenting skills,” the court noted that “[b]oth Rachel and Tim are exceptional parents. They have different parenting styles which has only made the current joint custody arrangement that much more unique. These children have enjoyed the best of both parenting styles.” Nonetheless, this factor was found to favor Tim based upon Dan’s use of corporal punishment with the Porter children; Dan’s self-proclaimed status as the “head of household” to whom the family “is expected to be subservient!;]” Dan’s tendency “to undermine Tim’s role as the children’s father[,]” which Rachel “does little, if anything, to deter[;]” and Dan’s intense demeanor, which “can cause fear in others....” As to the “home, school and community record of the children,” the court found that this factor “strongly favor[ed]” Tim, as the children grew up in the Jackson area, excelled in their school environment at First Presbyterian Day School, had strong community ties in the Jackson area, and had extended family living near Jackson. By contrast:

[i]n Memphis, the children have no home, school or community record. The children have never lived in Memphis .... The children have no extended family in Memphis.... The children will be required to attend a new church in Memphis.... The children will be enrolled in new private schools in Memphis .... The children have never been involved in social or sporting activities in Memphis....

Regarding the “stability of the home environment and employment of the parent,” the court found that this factor favored Tim because of Dan’s intense demeanor, which “can cause fear in the children[,]” and Dan’s “terminable-at-will” contract with a “company/entity ... which ... is only two (2) years old.” Conversely, Tim’s employment stability was demonstrated by his successful legal practice. Finally, in considering “other factors relevant to the parent-child relationship,” the court found that Tim was favored. The chancellor stated that “Rachel and Tim co-parent beautifully[,]” adding that “[t]his is one of the rare occasions where, until now, the children have felt little impact from the divorce.” However, the chancellor opined further that “[d]ue to Rachel’s move, this is no longer a privilege that these children will enjoy.... [Tjhere is no equivalent substitute to having both parents available twenty-four (24) hours a day. And that is what the Porter children have enjoyed thus far.” Therefore, given the impossibility of recreating that nurturing context with Rachel in Memphis, the chancellor rhetorically asked, “[wjon’t the adjustment of losing one full-time parent be easier surrounded by the security of constants [the Porter children] have grown-up among as part of their everyday lives?” By contrast, the lone Albright factor which the court deemed to even “minimally favor” Rachel pertained to “physical and mental health.” In total, the chancery court concluded that the children’s “best interest would be served by granting [Tim] sole physical custody with Rachel having liberal rights of visitation. The parties shall continue to share joint legal custody.” (Emphasis added.)

¶ 14. Additionally, the opinion provided that “[pjursuant to Mississippi Code Annotated § 43-19-101, there is a rebuttable presumption that child support for three (3) children is twenty-two percent (22%) of the non-custodial parents adjusted gross income. Rachel shall pay to Tim, twenty-two percent (22%) of her adjusted gross income as child support.” The opinion further added that:

[i]n lieu of the aforementioned monthly child support payments, Rachel shall pay one-half (½) of the children’s expenses at a private school from elementary school through high school to include registration fees, tuition and books. Tim is hereby relieved of his obligation to pay Rachel child support of $2,550 per month.

On July 11, 2006, the court issued its “Final Judgment.”

¶ 15. On July 21, 2006, Rachel filed a “Motion for a New Trial and/or to Amend or Alter Final Judgment.” On August 4, 2006, Rachel filed a “Motion to Stay Operation of Final Judgment,” asserting that:

[although Rachel and ... Dan have completed the purchase of a home in Memphis, Tennessee, and have contracted to sell their home in Jackson, Mississippi, Rachel has made and is making arrangements to temporarily remain in Jackson so that she can continue to provide the full-time parenting of her children which this Court described in its Opinion as a “blessing” and a “privilege” for the children. Rachel intends to remain in Jackson until such time that she secures a favorable ruling on her Motion for New Trial and/or to Alter or Amend Judgment, or until her appeal is decided on the merits.

Rachel requested that the chancery court “enter its order staying the operation of the ... Final Judgment for so long as [Rachel] remains in Jackson, Mississippi, and to permit all provisions of the prior [Agreement] ... to remain in full force and effect.” Both of Rachel’s motions were denied.

