November 28, 2012 § Leave a comment

MCA 93-5-24(1)(e)(i) provides that, if the court finds both parents have abandoned or deserted a child, it may award physical and legal custody to ” … [t]he person in whose home the child has been living in a whoesome and stable environment.” And the case of Lucas v. Hendrix, 92 So.3d 699, 705-6 (Miss. App. 2012) says that once the chancellor has found that both parents have deserted the child, custody may be awarded per the statute without first addressing the Albright factors.

Those little gems are in ¶ 17 of the decision in Hamilton v. Houston, decided by the COA November 6, 2012.

In that case, the chancellor found that both of the natural parents had deserted the child. Once he made that finding, the chancellor did go through an Albright analysis, the result of which was to award custody of a minor child to the paternal grandparents over objection of the mother. The COA upheld the chancellor’s decision, and several points raised in Judge Maxwell’s opinion are ones you should file away for future use:

  • Desertion involves forsaking a person to whom one is legally obligated, or forsaking or avoiding one’s duty to that person. In re Leverock & Hamby, 23 So.3d 424, 429-30 (Miss. 2009).
  • Abandonment is relinquishment of a right or claim (¶ 17).
  • A finding of either abandonment or desertion by clear and convincing evidence is enough to rebut the natural parent presumption. In re Smith, 97 So.3d 424, 429-30 (Miss. 2012).
  • In this case, although both parents paid some support for the child, they both admitted that the money they paid was not sufficient to support him.
  • An unusual feature of this case was that the grandparents, who were awarded custody, did not file their own pleadings, but merely joined in their son’s (father of the minor child) petition for custody. The COA held that prayer in the son’s petition that he be awarded custody was adequate to empower the judge to adjudicate the issue in any way that was in the best interest of the child.

The fact pattern in this case should be unhappily familiar to any lawyer who has done much family law in the past several years. It seems that grandparents are more frequently becoming surrogate parents, and chancellors are more often called upon in these cases to be arbiters of the child’s best interest.

It appears to me that these cases are trending toward giving more weight to the quality of the parental relationship and less to the quantity. As in this decision, a parent who, for instance, provides some financial support but forsakes the parental duties of emotional support, presence, attention, and other parenting responsibilities, is at risk for a finding of desertion.

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