Using the Natural Parent Presumption in a Parent vs. Parent Contest

October 16, 2017 § Leave a comment

After Erica Moore gave birth to a daughter, LM, in 2009, she did not list the father, Patrick Bradshaw on the birth certificate, and she did not tell Patrick about the birth of the child. Erica and Patrick were never married.

Patrick learned of the baby in April, 2010, in a telephone conversation with Erica. He saw the child in person on only two occasions afterward.

In 2011, DHS filed a paternity action against Patrick, who consented to a DNA test, but the test was never conducted due to an error by DHS. The case stalled.

In the meantime, in 2014, Erica found herself in financial straits and agreed to give custody of LM to her parents, the Santuccis. The custody petition listed the father as “unknown.” The court entered an order awarding the Santuccis custody.

In September, 2014, the DNA test was finally conducted, and Patrick filed suit for custody against Erica. The chancellor set aside the Santucci custody order. The Santuccis and Erica jointly answered the complaint with a denial. Patrick counterclaimed against the Santuccis.

At trial the Santuccis withdrew their claim for custody. The chancellor ordered that Erica replace them against Patrick. The chancellor awarded custody to Erica, and Patrick appealed. His two main contentions on appeal were that Erica should not be awarded custody because she did not petition the court for custody, and that Erica had lost the natural parent presumption when she gave up custody to the Santuccis.

In Bradshaw v. Moore, handed down June 13, 2017, the COA affirmed, with a majority opinion by Judge Lee.

The court rejected Patrick’s argument that it was error for the chancellor to award custody to Erica with no pleading filed by her. The court pointed out that this was a R81(d) action, in which Erica was not required to file a pleading, and that it was Patrick himself who had brought Erica into the suit. The court also pointed out that the chancellor had replaced the Santuccis in the suit with Erica and rejected Patrick’s claim of surprise.

On the issue of the natural parent presumption, Judge Lee wrote:

¶11. Patrick also argues that the chancellor erred in awarding Erica sole custody of L.M. because Erica waived her natural-parent presumption when she consented to the Santuccis’ petition for custody of L.M. Patrick argues that, as a result, Erica’s claim for custody of L.M. was inferior to his.

¶12. For support, Patrick cites to Grant v. Martin, 757 So. 2d 264, 266 (¶10) (Miss. 2000), in which the Mississippi Supreme Court held that “a natural parent who voluntarily relinquishes custody of a minor child . . . has forfeited the right to rely on the existing natural[-]parent presumption.” However, the holding in Grant is not applicable to the instant case. Grant discusses a natural parent who relinquished custody to a third party, then later attempted to reclaim the natural-parent presumption against that third party. The natural parent presumption is a doctrine that “precludes a court from granting custody to a ‘third party’ over the objection of a natural parent absent clear and convincing evidence that the
natural parent has abandoned or deserted the child, has engaged in immoral conduct harmful to the child, or is an unfit parent.” Welton v. Westmoreland, 180 So. 3d 738, 744 (¶21) (Miss. Ct. App. 2015).

¶13. Here, the issue is an initial custody determination between two natural parents—not between a natural parent and a third party. Furthermore, the order granting custody to the Santuccis, which Patrick claims constituted a voluntarily relinquishment of parental rights akin to the facts in Grant, was set aside for lack of notice to Patrick. Thus, the chancellor correctly found that Grant was not applicable, and Erica has not—as Patrick contends—forfeited any natural-parent presumption. The presumption simply does not apply in this case.

¶14. Ultimately, the foremost consideration in child-custody cases is the best interest and welfare of the child. Lacoste v. Lacoste, 197 So. 3d 897, 902 (¶9) (Miss. Ct. App. 2016). The chancellor determined that L.M.’s best interests would be served by awarding Erica custody. The record shows that the chancellor’s findings were supported by substantial credible evidence. Accordingly, the chancellor did not err in awarding custody to Erica.

Very interesting distinction, and important to grasp: the natural parent presumption simply does not apply in a contest for custody between the natural parents. It only applies as between a natural parent and a third party.

It’s hard to conjure up a situation other than this rather unusual one in which a similar argument could be made. If the Santuccis had refused to get out of the case, Grant v. Martin would certainly have come into play as between the Santuccis and Erica, and Patrick could have exploited the situation to his benefit. But when they withdrew and the previous order had been set aside, the chancellor was left with a straightforward parent vs. parent dispute. And the natural parent presumption became irrelevant.

Dispatches from the Farthest Outposts of Civilization

October 13, 2017 § Leave a comment

October 11, 2017 § Leave a comment

Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”

The contest is underway and ends on November 3, 2017, at midnight. Happy voting!

