ANOTHER UNSUCCESSFUL ASSAULT ON THE NATURAL PARENT PRESUMPTION

June 29, 2011 § 1 Comment

It is axiomatic that as between a natural parent and a third party, 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). This natural parent presumption over third-party custody has been the subject of prior posts here and here.

In Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), the supreme court reversed a chancellor’s ruling that a temporary agreement to change custody was enough to overcome the presumption.  In Wells v. Smith, decided May 31, 2011, by the COA, the appellate court rejected in loco parentis as a basis to overcome the presumption.

In Brown v. Hargrave, decided June 28, 2011, the COA rejected yet another assault on the presumption, this time based on the judge’s finding that the totality of the circumstances and the plaintiff’s long-term care of the child.  Relying again on Vaughn v. Davis, the found that the trial judge applied an incorrect legal standard, and sent the case back to the chancellor for a rehearing to determine whether some other basis exists to overcome the presumption.

I’m going to take up for the chancellor in this one so as to make an important point. Chancellors are sometimes (too often I might add) confronted with a situation in which it is obvious that one party has no business with custody of the child, and that the child would be far better off with the other party. The problem is that the case is sloppily tried, points are not made in the record, evidence is not introduced, and the chancellor is left with having to do what he or she fervently believes to be in the best interest of the child without an adequate supporting record. The usual result is a remand, or, in some cases a rendered reversal.

If you don’t want to snatch defeat from the jaws of victory, put on as strong a case of unfitness as you can muster. Put on proof of circumstances that are strong enough to rise to the level of abandonment. Make as strong a case as you can. If you leave the judge without much to hang his decision on, it may end up that your client is the unhappy one.

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