A Return to Basics in Third-Party Custody
January 12, 2016 § Leave a comment
If you’ve done any amount of third-party child custody work in the past several years, you can’t be blamed for scratching your head in bewilderment over how to advise your client about the limits and parameters of the natural-parent presumption.
The presumption is that the best interest of the child is served by being in the custody of a natural parent, rather than a third party. The presumption may be overcome by clear and convincing evidence 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. Davis v. Vaughn, 126 So.3d 33, 37 (Miss. 2013).
The problem is defining exactly what kind of conduct satisfies the Davis v. Vaughn test. A recent MSSC case defines that for us.
Concetter Davis and James Wilson had a child, Sha, born April 20, 2003. James filed a paternity and custody action in which he was determined to be the father, and Concetter was awarded custody. Concetter died in 2011, and her family refused to turn Sha over to James. He filed an action in chancery Court, and the chancellor awarded custody to Concetter’s mother, Perlean Davis. James appealed, and the COA reversed and remanded for a finding whether the natural-parent presumption had been rebutted. On remand, the chancellor did not take further evidence, but rather made new findings of fact based on the existing record, again awarding custody to Perlean. James again appealed, and the COA affirmed. On cert, the MSSC reversed and remanded.
In the case of Wilson v. Davis, handed down January 7, 2016, the MSSC laid out in particular what is required to be shown in order to overcome the natural-parent presumption. Justice King wrote for the court (several lengthy footnotes omitted):
¶8. Requiring clear and convincing evidence to rebut the natural parent presumption in one of the four manners listed is important to “honor and protect the fundamental right of natural parents to rear their children.” Id. However, this Court takes the opportunity to note that the rigid adherence to proving one of the four precise factors to rebut the natural parent presumption may, in very limited and exceptional circumstances, place a child in a circumstance that is clearly not in his or her best interests. And, as is clearly established, the best interests of the child is the lodestar in custody cases. This Court has recognized this principle in the past, stating that “[i]n order to overcome this presumption, there must be a clear showing that the parent is unfit by reason of immoral conduct, abandonment, or other circumstances which clearly indicate that the best interest of the child will be served in the custody of another.” Moody [v. Moody], 211 So. 2d  at 844 [(Miss. 1968)] (emphasis added). With this decision, we mark a return to that principle. The natural parent presumption may be rebutted by clear and convincing evidence that actual or probable, serious physical or psychological harm or detriment will occur to the child if custody is placed with the natural parent, such that granting custody to the third party is substantially necessary to prevent such probable harm. In other words, if demonstrable, clear and convincing evidence exists that the child will suffer probable harm and detriment in the custody of the natural parent, the court may find that the natural parent presumption is rebutted, and consequently proceed to a determination of whether a custody award to the challenging party will be in the child’s best interests. Such a finding must prevent probable harm to the child, and not simply find that the third party can provide the child with different or arguably “better” things. See Moody, 211 So. 2d at 844 (“The fact that someone else may be in a better position to furnish the child a larger and more convenient home in which to live does not necessarily mean it would be in the best interest of the child to take it from a parent who is otherwise fit to have the custody of the child.”). This “exceptional circumstances” finding means more than that a child’s bests interests may be served by third party custody; it “requires proof of serious physical or psychological harm or a substantial likelihood of such harm.” Watkins v. Nelson, 748 A.2d 558, 565 (N.J. 2000). More than simply best interests is required, because if that “is the only criterion, then a judge may take children from their parents because the judge personally disproves of the parents’ limited means.” Id. at 567 (internal quotations and alterations omitted). By requiring a much higher threshold than simply best interests, the exceptional circumstances finding “is designed to reduce or minimize judicial opportunity to engage in social engineering in custody cases involving third parties.” Id. It is important not to devolve into a less stringent standard because such would easily “evolve into a ‘fitness contest’ whose outcome will depend on the whims of the trial court.” Id. at 568. “The standard that we adopt has as its benchmark the welfare of the child while at the same time protecting parental rights.” Id. [Emphasis added]
¶9. If the court finds that custody should be granted to the third party under this standard, it is required to make very specific findings of fact on the record. We again emphasize that this is a high threshold. However, we believe this standard will allow chancery courts to reconcile the fundamental rights of natural parents to raise their own children with the primary concern in a custody case, the best interests of the child. See Davis, 126 So. 3d at 38 (“Judges often are faced with the difficult task of removing a child from a loving home in deference to a natural parent’s custodial rights. Even so, the law does not allow parental rights to supercede [sic] the best interests of the child.”).