A Few Thoughts on Process

October 10, 2017 § Leave a comment

  • The sole purpose of process is to give parties notice that there is a legal proceeding involving them. They are invited to participate.
  • Once a party is served with process, or once a party voluntarily appears and participates, the court has personal jurisdiction over that person for the entire remainder of the proceeding, all the way to final judgment, and no further process is necessary (But see the exception of R81 below).
  • When a party voluntarily submits to the personal jurisdiction of the court, no further process is necessary. A person can voluntarily submit to personal jurisdiction by filing a lawsuit as a plaintiff, or by filing a responsive pleading and/or counterclaim, or by simply appearing personally and participating.
  • R4 process requires the defendant to answer within 30 days.
  • R81 process requires the defendant to appear on a day certain. No answer is required, but the defendant may file an answer if he chooses, or if the court orders it. If the defendant does not appear on the specified day, or has not filed a responsive pleading contesting the matter on or before the specified day, then the court can hear the matter on the merits and rule accordingly.
  • We refer to the day specified in the R81 summons as the “return day” because process is “returnable” to that day.
  • If a matter can not be heard for whatever reason on the return day, then you must get an order signed that same day continuing the case to another day certain. And every continuance order thereafter has to be entered on the same day as that to which the case was continued. If you do not do this, your R81 process will be void, and you will have to re-issue process.
  • You do not need to issue process to the plaintiff when you file a counterclaim. That’s because the court already has personal jurisdiction over the plaintiff because he invoked the jurisdiction of the court. Once a party is in the court’s personal jurisdiction, you simply need to give notice per MRCP 5.
  • You can not obtain process by publication over a resident unless you first make diligent inquiry for that person’s whereabouts and then file an affidavit per R4(D)(4) that he is a resident but is not to be found in the state. Only after the affidavit is filed can the publication commence.

Musical Appellate Chairs

October 9, 2017 § Leave a comment

Catching up on the MSSC and COA news …

  • Justice Jess Dickinson left the MSSC September 15, 2017, to take over the Department of Child Protective Services. Dickinson served on the high court for nearly 14 years.
  • Judge David Ishee of the COA became Justice David Ishee of the MSSC on September 18, 2017, replacing Dickinson.
  • Governor Bryant tapped Senator Sean Tindell of Gulfport to take Ishee’s place on the COA, effective November 2, 2017. Tindell was an assistant district attorney for the Second Circuit Court District from 2002 to 2007, and has been in private practice since then. He was elected to the legislature in 2012, and served as Chairman of the Senate Judiciary A Committee.

In other news, former COA Judge Larry Roberts was appointed to serve temporarily as Circuit Judge in the Tenth District, taking the place of Judge Justin Cobb, who died September 9, 2017. Roberts is expected to serve until Governor Bryant names a replacement.

“Quote Unquote”

October 6, 2017 § 4 Comments

“The quality of mercy is not strain’d
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes;
‘Tis mightiest in the mightiest; it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice.”  —  William Shakespeare, The Merchant of Venice, Act IV, Scene I

“The power of just mercy is that it belongs to the undeserving. It’s when mercy is least expected that it’s most potent — strong enough to break the cycle of victimization and victimhood, retribution and suffering. It has the power to heal the cycle of psychic harm and injuries that lead to aggression and violence, abuse of power, mass incarceration.”  —  Bryan Stevenson

“If you want peace, work for justice.”  —  Pope Paul VI

IMG_8884satz

October 5, 2017 § 1 Comment

Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”

The contest is underway and ends on November 3, 2017, at midnight. Happy voting!

The Extracurricular Trap

October 3, 2017 § 3 Comments

Divorcing parents often want to haggle over who will pay for Junior to participate in Youth Soccer Premier League, gymnastics, and all of the other manifold interests and activities that occupy nearly every waking hour of today’s children. When at last the lawyers have gotten their clients to agree, the lawyers without a lot of thought produce a provision like this for the PSA:

The parties agree that they will each pay one-half of the cost for Junior to participate in extracurricular activities.

That thorny issue settled, the lawyers then turn their attention to more substantial matters — like who will get custody of the cocker spaniel.

Now, we know that the parties above want Junior to participate in youth soccer and gymnastics, but is that what they agreed to in that language above?

Before we go on, remember that when you call upon the judge to interpret the parties’ agreement, she is bound by the language contained in its four corners. She may not receive parol evidence to understand what was intended unless she first finds that the language is ambiguous. The language above is heartbreakingly unambiguous. So the parties are stuck with its plain meaning.

And what is its plain meaning?

