March 22, 2011 § 1 Comment

The law that applies in custody disputes between natural parents and third parties is not the same as that in custody disputes between two natural parents. “The well settled rule in a child custody case between a natural parent and a third party is that it is presumed that the best interest of the child will be preserved by being in the custody of the natural parent.” Sellers v. Sellers, 638 So.2d 481, 486 (Miss. 1994).

The Mississippi Supreme Court addressed the scope of this presumption in Stacy v. Ross, 798 So.2d 1275, 1279-80 (Miss. 2001), in which the court cited the U.S. Supreme Court decision in Traxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2056, 147 L.Ed.2d 49 (2000): “The Traxel court said, ‘as long as a parent adequately cares for his or her child (i.e., is fit) there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.’”

The presumption in favor of natural parents in custody matters may, however, be rebutted and overcome. In McCraw v. Buchanan, 10 So.3d 979, 983-4 (Miss. App. 2009), the court pointed out that, in addition to the numerous cases holding that the presumption may be rebutted, MCA § 93-13-1 states that “ … if any father or mother be unsuitable to discharge the duties of guardianship …” then another party may be appointed guardian.

In Sellers, at 606, which is regarded as one of the leading cases on custody issues between natural parents and third parties, the court set out a three-part test against which the trial judge is required to measure the proof in the case:

“In order to overcome the presumption there must be a clear showing that (1) the parent has abandoned the child, (2) the conduct of the parent is so immoral as to be detrimental to the child, or (3) the parent is mentally or otherwise unfit to have custody of the child.”

The case of In Re Guardianship of Brown, 902 So.2d 604 (Miss. App. 2004), was an appeal from a chancellor’s decision awarding custody to a maternal grandmother based on a finding that the father was “otherwise unfit.” The appellate court looked to MCA § 93-15-103(3) as a helpful guide to the kinds of conduct that might constitute “otherwise unfitness.” The statute, which deals with termination of parental rights, enumerates categories of parental behavior that would warrant severing the relationship between parent and child. The court said:

“Abandonment, moral unfitness, and mental unfitness are all included in this statute; therefore, we find that a reading of this statute is helpful in deciding what types of factors a court should consider in deciding whether a natural parent is otherwise unfit for taking care of his children. In fact, courts have used exactly the same language explaining the burden of proof in termination of parental rights cases as they have used in explaining the rights of a natural parent to have custody over a third party: “In termination of parental rights cases the petitioner must prove that the natural parent either abandoned or deserted the child or is mentally or morally or otherwise unfit to rear or train the minor child.” N.E. v. L.H., 761 So.2d 956, 961 (Miss. App. 2000), (citing Petit v. Holifield, 443 So.2d 874, 877 (Miss. 1984).

The Brown court found that the statute is a legislative policy statement in favor of natural parents retaining their rights as parents, including the right to custody, and the decision goes on to state:

“We find that denial of custody to a natural parent in favor of a third party should be granted only when there is a clear showing that the natural parent has relinquished his parental rights, that he has no meaningful relationship with his children, or that the parent’s conduct is clearly detrimental to his children.” Brown, at 607.

Brown also includes the following language at page 609 on the question of “otherwise unfitness” that provides some helpful guidance for the trial court:

“The chancellor decided that Mr. Brown was not entitled to custody because he was otherwise unfit as a parent. Although a court is within its discretion to deny custody to a natural parent based on miscellaneous grounds, it must also appreciate the seriousness of granting custody to a third party over a natural parent. In awarding custody to a third party, the Mississippi Supreme Court has stated the natural parent presumption as early as the year 1900: “[Children] must and ought to be subject to the custody and control of those who are immediately responsible for their being, for the reason that by nature there has been implanted in the human heart those seeds of parental and filial affection that will assure to the infant care and protection in the years of its helplessness …. that the primary object is the interest of the child, the presumption of the law is that its interest is to be in the custody of its parent.” Hibbette v. Baines, 78 Miss. 695, 704, 29 So. 80, 81 (1900) (quoting Weir v. Marley, 99 Mo. 484, 12 S.W. 798, 800 (1890)). This presumption is overcome only by clear and convincing evidence. In overcoming this presumption, especially when making the determination on miscellaneous grounds, a court should look for factors that indicate a natural parent’s absence of a meaningful relationship with his child or behavior of the parent that is clearly detrimental to his child. In this case, the chancellor denied custody to Mr. Brown due to his inability to pay his child support in full and his inability to visit his children on a regular basis. In doing so, the chancellor was, in effect, denying Mr. Brown custody on the grounds of abandonment while simultaneously holding that Mr. Brown had not abandoned his children.

Even though Mr. Brown’s children are well cared for by their grandmother in Mississippi, a finding of unfitness is necessary to award custody to a third party over a natural parent. This finding is necessary before the court can decide the best interests of the children. In re Custody of M.A.G., 859 So.2d 1001, 1004(¶ 7) (Miss.2003). We find that the chancellor incorrectly applied the law in finding that Mr. Brown was an unfit parent. We also find that the chancellor’s holding that Mr. Brown was not emotionally available for his children is unsupported by the record.”

In order for a third party to overcome the presumption in favor of the natural parent’s right of custody, then, there must be a showing, by clear and convincing evidence, that the natural parent has abandoned the child, or that the natural parent is entirely unfit to have custody because the natural parent has relinquished his parental rights, or because he has no meaningful relationship with his children, or that the parent’s conduct is clearly detrimental to his children.

The parental presumption no longer applies if the natural parent has voluntarily given up custody of a minor child by court order.  Grant v. Martin, 757 So.2d 264, 266 (Miss. 2000).

Also, a parent may be found to have “constructively abandoned” a child without conduct as extreme as MCA § 93-13-1 if the court finds that the parent has voluntarily abandoned parental responsibility and removed himeslf from active participation in the child’s life for so long that the effect is the same as actual abandonment.  In Hill v. Mitchell, 818 So.2d 1221, 1226 (Miss. App. 2002), the case in which the court of appeals enunciated the concept, the mother had left her child with grandparents for eleven years under a temporary court order, but had remained in regular contact with the child.

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You are currently reading THIRD-PARTY CUSTODY: HOW UNFIT IS UNFIT? at The Better Chancery Practice Blog.


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