The Defrauded Father and Custody
December 9, 2015 § Leave a comment
It is axiomatic that a natural parent is presumed to have the first right against all the world to have custody of his or her own offspring. But this so-called “natural parent presumption” does have some exceptions.
In the oft-cited case, Griffith v. Pell, 881 So.2d 184 (Miss. 2001), the MSSC held that a husband who had acted in all respects as the father of a child, and who learned in the course of divorce proceedings that he was not the father of that child, could be granted visitation, and even custody, over the objections of the mother. The father’s status, of course is what we know as “in loco parentis” — literally “in the place of the parent.”
In JPM v. TDM, 932 So.2d 760 (Miss. 2006), the court held in scenario similar to Pell that the husband was the “father in fact,” and so was not required to submit additional evidence to rebut the natural parent presumption. But the MSSC has made it clear that Pell and JPM are limited to their unique facts:
[I]n loco parentis can—in very limited, unique situations—sometimes be used to help rebut the natural-parent presumption. In both Pell and J.P.M., a husband learned during the pendency of divorce proceedings that he was not the biological father of a child born of, or just prior to, the marriage. In those cases, we reasoned that the natural-parent presumption had been overcome based on several facts: (1) the husbands stood in loco parentis; (2) they had supported, cared for, and treated the child as their own; (3) they could have been required to pay child support (“with the burden should go the benefit”); and (4) the biological fathers were not really in the picture: the one in Pell had disclaimed any interest in the child and had agreed to relinquish his parental rights, while the one in J.P.M. could not even be determined conclusively.
In re Waites, 152 So.3d 306, 314 (¶¶15-16)(Miss. 2014).
In the recent COA case, Welton v. Westmoreland, handed down November 17, 2015, the court affirmed a chancellor’s conclusion that Daniel Westmoreland stood in loco parentis to his step-daughter, Justice, and affirmed the chancellor’s modification of the parties’ divorce judgment to award him custody of her, over the objection of his ex-wife, Sabrina. Some of the pertinent facts from the court’s opinion at ¶1, penned by Judge Wilson:
Daniel is not Justice’s biological father, but until she was twelve years old, she believed that he was. Justice’s biological father abandoned her and has never made an attempt to see her since her birth. Although Daniel knew that he was not Justice’s biological father, he and Sabrina raised her together from the time she was four months old, and in 2004 Sabrina petitioned a court to change Justice’s surname to Westmoreland. Justice learned that Daniel was not her biological father only when, in the lead-up to the instant litigation, Sabrina made a unilateral—and, the chancellor found, “very hurtful”—decision to tell her. After a hearing, the chancellor modified custody and awarded Daniel physical custody of both children.
Daniel and Sabrina had lived together before they married, and during that cohabitation Daniel was led to believe that he was father of Justice. After they married, he learned the truth, but nonetheless acted in every respect as the child’s true father. When Sabrina petitioned a Missouri court to change the child’s surname to Daniel’s, she averred that the natural father had abandoned the child, and the proof was that the natural father had never participated in the child’s life. In their divorce, Sabrina and Daniel included the following language in a PSA: ” … Justice … is not the biological or adopted daughter of [Daniel], but … Justice … has developed a strong bond with [Daniel] and it is in [Justice’s] best interest that [she] … have visitation with [Daniel] … ”
That latter language, establishing visitation, was crucial in the trial court’s determination that it had jurisdiction per the UCCJEA. And the COA affirmed the chancellor’s decision that he had jurisdiction.
There are plenty of other facts in this case that supported the chancellor’s decision. The majority concluded that the chancellor had properly applied and followed the law in this case. In essence, the COA majority agreed with the chancellor that this case was governed by Pell.
You can read the full facts, along with the strong dissent by Barnes, joined by Irving and James, for yourself.
What this case highlights for us down here at ground level is that there are still circumstances where in loco parentis is a viable basis to seek modification, but the circumstances have to be quite particularly akin to those in Pell if your client hopes to succeed.
The Better Chancery Practice Blog 
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