An In Loco Parentis Case with a Twist

April 13, 2015 § Leave a comment

Gene and Eunieca Smiley were awarded custody of a minor child, Christopher, in a Memphis Juvenile Court proceeding. In addition, Eunieca’s cousin signed an agreed order giving the couple custody of her daughter, Alaina, in 2005.

Gene and Eunieca separated in 2009, but they nonetheless filed a proceeding to adopt Alaina. After the separation, Gene had moved to Memphis with Christopher, and Eunieca resided in Tishomingo with Alaina.

In November, 2010, Eunieca filed for divorce. That same month the adoption was granted (the natural mother had consented; there is no mention of a natural father). The adoption, however, was set later aside for reasons undisclosed in the opinion.

During the pendency of the divorce, Christopher was removed from Gene’s home for physical abuse. Gene conceded that he had gone overboard in whipping the boy with a belt, leaving bruises on the child’s back.

There was testimony of some creepy behavior by Gene involving inappropriate touching and handling little girls at his church and in his own home, and some inappropriate conduct with Alaina.

After a trial, the chancellor ruled that Gene’s had no standing to contest custody because his claim was based on in loco parentis, which the judge said was not adequate to confer standing. She also found that Gene had a history of family violence, and that there were insufficient safeguards to ensure Alaina’s safety when with Gene, so that he should have no visitation with the child, per MCA 93-5-24(9)(d)(i).

Gene appealed. The COA affirmed in part, and reversed and remanded in part, in the case of Smiley v. Smiley, decided March 31, 2015.

On the standing issue, Judge Irving wrote for the majority (Carlton dissented) that Gene did have standing, but that the chancellor correctly adjudicated custody. The court held that the judge’s treatment of Gene’s request for visitation to be cursory, and noted that the GAL in the hearing had reserved the right to make a recommendation on visitation until after hearing all the evidence, but she never did so as to give the judge a basis for finding insufficient safeguards. The court remanded for the chancellor to determine whether “adequate provision” could be made for Alaina’s safety as in the statute.

You should read the opinion to gain an appreciation of the scope of this fact-intensive case.

A few thoughts:

  • “I thought in loco parentis was dead” you might be thinking. Well, as between a natural parent and a third party, it is not alone enough to defeat the natural-parent presumption. As between two non-biological parents who have not adopted a child, however, in loco parentis is available.
  • Does it bother anyone else that separated parents with a divorce filed were allowed to adopt a child? As noted, the opinion does not tell us why the adoption was set aside.
  • The chancellor did not specifically address the Albright factors in ruling on custody; however, she did adopt the GAL report, which incorporated an Albright analysis, and the COA said that was good enough.
  • You need to read the code section cited above. It places custody and visitation limitations on the ability of one found to have been guilty of a history of domestic violence.

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