The Better Chancery Practice Blog

This is the first of several posts in which we are going to examine how the natural parent presumption may be lost, and how the appellate courts have construed and applied the principles of loss of the presumption.

It is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party. K.D.F. v. J.L.H., 933 So.2d 971, 980 (Miss. 2006).

This presumption is found in Mississippi Code Section 93-13-1 (Rev. 2004):

“The father and the mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education … If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent.”

The presumption is rebuttable, upon 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 unfit mentally or otherwise to have custody.

Absent clear proof of one of the above circumstances, the natural parent is entitled to custody of his or her child. Rutland v. Pridgen, 493 So.2d 952, 954 (Miss. 1986); McKee v. Flynt, 630 So.2d 44, 47 (Miss. 1993). However, “if the court finds that one of these factors has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interest of the child through an on-the-record analysis of the Albright factors. In re Dissolution of the Marriage of Leverock and Hamby, 23 So.2d 424, 431 (¶ 24) (Miss. 2009).

Most recently, the chancellor in In re Custody of Brown, 66 So.2d 726 (Miss. App. 2011) ignored the natural parent presumption and awarded custody to the grandmother based on an Albright analysis. The father appealed. The court reversed and remanded the case for a determination of whether the child’s father had abandoned the natural parent presumption through desertion or other conduct that made him unfit.

In Smith v. Smith, the Court held that “the natural parent presumption can be rebutted by a clear showing that (1) the natural 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.” Smith v. Smith, 97 So. 3d 43 (¶ 10) (Miss. 2012).

[Taken from a presentation made by attorney David Bridges to the Conference of Chancery Judges in April, 2013]

Tagged: natural parent presumption