An Unusual In Loco Parentis Case
January 8, 2014 § 6 Comments
Only last month we discussed the MSSC decision in Vaughn v. Davis, which dealt with the rights of a natural parent as opposed to those of a party who has stood in the shoes of the parent and assumed parental responsibility, a status we refer to as in loco parentis. The court in that case said, “‘[t]he doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption,’ although it may be a factor in determining whether the presumption has been rebutted [citation omitted].”
Vaughn was a case in which the maternal grandmother had acted in loco parentis toward the child after the death of the child’s mother. When the child’s father showed up to claim the child, the grandmother balked, and the litigation ensued. Since the father was not shown to have abandoned or deserted the child, and had not been guilty of unsuitable conduct, his rights trumped those of the grandmother. The fact pattern in Vaughn is fairly typical for these type cases.
How does the Vaughn rationale apply, however, in a case where the in loco parentis party believed in good faith that he was the father, but was later proven not to be when paternity was questioned, and DNA testing proved that the in loco parentis party was not the natural father?
That was the question before the COA in JSW vs. AWR and TJS, decided on December 3, 2013, less than a month after the MSSC decision in Vaughn.
In JWS, Jake and Ann married when Ann was pregnant. Vanessa was the first child born, followed by Brett, a year and a half later. Before she married Jake, Ann had a one-night stand with Tommie. Tommie believed he could be the father of Vanessa, but he took no action because he knew of Jake’s and Ann’s relationship.
In 2007, when Vanessa was nearly three years old, Tommie’s mother called and inquired whether Vanessa might be his child. Ann denied it, but Jake decided to have a DNA test, which ruled him out as the natural father. Jake and Vanessa decided that he would continue to raise Vanessa as his own.
In 2009, Jake and Ann were divorced after five years of marriage. In the divorce, via PSA, the parties agreed that they would share physical custody, alternating weekly.
Less than a year after the divorce, the parties were back in court, fighting over custody and support. Before a hearing could be held in their contest, however, Tommie filed an action for an adjudication of paternity of Vanessa, and for custody, and visitation. A DNA test confirmed that Tommie was the natural father of Vanessa.
In his adjudication, the chancellor considered Jake and Tommie as the natural parents, and Jake as a third party. He found that, although Jake had acted in loco parentis, that alone was not enough to overcome the natural parent presumption. The chancellor awarded Ann custody, and Tommie visitation. Based on Jake’s in loco parentis status, the chancellor awarded him visitation commensurate with Tommie’s.
Jake appealed. Judge Maxwell’s opinion, for a divided court, is somewhat lengthy for this blog, but I think it’s worth your time to read. Here are the pertinent parts:
¶18. This is certainly a unique custody dispute. More typically, the custody dispute is between the two natural parents or between a parent and non-parent, such as a grandparent. In a child-custody determination between two natural parents, the chancellor considers the factors under Albright to determine which natural parent custody should be awarded custody, based on the best interest of the child. Lucas v. Hendrix, 92 So. 3d 699, 705 (¶17) (Miss. Ct. App. 2012) (citing Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983)). However, in 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. Id. at 705-06 (¶17) (citing McKee v. Flynt, 630 So. 2d 44, 47 (Miss. 1993)); see Lorenz v. Strait, 987 So. 2d 427, 434 (¶41) (Miss. 2008) (holding that, because“[g]randparents have no legal right [to] custody of a grandchild, as against a natural parent,” the natural-parent presumption applies in custody cases between grandparents and natural parents).
¶19. The natural-parent presumption is “not unassailable.” In re Custody of Brown, 66 So.3d 726, 728 (¶10) (Miss. Ct. App. 2011) (citing Vaughn v. Davis, 36 So. 3d 1261, 1264 (¶10) (Miss. 2010)). But for the third party to rebut this presumption, he must clearly show “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 at 46 (¶9) (citing Vaughn, 36 So. 3d at 1264-65 (¶¶10-13); In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 429-30 (¶20) (Miss. 2009); Carter v. Taylor, 611 So. 2d 874, 876 (Miss. 1992)).
¶20. In this case, applying precedents concerning custody determinations between a natural parent and a grandparent, the chancellor categorized Jake as a third party. And because the chancellor also found Jake could not show Anne or Tommie had abandoned or deserted Vanessa, acted so immorally as to be detrimental to Vanessa, or was otherwise unfit, the chancellor imposed the legal presumption that it was in Vanessa’s best interest for Anne or Tommie to be awarded custody.
¶21. But there is a body of more relevant cases dealing with this very scenario—when a husband acts under the assumption that he is the father of the child his wife bore. And in these cases, the doctrine of in loco parentis has been used to put the presumed father on equal footing with the natural parent.
II. In Loco Parentis
¶22. In Griffith v. Pell, 881 So. 2d 184, 185 (¶¶2-3) (Miss. 2004), it came to light during divorce proceedings that the husband was not the biological father of the child born to the marriage. The chancellor granted partial summary judgment to the wife, finding the husband had no right to custody of the child. Id. at (¶3). The supreme court reversed based on the doctrine of in loco parentis, which the court found clearly applied. Id. at 186 (¶6). The supreme court held: “Merely because another man was determined to be the minor child’s biological father does not automatically negate the father-daughter relationship held by [the husband] and the minor child.” Id. Further, the supreme court cited with approval other jurisdictions that have held full-blown parental rights do not spring merely from a biological connection. In these cases, the burden is on the biological father to show a sufficient relationship with the child to entitle him to parental rights. Id. at 186-87 (¶9). The burden is not, as the chancellor found in Jake’s case, on the husband to prove that the biological father’s natural-parent presumption has been rebutted.
