Beware this Custody Minefield

July 10, 2013 § 1 Comment

It’s not uncommon nowadays for grandparents to step into the parental role when the natural parents are too immature, or too drug-influenced, or in jail, or otherwise not able to care for their children.

The parties find their way into your office, and they need help. They want you to draw up some papers “to make it legal,” and to enable the grands to get the children into school and access to medical care.

Of course, your first ethical challenge is to determine who will be your client. Grandparents or natural parents? It makes a significant difference, because there are some serious issues facing the natural parents in this situation, and they need to go into the situation with their eyes wide open.

Consider:

  • In Grant v. Martin, 757 So.2d 264 (Miss. 2004), the natural parents voluntarily gave the father’s parents guardianship over their children. The natural parents later divorced, and the mother remarried and stabilized her situation. When the grandparents refused to return the children to her, she filed a petition to modify custody. The chancellor denied it, finding that there had been no material change adversely affecting the children. On appeal, the MSSC stated ” … we adopt a new standard and hold that a natural parent who voluntarily relinquishes custody of a minor child, through a court of competent jurisdiction, has forfeited the right to rely on the existing natural parent presumption …” and that the “… natural parent may reclaim custody of the child only upon showing by clear and convincing evidence that the change in custody is in the best interest of the child” and that the new standard gives chancellors “… the authority to make a ‘best interest’ decision in voluntary relinquishment cases without being fettered by the presumption in favor of natural parents which applies in other custody cases.” Id., at 266.
  • In Callahan v. Davis, 869 So.2d 434 (Miss. App. 2004), the natural parents agreed in the course of a divorce proceeding that the paternal grandparents would have sole physical custody of the child, with what they considered was protective language in the agreement to the effect that either parent could later petition the court based on material change in circumstances, ” … to apply for custody of the child, jointly or solely, upon a showing that it would be in the best interest of the child to be with that party.” The mother later petitioned to change custody, which the chancellor denied based on a finding that the proof was not clear and convincing, as was required in Grant. The COA affirmed.
  • In Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), the court refused to extend the Grant rule to a temporary order. But beware the principle that a temporary order can morph into a permanent one with the passage of time. Quadrini v. Quadrini, 964 So.2d 576 (¶17) (Miss. App. 2007). In Hill v. Mitchell, 818 So.2d 1221 (Miss. App. 2002), the grandparents acquired a “temporary emergency order” for custody of a child “pending a final hearing.” No final hearing was ever held, and after eleven years the mother filed a petition to modify custody. The chancellor denied modification and held that the mother had abandoned the child. The COA affirmed and said that the passage of time amounted to the mother’s acceptance of the custody arrangement.
  • In D.M. v. D.R. 62 So.3d 920 (Miss. 2011), the court held that a mother’s signature on a consent to adoption was tantamount to abandonment, and rejected the mother’s argument that she should regain the natural parent presumption when both of the adoptive parents (grandparents of the child) died less than 10 months after the adoption was finalized. The court applied the Grant rationale in the case.

Note that the common thread in all of the above cases is that the parent or parents voluntarily relinquished custody. The Grant rule does not apply in cases in which the child is placed with DHS. Barnett v. Oathout, 883 So.2d 563 (Miss. 2004).

Before you counsel a natural parent to forfeit the advantage of the natural parent presumption, you would be wise to get an acknowledgment that the parent knows and understands exactly what is being lost.

[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]

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