¶ 16. On August 8, 2006, Dan was terminated from his position at Wellspring. On August 30, 2006, Rachel filed a “Motion for Relief from Judgment,” pursuant to Mississippi Rule of Civil Procedure 60(b)(5) and (6), stating that “as a result of Dan’s termination, Rachel will not be leaving Jackson at all. Dan and Rachel will continue to reside in their home in Jackson....” Rachel asserted that because “[t]he [c]ourt’s analysis of the Albright factors, and the subsequent decision to modify physical custody, was occasioned solely by Rachel’s anticipated move to Memphis as a result of Dan’s employment!,]” and because “Dan’s termination has made the potential change in circumstances, and the potential adverse effect occasioned by a move to Memphis, moot[,]” then the original custody arrangement “is not only practical, but also in the children’s best interest.”

¶ 17. At the hearing on Rachel’s “Motion for Relief from Judgment,” the chancellor admitted that he had “based the entire judgment on the fact that Rachel and Dan and their family were moving to Memphis.” Nonetheless, the chancellor stated that “what happened to [Dan] was totally foreseeable.” Indeed, the chancellor’s Albright analysis, expressing concern regarding Dan’s terminable-at-will contract, was prophetic. The chancellor added further that, based upon their “demonstrated performance,” it is equally “foreseeable” that Dan and Rachel will again move in response to another job offer. As such, the chancellor denied Rachel’s motion, stating that “[o]nee the evidence was all in, I was convinced that these children staying here with Tim was the best thing for them.” Furthermore, in the chancellor’s estimation:

the reason that the prior [Agreement] worked so well was that Tim and Rachel, at least where the kids were concerned ... were focused on the same thing.... [T]he impression I get, that is not necessarily the case now and that is the only way that something like that [i.e., returning to the original Agreement] would work.

The chancellor added that “if I’m wrong and they are getting along well, then I would anticipate that what [Rachel is] asking for will happen. So, you don’t need an order from me.”

¶ 18. On September 14, 2006, the court entered an order denying Rachel’s “Motion for Relief from Judgment.” On September 15, 2006, Rachel filed a notice of appeal.

MISSISSIPPI COURT OF APPEALS PROCEEDINGS

¶ 19. Regarding child custody, the Mississippi Court of Appeals:

rejected] a blanket ban on all modifications based on anticipated adverse material change. We find that the chancellor should have conducted an Albright analysis after the Rule 60(b) motion was filed to reevaluate the factors in light of [Rachel’s] change in circumstances. However, we recognize that the decision was within the chancellor’s discretion and find this error to be harmless.

Porter, 23 So.3d at 474, 2008 WL 4559737, at *2. Therefore, the Court of Appeals “affirm[ed] the chancery court’s judgment granting sole physical custody to Tim.” Id. at 474, *3. Regarding visitation, however, the Court of Appeals found that “[b]ecause Rachel’s anticipated move to Memphis never occurred, the visitation schedule dividing the children’s time between Jackson and Memphis must be modified. We, therefore, reverse and remand this matter to the chancery court for resolution of Rachel’s visitation rights.” Id.

¶ 20. Following the Court of Appeals’ denial of Rachel’s motion for rehearing, this Court granted her “Petition for Writ of Certiorari.”

ISSUES
¶ 21. This Court will consider:
(1) Whether the chancellor utilized and applied incorrect legal standards in modifying the Agreement.
(2) Whether the chancellor erred in rejecting the guardian ad litem’s custody recommendation.
(3) Whether the chancellor erred in modifying child support.
(4) Whether the chancellor abused his discretion in denying Rachel’s “Motion for Relief from Judgment.”

ANALYSIS

I. Whether the chancellor utilized and applied incorrect legal standards in modifying the Agreement.

¶ 22. The original Agreement provided that “[t]he parties shall have joint physical custody with Wife awarded primary physical custody of the [three] minor children; Husband shall have second,ary physical custody of the minor children; the parties shall have joint legal custody of the minor children.” (Emphasis added.) Mississippi Code Annotated Section 93-5-24(1) outlines the statutorily permissible forms of child custody. See Miss.Code Ann. § 93-5-24(1) (Rev.2004). For example, Mississippi Code Section 93-5-24(l)(a) provides for “[p]hysical and legal custody to both parents jointlyf,]” while Section 93-5-24(l)(c) provides for “[l]egal custody to both parents jointly ... and physical custody to either parent.” Miss.Code Ann. § 93-5-24(l)(a) & (c) (Rev.2004). The statute, however, makes no mention of either “primary” or “secondary” physical custody. “Although it is a phrase commonly used by lawyers and judges, there is actually no provision under the statute for ‘primary’ physical custody.” Rush v. Rush, 932 So.2d 794, 796 (Miss.2006). See also McSwain v. McSwain, 943 So.2d 1288, 1290 n. 2 (Miss.2006). Therefore, since the Agreement provided for “joint physical custody,” defined in the Agreement as in Mississippi Code Section 93-5-24(5)(c), this Court finds that the phrases “primary physical custody” and “secondary physical custody,” undefined in the Agreement, cannot act to transform such express “joint physical custody” into de facto sole physical custody with liberal visitation. Under the Agreement, Rachel and Tim exercised joint physical and legal custody.