¶23. In fact, two years after Pell, in J.P.M. v. T.D.M., 932 So. 2d 760, 768 (¶21) (Miss. 2006), the supreme court rejected the very reasoning the chancellor used in this case to exclude Jake as a potential custodial parent. Just as in Pell, during divorce proceedings, the wife revealed that her husband, who had been the primary caretaker of the child since the separation, was not the biological father. Yet this time, the chancellor awarded the husband custody as the “father in fact.” Id. at 762 (¶1).
¶24. On appeal, the wife asserted that, because her ex-husband was not the biological father, he should be considered a third party in their custody dispute. The wife asked the supreme court to apply the line of cases holding that a third party “can only obtain custody” upon showing the natural parent has either abandoned the child, the natural parent’s conduct is so immoral as to be detrimental to the child, or the natural parent is mentally or otherwise unfit for custody. Id. at 767-68 (¶20-21) (citing Keely v. Keely, 495 So. 2d 452 (Miss. 1986); Sellers v. Sellers, 638 So. 2d 481 (Miss. 1994)). But the supreme court found “the instantsituation distinguishable” because, in the cases the ex-wife cited, the third parties “were an aunt and a grandfather, respectively,” whereas in J.P.M., the ex-husband had been the child’s “‘legal father’ since her birth.” Id. at 768 (¶21). “Thus, he ha[d] existing legal rights and obligations that the third parties in [the cases the wife cited] did not.” Id.
¶25. The case the supreme court found instead controlled was Pell and its particular application of the doctrine of in loco parentis. J.P.M., 932 So. 2d at 768 (¶21) (citing Pell, 881 So. 2d 184). So the court found the chancellor, by awarding the husband custody, had reached the right result, using the wrong legal doctrine. While rejecting that the husband was the “father in fact,” the supreme court found he still had parental rights springing from the doctrine of in loco parentis, as applied in Pell. J.P.M., 932 So. 2d at 768 (¶21)
¶26. In J.P.M., Presiding Justice Cobb wrote a specially concurring opinion expressing her concern that in loco parentis was too broad a doctrine to apply to these scenarios. Id. at 779-85 (¶¶64-87) (Cobb, P.J., specially concurring). Because it is not just deceived husbands that may stand in loco parentis, Justice Cobb advocated using the more factually tailored doctrine of equitable estoppel or equitable fatherhood as justification for the rebuttal of the natural-parent presumption. Id.
¶27. Justice Cobb’s warning proved to be prophetic. Eight years later, in In re Smith, grandparents argued that because they stood in loco parentis, as that doctrine is defined, they stood on equal footing with the natural mother. In re Smith, 97 So. 3d at 46-47 (¶4). The supreme court rejected this argument, finding that “[t]he doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption.” Id. at 47 (¶10). But the court clarified that it was not overruling Pell and J.P.M. Rather, those cases represented “very limited, unique situations” where “several facts” led to the rebuttal of the natural-parent presumption—the husbands’ standing in loco parentis being one of them. In re Smith, 97 So. 3d at 47 (¶11). Because the husbands also “had supported, cared for, and treated the child[ren] as their own,” because they had been required to pay child support (“with the burden should go the benefit”), and because “the biological fathers were not really in the picture,” the natural-parent presumption had been overcome. Id.
¶28. Here, the chancellor expressly found Jake stood in loco parentis. He also found Jake supported, cared for, and treated Vanessa as his own, even after he learned he was not her biological father—an action the chancellor found “quite admirable.” In the divorce proceeding, Jake had been ordered to pay half of Vanessa’s day-care expenses, and the only reason he did not have to pay Anne child support was that he shared equal custody time and expenses with her. The only difference between this case and Pell and J.P.M. is that, in those cases, the natural father either disclaimed any rights to the child or could not be conclusively established. See In re Smith, 97 So. 3d at 47 (¶11).
¶29. Based on the chancellor’s own findings of fact, we find Jake is in that “very limited, unique situation” where Pell and J.P.M. control. Thus, the chancellor erred by instead applying the line of cases where a third party can only rebut the natural-parent presumption by showing the natural parents had abandoned or deserted their child or were detrimentally immoral or otherwise unfit.
¶30. Because we find Jake had overcome the natural-parent presumption, he should have been considered on equal footing with Anne and Tommie in the chancellor’s Albright analysis. We reverse the custody award and remand for the chancery court to conduct an Albright analysis that includes Jake as a potential custodial parent.
So the case travels back to the chancellor to add Jake into the Albright mix and make a determination as to custody among the three parents: two natural and one in loco.
In the meantime, the appellees’ attorneys have filed for rehearing, and either party unhappy with the COA’s ultimate decision will likely ask for cert on the issue. That would be welcome, because any clarity the courts can bring to this head-spinning area of our law would be a great relief.