Just How Unfit Does a Parent Have to Be to Lose the Natural Parent Presumption?

July 11, 2013 § Leave a comment

We’ve talked here before about the natural parent presumption, and how it can be rebutted, or lost, by the natural parent’s own unsuitable conduct. The presumption is rebutted by a “clear showing” of (a) abandonment, or (b) immoral conduct by the parent that is detrimental to the child, or (c) mental or other unfitness.

Here is a collection of cases where the appellate courts have found that parental conduct rebutted the presumption:

  • White v. Thompson, 569 So.2d 1181 (Miss. 1990). Children not adequately supervised, not adequately clothed or fed, with a resulting deleterious effect on their health, mother living in intimate relationship with another woman.
  • E.J.M. v. A.J.M., 846 So.2d 289 (Miss. App. 2003). Mother had a significant history of mental illness, and in a recent bout of depression could not recall where the child was, and the child had been abused while in her care.
  • In re Custody of M.A.G., 859 So.2d 1001 (Miss. 2003). Drug and alcohol abuse. The 6-year-old child believed his father had killed his mother and brother with a baseball bat, based on a horror movie that the father had rented and watched with the child. Father: charged with drunken driving with child in the car; exposed child to sexual situations involving married women; threatened and abused child’s mother; and never reported his live-in girlfriend and her 5-month-old child missing after they were killed.
  • Loomis v. Bugg, 872 So.2d 694 (Miss. App. 2004). Use of illegal narcotics for an extended period of time. Mother left the child with relatives for more than half the time after death of the natural father.
  • Westbrook v. Oglesbee, 606 So.2d 1142 (Miss. 1992). Mother lived with several different men without benefit of marriage while she had the child, was arrested numerous times on drug-related charges, used illegal drugs and had paraphernalia in her apartment that was used to produce crack cocaine.

So what happens when the judge finds that the parent is presently unfit? Does that trigger an Albright analysis to gauge the comparative merits of the petitioning non-parents vs the parents? Not necessarily. In Lucas v. Hendrix, 92 So.3d 699 (Miss. App. 2012), the COA concluded that, upon a finding of parental unfitness, no further inquiry is necessary, the implication being that a parent who is presently unfit can not be awarded custody.

[This information is based on a presentation by attorney David Bridges to the Conference of Chancery Judges in April, 2013]

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