¶ 23. Mississippi Code Section 93-5-24(6) provides that “[a]ny order for joint custody)] may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.” Miss.Code Ann. § 93-5-24(6) (Rev.2004). However, in joint custody cases, this Court has stated that “[i]n order to modify child custody, it must be proven that a material change in circumstances has occurred that adversely affects the welfare of the child.... ” Lackey, 755 So.2d at 1088. See also Elliott v. Elliott, 877 So.2d 450, 454 (Miss.Ct.App.2003); Rinehart v. Barnes, 819 So.2d 564, 566 (Miss.Ct.App.2002). Any suggested conflict between the statute, which is silent as to requiring adverse effect on the welfare of the child, and the caselaw is, in practice, not a conflict. The statute addresses the content of the petition, while the caselaw addresses the requisite .proof for modification.

¶ 24. At trial, both Rachel and Dan testified that Rachel’s anticipated move to Memphis was certain regardless of the court’s decision. In applying the “material change in circumstances which adversely affects the children’s welfare” standard in the joint-custody context, this Court previously has stated that an Albright analysis is proper when “it would be impractical to leave custody as it stood at the time of the hearing.” Lackey, 755 So.2d at 1089 (adding that “[i]ts surely in the children’s best interest NOT to be shuttled back and forth between New York and Mississippi every two weeks.”). See also Franklin v. Winter, 936 So.2d 429, 432 (Miss.Ct.App.2006) (“[ajccording to recent cases, the moving of one party some distance away can constitute a material change in circumstances sufficient to warrant the modification of a custody agreement when the parties at issue share joint physical custody of the child.... ”); Elliott, 877 So.2d at 455 (“[tjhere are cases ... which state that the moving of one party is sufficient grounds for modification because it makes joint custody impractical or impossible.”); Rine-hart, 819 So.2d at 566 (affirming modification based on Albright analysis predicated upon the chancellor finding that “the shared custody agreement between parents of a child of school age, living in two different states, would be quite difficult to maintain”); Massey v. Huggins, 799 So.2d 902, 906 (Miss.Ct.App.2001) (affirming modification based on Albright analysis predicated upon the chancellor finding that “the impracticality of the present joint physical custody arrangement was a material change in circumstances adverse to the children’s best interests ... ”). The court applied the impractical/impossible analysis in the case sub judice, finding that “Rachel’s move to the State of Tennessee has made the present joint physical and legal custody arrangement impractical and as such constitutes a material change in circumstances adverse to the children’s best interest.” (Emphasis added.)

¶ 25. On this point, the separate opinion of Chief Justice Waller suggests that “the chancellor erred in granting a custody modification based on a material change in circumstances that had not yet occurred.” This despite the fact that we have previously found, as have other states, no error in pre-move petitions and orders to modify custody in both sole and joint custody contexts. See Lackey, 755 So.2d at 1088 (involving a “pending move” to New York) (emphasis added); Spain v. Holland, 483 So.2d 318, 318 (addressing the issue of “[sjhould the chancery courts of this state interfere with a divorced custodial parent’s planned movement of minor children to a foreign nation incident to that parent’s pursuit of a reasonable professional or economic opportunity?”) (emphasis added). Both Lackey and Spain predated the latest amendments to Mississippi Code Section 93-5-24. Therefore, even assuming arguendo that this Court’s prior permission of custody modifications based upon not-yet-effectuated material changes in circumstances was incorrect, the following analysis from Caves v. Yarbrough, 991 So.2d 142 (Miss.2008), is applicable:

in cases where this Court concludes a statute was incorrectly interpreted in a previous case — we will nevertheless continue to apply the previous interpretation, pursuant to the doctrine of stare decisis, upon finding the Legislature amended or reenacted the statute without correcting the prior interpretation. In our Anew, such action on the part of the Legislature amounts to incorporation of our previous interpretation into the reenacted or amended statute. The Legislature is, of course, free to preclude our incorrect interpretation by specific provision, failing which, we must conclude that the legislative silence amounts to acquiescence. Stated another way, the incorrect interpretation becomes a correct interpretation because of the Legislature’s tacit adoption of the prior interpretation into the amended or reenacted statute.