¶10. Turning to this case, we find that the chancellor erred for several reasons. The original hearing, conducted in the vein of a modification of custody, was held in January 2012. In April 2013, the Court of Appeals reversed the chancery court, finding that it had applied the incorrect standard and had not determined whether the natural parent presumption was rebutted. In July 2013, after a year and a half had passed with a great potential for changed circumstances, and without holding a hearing in which both parties were on notice of the issue of rebutting the natural parent presumption, the chancery court simply amended its original order. The chancery court should have held a hearing and received and considered evidence regarding whether the natural parent presumption was rebutted. See Yelverton, 26 So. 3d at 1055, 1057.
¶11. Furthermore, the evidence found by the chancellor was clearly insufficient to rebut the natural parent presumption. First, the court relied on evidence that James dates and marries women much younger than himself, and that these relationships overlap and include adultery. This Court has noted that marital fault, including adultery, may not be used as a sanction in custody awards. Brekeen v. Brekeen, 880 So. 2d 280, 287 (Miss. 2004). While this is not a divorce action, if adultery may not be sanctioned by denial of custody in a divorce action, it certainly follows that such behavior will be difficult to justify as sufficient to rebut the natural parent presumption. While some of James’s relationship behavior may cause concern, no evidence whatsover was adduced that such behavior has had any actual detrimental effect on Sha, thus the evidence does not show that James’s conduct “is so immoral as to be detrimental to the child.” See Davis, 126 So. 3d at 37 (emphasis added). Additionally, James married his current wife before Concetter passed away and was still married and living with her at the time of the hearing. Indeed, the last extramarital affair and relationship with a younger woman noted by the chancellor were with James’s current wife, and began in approximately 2009, more than two years prior to the hearing. The chancellor made no findings that James was currently engaged in adulterous or immoral relationships, and moreover, made no findings that he was involved in any extramarital relationships that harmed or influenced Sha in any way. See Westbrook v. Oglesbee, 606 So. 2d 1142 (Miss. 1992) (where father and his wife drank alcohol, father used to take drugs but had passed random drug tests by his employer for the past six years, a paternal relative smoked marijuana in front of the child once, and father only had minimal contact with child prior to mother’s death, the Court found “a stronger case must be made against [the father] and matters of more current nature need to be shown to establish that he is unfit as a parent.”).
¶12. The chancellor also cited animosity between Concetter and Annette and James, including physical altercations, as reason to deny James custody. While certainly noteworthy, as it appears in the best interests of Sha to have her mother’s memory and her grief for her mother honored, Concetter has passed away, and there is thus no present danger of such animosity or confrontations. These facts are not sufficient to rebut the natural parent presumption, as they do not bear on James’s fitness or detrimental immorality, but they may be a consideration in a best interests analysis.
¶13. The chancellor also cited the anger issues of Annette’s two sons as a reason to rebut the natural parent presumption. Again, such issues are certainly of concern. Yet, the evidence indicated that neither Sha nor her stepsister had been injured or harmed by the boys. The evidence also showed that the parents were seeking intensive therapy to address the issues. Anger issues in the home of a natural parent that pose a potential danger to a child are certainly something a chancellor should examine in detail. However, in this case, the determination of harm was not based on any proof of actual or probable harm to Sha, but rather, based upon pure speculation on the part of the court. Thus, this is not an appropriate reason to find James unfit or so immoral as to rebut the natural parent presumption.
¶14. Because none of the facts found by the chancery court are sufficient to rebut the natural parent presumption, we must reverse the chancery court on this issue.
So, it takes clear and convincing evidence of probable serious harm or detriment to the child if placed with the natural parent, and placement with the third party is necessary to prevent that probable harm.
The footnotes in this case are chock-full of authority on third-party custody. The only reason I did not include them is that this post would have rivalled Gone With the Wind in length if I had.
This is the case I commented on previously for the proposition that on remand the trial court may rely on the previous record, or may take more evidence. That take, apparently, does not apply any longer in contested child custody cases, particularly third-party custody cases.