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.

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