Id. at 153-54. Thus, this Court concludes that the Court of Appeals wisely “reject[ed] a blanket ban on all modifications based on anticipated adverse material change[,]” reasoning that, to hold otherwise, “Tim would have been obliged to wait until Rachel moved Avith the children to Memphis before filing for modification. Under our current system, Rachel would then have been required to return to Jackson to respond and defend.” Porter, 23 So.3d at 474, 2008 WL 4559737, at *2.

¶ 26. As the impractical/impossible standard was satisfied, the chancery court then conducted an Albright analysis. The chancery court determined that four Albright factors favored Tim, one Albright factor “minimally favor[ed]” Rachel, and the children’s “best interest would be served by granting [Tim] sole physical custody Avith Rachel having liberal rights of visitation.” “Findings of fact made by a chancellor simply may not be set aside or disturbed on appeal unless manifestly Avrong.” Spain v. Holland, 483 So.2d 318, 320 (Miss.1986). “[W]e, as an appellate court, Avill affirm the decree if the record shows any ground upon which the decision may be justified.... ” McSwain, 943 So.2d at 1293 (quoting Tucker v. Tucker, 453 So.2d 1294, 1296 (Miss.1984)). Given the evidence presented, this Court cannot conclude that, in his Albright analysis, the chancellor “abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Morgan v. West, 812 So.2d 987, 990 (Miss.2002) (quoting Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996)). Accordingly, we affirm the chancellor as to this issue.

II. Whether the chancellor erred in rejecting the guardian ad [item’s custody recommendation.

¶ 27. The chancellor voluntarily appointed Allen as guardian ad litem in this case. Both prior to and during trial, the chancellor lauded Allen. He referred to her as “our star witness” and the “best witness” regarding “what these children have to say and what they feel about parents and stepparents.” He further stated that, “I’m going to get ... most of my impressions about what these children are thinking from Mrs. Allen.” Nonetheless, the chancellor also provided that “be sure you understand, I have had guardian ad litems who have made me recommendations before—guardian ad litems that I have as much respect for as I do Mrs. Allen—and I have ... come to a different conclusion.” Thereafter, despite recommendation to the contrary, the chancellor granted Tim “sole physical custody with Rachel having liberal rights of visitation.”

¶ 28. According to this Court, “there is no requirement that the chancellor defer to the findings of the guardian ad litem.... Such a rule would intrude on the authority of the chancellor to make findings of fact and to apply the law to those facts.” S.N.C. v. J.R.D., 755 So.2d 1077, 1082 (Miss.2000). Moreover, this Court has stated that only “when a chancellor’s ruling is contrary to the recommendation of a statutorily required guardian ad li-tem,” should “the reasons for not adopting the guardian ad litem’s recommendation ... be stated by the court in the findings of fact and conclusions of law.” Id. (emphasis added). Here, the chancellor was not statutorily required to appoint a guardian ad litem. Furthermore, the chancellor expressly stated his disagreement with Allen regarding Dan’s impact on the Porter children and clearly outlined his reasoning in granting sole physical custody to Tim. We affirm the chancery court as to this issue.

III. Whether the chancellor erred in modifying child support.

¶ 29. According to Tim’s “Motion to Quash Subpoenae Duces Tecum and Motion for Protective Orders,” later granted by the court, this case “is a custody action only. There are no financial issues pending, Rachel ... has asked the Court to modify Tim’s ‘physical periods of custody,’ not child support. Tim has asked the Court to modify physical custody, with no prayer for child support whatsoever.” (Emphasis added.) Nonetheless, the court imposed child support obligations on Rachel.

¶ 30. “An award of child support is a matter within the discretion of the chancellor and we will not reverse that determination unless the chancellor was manifestly wrong in his finding of fact or manifestly abused his discretion.” Dufour v. Dufour, 631 So.2d 192, 194 (Miss.1994) (quoting Gillespie v. Gillespie, 594 So.2d 620, 622 (Miss.1992)). Mississippi Code Section 93-5-23 provides that, following the initial decree, a chancellor may “on petition, change the decree, and make from time to time such new decrees as the case may require.” Miss.Code Ann. § 93-5-23 (Rev.2004). Moreover, “[a]n order that does not require a non-custodial parent to pay child support should be entered only in rare circumstances.” Rush, 932 So.2d at 799 (citing Knutson v. Knutson, 704 So.2d 1331, 1334 (Miss.1997)).

