Recovering Lost Custody
July 16, 2013 § 4 Comments
We talked last week about the natural parent presumption for custody, and how it may be lost.
Once a parent has lost custody on a finding of unfitness, and he or she later reforms the unfit conduct, what is the standard of proof required to recover custody?
In the case of Barnett v. Oathout, 833 So.2d 563 (Miss. 2004), DHS had removed the minor children from the parents’ home and placed the children in a foster home for more than two years. After the Youth Court had awarded the foster parents durable legal custody and they denied the natural father visitation, he petitioned for modification of visitation. The MSSC stated the rule to be followed by the modification court, as follows:
“The chancellor had to make two determinations: first, whether [petitioner] showed that there was a substantial change of circumstances which adversely affected the children, where it would be in the best interest of the children that custody be changed; and second, whether [the petitioner] showed that he had eliminated the behavior that caused the children to be taken in the first place.” Id., at 568 (¶ 10).
The court went on to find that the rule in Grant v. Martin, 757 So.2d 264 (Miss. 2000), that a parent who agrees to third-party custody forfeits the natural-parent presumption does not apply in cases in which a child is placed with DHS.
That would appear to mean that, although the natural parent in a DHS case does not lose the natural-parent presumption, the standard of proof to modify will be material change-best interest-reformed conduct.
But in 2010, the MSSC extended the Barnett rule to non-DHS cases in the case of Adams v. Johnson, 33 So.3d 551 (Miss. App. 2010), where the court held that when a third party has gotten cusstody of a child due to the unfitness of the parent(s), modification will require proof that there has been a “material change in circumstances in the [grandparents’] home that adversely affected the children.” Id., at 555-56 (¶ 10). No mention of reformed conduct.
As the dust settles, it looks like whether the natural parent voluntarily gives up the child, or has the child taken away, a later attempt to modify custody will require the standard material change-adverse effect-best interest standard, without regard to any natural parent presumption.
[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]
The Better Chancery Practice Blog 
Doesn’t that material change in circumstances need to be shown in the custodial home rather than the non custodial home? It has always been my understanding that if the non custodial parent simply cleans up his/her act and the custodial parent maintains the same level of care, the non custodial parent isn’t entitled to a do-over.
Yes, you are exactly right. In these cases, though, the natural parent who lost custody must also show that he or she has cleaned up his or her act. That’s an additional burden in cases of this type. Sorry if I wasn’t entirely clear on the point. The error is mine, not David Bridges’ excellent material.
Judge,
If a parent loses primary care of minor children to the other parent due to unfitness and the losing parent decides to clean up his/her act and file to regain primary care, What would the court need to find in order to once again change primary roles?
Material change in circumstances + adverse effect on the child = modification of custody.