The COA answered that question in the case of Thomas v. Crews, 203 So.3d 701, 706-7 (Miss. App. 2016). In that case, the chancellor had been called upon to resolve a dispute between the parties over the meaning of the term “extracurricular activities.” Here is what the court said:

¶ 22. The chancellor’s clarification of the term “extracurricular” is also supported by substantial credible evidence in the record. The chancellor clarified that “extracurricular expenses are those incurred through school. … [S]chool volleyball is different than competitive volleyball [.] … [I]f the Father wants to pay, that will be up to the Father.” [Fn 2] At times, Thomas’s hearing testimony made the same distinction that the court’s order does, but, at other times, Thomas’s testimony equated school volleyball and competitive volleyball as “extracurricular.” This confusion justified the chancellor’s clarification.

¶ 23. When first discussing the volleyball teams, Thomas clearly made a distinction between school volleyball as extracurricular and competitive volleyball as different. Thomas referred to “school volleyball” as “the first real extracurricular activity that [Lunden] was interested in.” Thomas then testified that Lunden expressed an interest in competitive volleyball. Detailing Thomas and Crews’s decision to allow Lunden to play competitive volleyball, Thomas testified, “[Crews] and I talked about it and … we agreed that we would split the expenses of the—the training fee and uniforms.” Thomas also made this distinction between the two types of volleyball when discussing Lunden’s volleyball schedule. In contrast, Thomas, on cross-examination, referenced competitive volleyball as an extracurricular activity, stating that Lunden’s “extracurricular activities are expanding. So if she’s playing volleyball in Hot Springs, Arkansas, if you want to see her then that’s where we have to go.” In light of this testimony, the chancellor did not abuse his discretion when he simply “remind[ed] both parties that extracurricular expenses are those incurred through school.”

[Fn 2] Extracurricular is defined as “outside the normal curriculum.” Extracurricular, The Oxford English Dictionary (2d ed. 1989). Extracurricular activities “are those sponsored by and usually held at school but that are not part of the standard academic curriculum.” Extracurricular Activities, definitions.uslegal.com/e/extracurricular-activities/.

So, to return to our hapless parties, the shared expenses “are limited to those that are those sponsored by and usually held at school but that are not part of the standard academic curriculum.” Not exactly what they intended at the time. At the end of the day, one party leaves happy, the other mad.

If the parties intend to include certain activities, then spell them out. Don’t rely on a catch-all phrase that might have unintended consequences.

Forum Shopping in Divorce Cases

October 2, 2017 § Leave a comment

I posted here previously about the Lewis v. Pagel case, which changed the law of venue in divorce cases. It held that venue relates to personal jurisdiction, which can be waived or conferred voluntarily, rather than subject matter jurisdiction, which may not be waived or conferred voluntarily. The law up to Pagel had been that divorce venue conferred subject matter jurisdiction. Pre Pagel, if venue was wrong, the court was deprived of subject matter jurisdiction and any judgment it entered would be void.

In that same post I questioned whether Pagel would give rise to forum shopping. If personal jurisdiction can be waived, and venue is a function of personal jurisdiction, then venue should likewise be waivable.

How would that work? One example would be where two pro se litigants in Jasper County decide they can get an ID divorce quicker and easier in Jones County. So they file there. Or in a contested case the lawyers, after exhausting negotiations, mutually decide with their clients to file for divorce in Hinds County where their offices are, instead of in Simpson County where the parties live. Can or should the courts in Jones and Hinds entertain those actions?

Well, the language of MCA 93-5-11 has a lot to say about it:

“All complaints, except those based solely on the ground of irreconcilable differences, must be filed in the county in which the plaintiff resides, if the defendant be a nonresident of this state, or be absent, so that process cannot be served; and the manner of making such parties defendants so as to authorize a judgment against them in other chancery cases, shall be observed. If the defendant be a resident of this state, the complaint shall be filed in the county in which such defendant resides or may be found at the time, or in the county of the residence of the parties at the time of separation, if the plaintiff be still a resident of such county when the suit is instituted.

A complaint for divorce based solely on the grounds of irreconcilable differences shall be filed in the county of residence of either party where both parties are residents of this state. If one (1) party is not a resident of this state, then the complaint shall be filed in the county where the resident party resides.
Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.”

The operative verbs are must and shall, so the statute mandates where venue will lie. Pagel, on the other hand, says that venue only confers personal jurisdiction, which may always be waived.

So which controls? My best guess is that most chancellors will say that the statute controls, and a divorce filed contrary to the statute will be transferred to the proper venue. The right to waive personal jurisdiction would have to yield to the mandatory language of the statute.

But that’s just me. Your local experience may vary, and there are nine justices on the MSSC, as well as another ten on the COA, who could see it completely differently. Stay tuned.

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