¶ 31. However, although Mississippi Code Section 93-5-23 “grants the chancellor broad equitable authority regarding the support of minor children, to order such support without the custodial parent’s requesting it by a pleading is an arbitrary deprivation of due process.” Massey, 799 So.2d at 909 (citing Fortenberry v. Fortenberry, 338 So.2d 806, 807 (Miss.1976)). In this case, Rachel “was not provided notice that she ‘might be required to defend a claim of child support’ nor was there a ‘suggestion in the record that support payments from [Rachel] were even being contemplated by the court on its own or asked for by1 [Tim].” Massey, 799 So.2d at 910 (quoting Morris v. Morris, 359 So.2d 1138, 1139 (Miss.1978)). Accordingly, this Court reverses the chancery court’s imposition of child-support obligations upon Rachel. In so ruling, “[w]e suggest no view on the merits of a properly raised issue of support, as our decision is based on procedurally inadequate notice.” Massey, 799 So.2d at 910.

IV. Whether the chancellor abused his discretion in denying Rachel’s “Motion for Relief from Judgment.”

¶ 32. Following Dan’s termination, Rachel filed a “Motion for Relief from Judgment” pursuant to Mississippi Rule of Civil Procedure 60(b)(5) and (6). At the subsequent hearing, the chancellor acknowledged that he “based the entire judgment on the fact that Rachel and Dan and their family were moving to Memphis[,]” but further found that Dan’s termination was, and another move in response to a future job offer is, “foreseeable.” As such, he reaffirmed his Albright analysis from several months prior, that he was “convinced that these children staying here with Tim was the best thing for them[,]” and denied Rachel’s “Motion for Relief from Judgment.”

¶ 33. Mississippi Rule of Civil Procedure 60 states, in pertinent part, that:

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ...
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;
(6) any other reason justifying relief from the judgment.

Miss. R. Civ. P. 60(b)(5) & (6). One who proceeds under either Rule 60(b)(5) or 60(b)(6) must do so “within a reasonable time.... ” Miss. R. Civ. P. 60(b). Under Rule 60(b)(5), relief from judgment is appropriate if “it is no longer equitable that the judgment should have prospective application.... ” Miss. R. Civ. P. 60(b)(5). “Relief under Rule 60(b)(6) is reserved for extraordinary and compelling circumstances.” Briney v. United States Fid. & Guar. Co., 714 So.2d 962, 966 (Miss.1998) (citations omitted). “Rule 60(b)(6) ‘stands as a grand reservoir of equitable power to do justice in a particular case when relief is not warranted by the preceding clauses, or when it is uncertain that one or more of the preceding clauses afford relief.’ ” Id. at 969 (quoting Accredited Surety & Cas. Co. v. Bolles, 535 So.2d 56, 60 (Miss.1988) (quoting Bryant, Inc. v. Walters, 493 So.2d 933, 939 (Miss.1986))). On appeal:

when considering the grant or denial of a 60(b)(6) motion, this Court will not reverse unless convinced that the Circuit Court has abused its discretion. [Burkett v. Burkett, 537 So.2d 443, 446 (Miss.1989) ]. “Generally, consideration of a Rule 60(b) motion requires that a ‘balance ... be struck between granting a litigant a hearing on the merits with the need and desire to achieve finality.’ ” [Lose v. Illinois Cent. Gulf R.R., 584 So.2d 1284, 1286 (Miss.1991) (quoting Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984)) ].

Briney, 714 So.2d at 966 (emphasis added). See also Stringfellow, 451 So.2d at 221 (“motions for relief under Rule 60(b) are generally addressed to the sound discretion of the trial court and appellate review is limited to whether that discretion has been abused.”).

¶ 34. Although Rachel’s anticipated move to Memphis and “Petition to Modify Defendant’s Periods of Physical Custody” precipitated this action, the chancellor’s subsequent Albright analysis favored Tim on factors unrelated to Rachel’s anticipated move, including “parenting skills” and “stability of the home environment and employment of the parent.” See ¶ 13 supra. Thereafter, “[t]he chancellor, having been alerted to the change in [Rachel’s] plans, found no reason to change his decision. We find nothing in the new assertions to undermine the custody decision that had already been reached.” Turner v. Turner, 824 So.2d 652, 659 (Miss.Ct.App.2002).

