The Better Chancery Practice Blog

It’s an axiom of Mississippi law that the natural parents, if fit, are presumed to have the first right against everyone else in the world to have custody of their children. K.D.F. v. J.L.H., 933 So.2d 971, 980 (Miss. 2006). This means that, if the natural parent is challenged for custody by a non-parent, there must be a showing of unfitness that will trigger an Albright analysis to determine the best interest of the children.

That presumption, however, can be lost. Here are the 4 ways:

1. Voluntary Court Order.  If the parent voluntarily relinquishes custody and there is a court order to that effect, the presumption is lost, and the party to whom custody is relinquished gets custody until there can be shown to be a material change in that person’s household that is having an adverse effect on the children, and it is in the best interest of the children to change custody.  Grant v. Martin, 757 So.2d 264 (Miss. 2000). In Grant, the MSSC held that the natural mother who had agreed by court order giving her parents custody had given up the natural parent presumption, with the effect that she had to prove material change-adverse effect-best interest to regain custody. Under Grant, it is immaterial whether the natural parent is unfit or has abandoned or deserted the children; the operative fact is the agreement memorialized by a court order. Note that the court has declined to extend Grant to include temporary orders.  Vaughn v. Davis, 36 So.3d 1261, 1266 (Miss. 2010).
2. Abandonment. A parent who is shown by “clear proof” to have abandoned the children has lost the presumption.  McKee v. Flynt, 630 So.2d 44, 47 (Miss. 1993). 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 …” In re Leverock and Hamby, 23 So.3d 424, 429 (Miss. 2009), citing Ainsworth v. Natural Father, 414 So.2d 417, 419-20 (Miss. 1982), which defined abandonment as including both active relinquishment and avoidance of duty. 
3. Desertion. Inaction or avoidance of duty toward the children. Requires clear and convincing evidence. In Leverock, at 33, the Court found that a father had deserted his son by completely avoiding both his moral and legal duties and obligations as a father for more than two years, during which time he had showed a complete disregard for the welfare of his son. The court said that the father had chosen “ ‘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….” Once the finding of desertion is made based on clear and convincing evidence, the court must embark on an Albright analysis.
4. Adjudication of Unfitness. When the court awards custody to a third party based on the natural parent’s unfitness, the presumption no longer applies, and the material change-adverse effect-best interest standard applies. Adams v. Johnson, 33 So.3d 551, 555 (Miss. App. 2010).