Correcting Course in an In Loco Parentis Case

November 10, 2015 § 1 Comment

Back in January, 2014, we talked about the COA’s decision in JSW v. AWS, handed down in December, 2013. Here’s our recitation of the facts 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.

The COA reversed, finding that the chancellor applied an incorrect legal standard. The COA held that the non-natural father’s fatherly actions had rebutted the natural-parent presumption, the COA directed the trial court on remand to consider Jake as on an equal footing with the natural parents, to conduct an Albright analysis with respect to his claim, and to factor him into the custodial mix, essentially creating a three-way custody contest.

Tommie petitioned for cert, which the MSSC granted. In its decision, handed down December 11, 2014 under the style of In the Interest of a Minor Victoria Denise Waites: Waites v. Ritchie and Sanford, the MSSC reversed, finding that the chancellor did apply the correct legal standard, and reinstating his decision.

You can read the decision for yourself. It includes all the authority you might expect, an reaches what I believe is a rational conclusion based on the entire body of case law that has developed in this area. It also removes the specter of more possible three-way custody disputes in cases like this — although the mind of man and the imagination of lawyers may prove that statement wrong in some later case.

The reason I am posting this now is that I found that I had never posted on Waites, as I should have, and this is a fairly active area of custody litigation, so I wanted this case to pop up if you search the in loco parentis topic.

By the way: notice how the in loco parentis father who was denied custody ultimately by the MSSC’s affirmance nonetheless has kept his visitation throughout?


§ One Response to Correcting Course in an In Loco Parentis Case

  • Patricia Smith says:

    Is this a retraction from the Griffith v. Pell case and its progeny? At what point in a child’s life does the bond between the non-biological parent overcome a bio parent that has never been a part of the child’s life. It seems that the facts of this case are very similar to Griffith v. Pell with a different ending. I’ve been seeing many trial courts balancing the child’s best interest with the bio parent’s rights and child keeping non bio dad as legal dad because he married mom and raised child. This seems to be in the child’s best interest.

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