¶ 35. In short, the chancellor offered justification for finding that the children’s “best interest would be served by granting [Tim] sole physical custody with Rachel having liberal rights of visitation!,]” unrelated to Rachel’s anticipated move to Memphis. Such reasoning, combined with the chancery court’s perception of litigation-related strain between Rachel and Tim, convinced the court to deny Rachel’s “Motion for Relief from Judgment.” Although other judges may have ruled differently, we cannot conclude that the chancellor abused his discretion in so ruling. See Crosby v. State, 760 So.2d 725, 728 (Miss.2000) (“[w]e do not find an abuse of discretion in his ruling, even though we might have ruled otherwise.”).

¶ 36. We agree with the Court of Appeals that this case should be remanded. The existing schedule divides the children’s time between Jackson and Memphis. The chancellor shall establish a new visitation schedule, taking into consideration that both parents live in the Jackson, Mississippi, area.

CONCLUSION

¶37. Accordingly, this Court affirms the chancery court’s: (1) modification of the Agreement granting Tim sole custody with liberal visitation rights for Rachel; (2) discretionary rejection of the guardian ad litem’s recommendation; and (3) denial of Rachel’s “Motion for Relief from Judgment.” This Court reverses the chancery court’s imposition of child-support obligations upon Rachel, and reverses and remands for revision of the visitation schedule. Therefore, the judgment of the Court of Appeals is also affirmed in part and reversed in part, and this case is remanded to the Chancery Court of Madison County for proceedings consistent with this opinion.

¶ 38. AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

CARLSON, P.J., DICKINSON, LAMAR AND PIERCE, JJ., CONCUR. GRAVES, P.J., AND KITCHENS, J., CONCUR IN RESULT ONLY. WALLER, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. CHANDLER, J., NOT PARTICIPATING.

WALLER, Chief Justice,

Concurring in Part and Dissenting in Part.

¶ 39. This is undoubtedly a tough case. But we cannot escape the fact that, pursuant to the clear language of Mississippi Code Section 93-5-24(6), the material change in circumstances must occur before the custody modification may be ordered. Miss.Code Ann. § 93-5-24 (Rev.2004). I would hold that the chancellor erred in granting a custody modification based on a material change in circumstances that had not yet occurred. Therefore, I respectfully dissent from the majority’s resolution of the modification issue.

¶ 40. Mississippi Code Section 93-5-24(6) is the statutory standard for modifying a joint-custody order. It provides that “[a]ny order for joint custody may be modified or terminated ... upon the petition of one (1) parent showing that a material change in circumstances has occurred.” Miss.Code Ann. § 93-5-24(6) (Rev.2004) (emphasis added). As can be seen, the timing of the occurrence of the material change is in the past tense. Griffith’s Mississippi Chancery Practice thus states that “[jjoint custody arrangements may be modified if they become impractical after one of the parties moves.” Billy G. Bridges and James W. Shelton, Griffith’s Mississippi Chancery Practice § 704b (2000) (citing Massey v. Huggins, 799 So.2d 902, 906 (Miss.Ct.App.2001)) (emphasis added). Griffith’s further states that “[tjhe rule [is] that there must be a material change of circumstances ... before a child custody order may be modified....” /¿.(emphasis added). Pursuant to the statute, therefore, the parent petitioning for a modification must show that a material change has already occurred, i.e., at some point after the original joint custody order but before the petition for modification.

¶ 41. Tim and Rachel petitioned for custody modifications in January and February 2006, respectively. At that time, Rachel had not yet moved to Memphis, and she did not intend to do so until May 2006, when the children finished out the school year in Jackson. Rachel had not yet moved at the time of the chancellor’s modification order in July, either. She had postponed her relocation due to the pending custody modification-proceedings, and she further postponed the move after the chancellor issued the modification order.

¶ 42. However, the chancellor couched his modification order in terms of the past tense. He concluded that “Rachel’s move to the State of Tennessee has made the present joint physical and legal custody arrangement impractical and as such constitutes a material change in circumstances adverse to the children’s best interest.” (Emphasis added.) The chancellor made these determinations and denied Rachel’s post-trial motions at times when the purported material change in circumstances had not yet occurred. Later, at the hearing on Rachel’s motion to set aside the judgment, the chancellor admitted that he had “based the entire judgment on the fact that Rachel and Dan and their family were moving to Memphis.” But the chancellor denied her motion anyway, finding that it was “equally foreseeable” that Dan and Rachel would move again in the future. The problem with this analysis is that the material change in circumstances had not occurred.

