THE STRENGTH OF THE NATURAL PARENT PRESUMPTION

May 15, 2013 § Leave a comment

Concetter Davis gave birth to a daughter, Sha’Nyla, and in 2008, James Wilson was adjudicated to be the father. Concetter was awarded custody, and James was granted visitation.

When Concetter died in July, 2011, James filed a pleading seeking to “modify” custody, based on the mother’s death. Concetter’s mother, however, resisted, filing pleadings with the court seeking to intervene and be appointed guardian of the child.

The trial proceeded as a modification, not as an original custody determination. The chancellor found that Concetter’s death was a material change in circumstances, and then found, based on an Albright analysis, that it was in the child’s best interest to remain with the grandmother. James appealed. 

The COA, in Wilson v. Davis, handed down April 30, 2013, reversed. The court first pointed out that this was not a modification case, since the original custody determination was between the two natural parents, one of whom was dead. Instead, this was an initial child-custody determination between a natural parent and a third-party. The court said, beginning at ¶ 8:

… [I]n a child-custody determination between a natural parent and a third party, such as a grandparent, the law presumes that it is in the best interest of the child for the natural parent to have custody. Lucas v. Hendrix, 92 So. 3d 699, 705-06 (¶17) (Miss. Ct. App. 2012) (citing McKee v. Flynt, 630 So. 2d 44, 47 (Miss. 1993)). This is because “[g]randparents have no legal right [to] custody of a grandchild, as against a natural parent.” Lorenz v. Strait, 987 So. 2d 427, 434 (¶41) (Miss. 2008).

¶9. The natural-parent presumption is rebuttable—but only “by a clear showing that (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.” In re Smith, 97 So. 3d 43, 46 (¶9) (Miss. 2012) (citations omitted). Only after the presumption is rebutted is the grandparent on equal footing with the parent, permitting the chancellor to apply Albright to determine whether it is in the best interest of the child for the grandparent, versus the parent, to have custody. In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 431 (¶24) (Miss. 2009) (citations omitted).

Only after the presumption is rebutted by showing one of the four bases can the court place a third party on an equal ground with the parent and apply the Albright factors.

To hammer home the point, Judge Carlton added a specially concurring opinion including the thought that, “We must be mindful of the constitutional protection of parental rights against deprivation by third parties.”

Tagged: ,

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

What’s this?

You are currently reading THE STRENGTH OF THE NATURAL PARENT PRESUMPTION at The Better Chancery Practice Blog.

meta

%d bloggers like this: