THE LATEST ON CUSTODY OF OUT-OF-WEDLOCK CHILDREN

December 17, 2010 § Leave a comment

In the case of Reed and Daniels v. Fair, decided December 14, 2010, the court of appeals once again addressed the issue of the proper legal standard to apply when the unmarried parents of a child born out of wedlock face off over custody of the child.

Theresa Reed and Marvin Fair had a relationship that resulted in the birth of their son, M.T.F, in 1997. The parents never married each other, but Fair did acknowledge paternity. For most of the next twelve years, the child lived with his maternal grandmother, Irene Daniels. While in the grandmother’s care, M.T.F. was molested by another grandson.

Fair filed an action for custody, and Reed and Daniels counterclaimed in turn for custody. At trial, Reed and Daniels argued that, because of the length of time that M.T.F. was in Daniels’ care, the court should apply a modification standard. The chancellor found that, since there had never been a judgment awarding custody, it was not proper to apply a modification standard, and he adjudicated the case by application of the Albright factors. The chancellor awarded custody to Fair, and both Reed and Daniels appealed, complaining that the court should have analyzed the case as one for modification.

Justice Maxwell wrote the majority opinion, and it is such a concise exposition of the law on the subject that I have excerpted it here:

Generally, in an initial custody proceeding, the parties are “deemed on equal footing,” and custody is awarded based on the best interest of the child under the Albright factors. See Brown v. Crum, 30 So. 3d 1254, 1258 (Miss. App. 2010) (quoting Law v. Page, 618 So. 2d 96, 101 (Miss. 1993)).

But there are situations where certain legal presumptions prevent the parties from having an equal claim to custody. For example, the father of a child born out of wedlock would not stand on equal footing with the mother where the father does not acknowledge the child as his own. Hemphill-Weathers v. Farrish, 779 So. 2d 167, 172 (Miss. App. 2001). Absent other factors, all jurisdictions recognize that the mother of a child born out of wedlock, if a suitable person, possesses the primary right to the child’s custody where the father has not acknowledged the child. Smith v. Watson, 425 So. 2d 1030, 1033 (Miss. 1983), at 1033 (citing N. Hand, Jr., Mississippi Divorce, Alimony and Child Custody 271 (1981) (“upon acknowledging the child as his own, the father has an equal claim . . . to the parental and custodial rights of the child”).

While chancellors must also consider the Albright factors in modification proceedings, “the movant carries a heavier burden[.]” Romans v. Fulgham, 939 So. 2d 849, 852 (Miss. App. 2006). In a modification action, the party seeking custody must prove that since the original custody award, there has been a material change in circumstances adverse to the child, and a modification in custody would be in the child’s best interest. Tucker v. Tucker, 453 So. 2d 1294, 1297 (Miss. 1984).

In Law, the Mississippi supreme court held that “The ‘material changes’ standard used in modification proceedings is dependent on there being a prior determination of custody.” 618 So. 2d at 101. Relying on Law, the court of appeals has consistently held that where no previous custody determination has been made, the relevant standard is the child’s best interest under the Albright factors — not a “material change” modification standard. See Brown, 30 So. 3d 5 at 1258; , 990 So. 2d 774, 776 (Miss. App. 2008); Romans, 939 So. 2d at 853; C.W.L. v. R.A., 919 So. 2d 267, 271 (Miss. App. 2005); S.B. v. L.W., 793 So. 2d 656, 659 (Miss. App. 2001).

The court of appeals also rejected the theory that a modification standard applies by virtue of one parent’s receipt of child-support payments. Brown, 30 So. 3d at 1257-58; Romans, 939 So. 2d at 852.

The majority opinion rejected the appellants’ argument that because Fair had waited longer than parties in other court of appeals decisions to seek custody, that this case should be distinguished from the earlier decisions. The court refused to establish a “length of time” rule because (1) the resulting legal standard would likely be nebulous, and (2) no case law, including Mississippi supreme court precedent, supports hinging the applicable legal standard solely on the timeliness of the request for custody. See Romans, 939 So. 2d at 853. The majority declined to create a new rule or to overturn the established line of authority. Nonetheless, the opinion emphasized that its holding in no way prevents chancellors from considering the length of a parent’s delay in asserting a claim for custody when determining the best interest of the child. See Brown, 30 So. 3d at 1259 (“Although delay in asserting custody may be a factor to be considered in determining the best interest of the child, it is not the controlling factor.”).

So the state of the law at this point is that a father who acknowledged an out-of-wedlock child as his own stands on an equal footing with the natural mother in a custody determination, which will be treated as an original proceeding, and not as a modification.

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