¶ 48. The majority notes that, “[a]t trial, both Rachel and Dan testified that Rachel’s anticipated move to Memphis was certain regardless of the court’s decision.” See Maj. Op. at ¶24. But the fact that Rachel’s move was “imminent” or that another move was foreseeable after the first one failed cannot serve as the basis for a material change in circumstances. The Supreme Court of Georgia explained it well when it held that:

[wjhile the probabilities may be high that the alleged changes contemplated for the future will occur, it is by no means certain that they will. Events which might happen in the future, no matter how substantial they may be, can not authorize a modification of a [custody] decree until they come to pass.

North v. North, 209 Ga. 883, 885, 76 S.E.2d 617, 618 (1953); see also Johnson v. Lewis, 12 S.W.3d 379, 385 (Mo.Ct.App.2000) (noting that “at the time of the hearing, Father had not actually moved to Arkansas[,]” and holding that “if [a change in circumstances] has not yet occurred, the court lacks jurisdiction to alter the [custody] decree on that basis”).

¶44. It is my opinion that, under the clear terms of the statute, the chancellor erred in prematurely ordering the custody modification in this case because Rachel’s anticipated move never, in fact, occurred.

¶45. Although the court’s ability may be limited by the joint-custody modification statute, the remedial powers of chancery court are marked by plasticity. Hall v. Wood, 443 So.2d 834, 842-43 (Miss.1983). Therefore, in exceptional and exigent circumstances, the chancellor may call upon the chancery court’s “broad equitable powers” to modify custody based on an anticipated, as opposed to realized, material change in circumstances. But that should be the exception, not the rule. If the Legislature wishes to address various public-policy concerns and allow custody modifications based on anticipated changes, the Legislature obviously may do so.

¶ 46. Nonetheless, the majority asserts that “we have previously found ... no error in pre-move petitions and orders to modify custody in both sole and joint custody contexts.” See Maj. Op. at ¶ 25. Thus, as the majority contends, by amending Section 93-5-24 after we decided those cases, the Legislature has acquiesced in our interpretation of the statute to allow custody modifications based on anticipated changes. However, the cases the majority cites do not stand as the rule but the exception.

¶ 47. Lackey v. Fuller involved one parent relocating to New York; and Spain v. Holland involved a move to England. Lackey v. Fuller, 755 So.2d 1083 (Miss.2000); Spain v. Holland, 483 So.2d 318 (Miss.1986). There is a significant difference between a sole custodian relocating to a foreign country, as in Spain v. Holland, and a joint custodian moving only 210 miles away to Tennessee, as in this case. Spain, 483 So.2d at 321. Even Lackey, the only Mississippi joint custody case included in the majority’s argument, dealt with a move more than 1,200 miles away. Lackey, 755 So.2d at 1088. Due to the distances of the parent’s move, those cases involved exactly the kind of exceptional and exigent circumstances that could allow the chancellor to use his equitable powers and order a pre-move custody modification. But they do not stand for this Court’s interpretation of Section 93-5-24, and have not been incorporated into the statute by the Legislature’s amendment thereof.

¶ 48. In custody matters, we have said that “we never depart from our polestar consideration: the best interest and welfare of the child.” Albright, 437 So.2d at 1005. Everyone involved in this case — the parents, the chancellor, the guardian ad litem, and this Court — agrees that the previous joint-custody arrangement was in the children’s best interests. Hence, I believe that the best interests and welfare of the children have not been respected by the majority’s affirmance of the chancellor’s premature custody modification. This is a serious problem.

¶ 49. Therefore, I must respectfully dissent from the majority’s decision to affirm the chancellor’s custody modification.

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) (outlining the relevant factors to be considered in child custody determinations).

      . The Agreement reads "[j]oint physical custody means that each of the parents shall have significant periods of physical custody and it shall be shared by the parents in such a way so as to assure a child a frequent and continuing contact with both parents.” This is a nearly verbatim recitation of Mississippi Code Section 93 — 5—24(5)(c) (Rev.2004).

      . The Agreement reads "[j]oint legal custody means that the parents share the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of the children and obligates the parties to exchange information concerning the health, education and welfare of the minor children and to confer with one another in the exercise of decision-making rights, responsibilities and authority." This is a nearly verbatim recitation of Mississippi Code Section 93 — 5—24(5)(e) (Rev.2004).

      . Additionally, holiday visitation was split equally between Tim and Rachel, and each parent had "the children for three (3) uninterrupted weeks during the summer vacation period.”

      .Such a provision, standing alone, is not binding upon the courts. "This Court has repeatedly held that relocation of a parent does not necessarily result in a material change in circumstances." Lackey v. Fuller, 755 So.2d 1083, 1088 (Miss.2000). First, the chancellor must determine if relocation is, in fact, a "material change in circumstances," when considering the totality of circumstances. If proven to be so, then the chancellor must determine whether the change in circumstances adversely effects the children. If the answer is in the affirmative, it is incumbent upon the chancellor to conduct an Al-bright analysis. See Issue I infra.

      . The chancellor earlier had noted that "there is a misconception, perhaps, Rachel, on your part. Don't presume that these children are going to be moving to Memphis.... [T]his is a joint custody, unless your lawyers can convince me otherwise.” He then added that "I have never gone through ... an Albright [a]nalysis to determine what is in the children's best interest. That is what I will be doing in this case." (Emphasis added.)

      . Elsewhere, the chancery court found that 'Tim and Rachel's present shared custody arrangement between parents of school age children will be impractical, if not impossible to maintain with the parties living in two different states.” (Emphasis added.)

      . By contrast, the court found that Samantha "has remained as neutral as possible.”

      . Visitation schedule modifications were made in the "Final Judgment."

      . According to the chancellor, "if Tim wants to do something that he thinks would be in the best interests of the children my impression is that he has always done those things.”

      . The Court of Appeals also affirmed the chancery court’s denial of Rachel's “Motion for Recusal of the Judges in Chancery Court District 11.” See id. According to the Court of Appeals, “Judge Lutz believed that he had the ability to act fairly and impartially in matters related to this case, and there is nothing in the record to indicate that he did any differently. Accordingly, we find no error with his decision not to recuse himself.” Id.

      . Mississippi Rule of Appellate Procedure 17(h) provides that "[t]he Supreme Court may limit the question on review.” Miss. R.App. P. 17(h). As such, regarding the issue of whether the chancellor erred in denying Rachel's motion for recusal, this Court finds there was "no error with [Judge Lutz’s] decision not to recuse himself.” Porter, 23 So.3d at 474, 2008 WL 4559737, at *3.

      . See footnote 2 supra.

      14. The statutory definition of "joint custody" is "joint physical and legal custody.” Miss. Code Ann. § 93-5-24(5)(a) (Rev.2004).

      . See In re Marriage of Nodot, 81 Ill.App.3d 883, 37 Ill.Dec. 96, 401 N.E.2d 1189, 1194 (1980) (affirming transfer of custody of minor child from mother to father based, in part, on mother's "planned move to Jakarta[, Indonesia] .... ”); Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000) (involving pre-move petition by joint custodial mother seeking sole legal and physical custody of children should she move from Nebraska to New York); McGuinness v. McGuinness, 114 Nev. 1431, 970 P.2d 1074 (1998) (involving pre-move petition to relocate by a mother with joint physical and legal custody).

      . This interpretation of the statute is further supported by Griffith's, which states that a chancery court "judgment operates upon the situation of the parties, as respects their several rights and liabilities, at the time of the institution of the action." Griffith’s, supra, at § 620 (emphasis added). Or, if there are newly discovered or supervening facts, “the facts as they exist at the time of the rendition of the judgment may govern rather than those originally pleaded.” Id. (emphasis added).

      . Also, neither Lackey nor Spain specifically addressed the propriety of modifications based on anticipated changes. Lackey primarily discusses the effect on an existing joint custody arrangement of one parent’s move to New York. See Lackey, 755 So.2d at 1088 (finding that move renders joint custody arrangement unworkable and thus requires modification even without adverse effect on the children). Spain is primarily concerned with whether a relocation alone has an adverse effect on the children in a sole custody situation. See Spain, 483 So.2d at 321 (finding that move alone is not adverse effect but noting that our trial courts may consider "peculiar or unusual circumstances adversely affecting the children over and above the effect attendant upon the mere increase in miles between the children and the noncustodial parent”). Finally, the other cases cited by the majority are from other states and involve relocations to far more distant locales. See In re Marriage of Nodot, 81 Ill.App.3d 883, 37 Ill.Dec. 96, 401 N.E.2d 1189, 1194 (1980) (planned move from Illinois to Indonesia); Brown v. Brown, 260 Neb. 954, 621 N.W.2d 70 (2000) (planned move from Nebraska to New York); McGuinness v. McGuinness, 114 Nev. 1431, 970 P.2d 1074 (1998) (planned move from Nevada to West Virginia). As such, those cases have no bearing upon this Court’s interpretation of Mississippi law or the Legislature’s adoption of it.