Third-Party Custody with a Twist

October 30, 2019 § 2 Comments

When the Ballards, Candice and Marshall, were divorced from each other, the chancellor awarded custody to Marshall’s parents based on hearsay evidence. The MSSC reversed and remanded in Ballard v. Ballard, 255 So. 3d 126 (Miss. 2017).

On remand the chancellor awarded custody of the parties’ three children to Marshall. The catch is that Marshall is not the biological father of the youngest child, Jill, who was the product of a marital-separation affair. Candice appealed, arguing that she should have prevailed as to Jill based on the natural-parent presumption.

The MSSC affirmed in Ballard v. Ballard, decided August 29, 2019. Justice Beam wrote for the court:

¶12. … [Candice] argues that Marshall’s having acted in loco parentis for Jill was not enough to overcome the natural-parent presumption with regard to Candice’s custody of Jill. [Fn omitted] Candice correctly states that “[t]he law recognizes that parents are the natural guardians of their children, and ‘it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.’” Davis v. Vaughn, 126 So. 3d 33, 37 (Miss. 2013) (quoting In re Dissolution of Marriage of Leverock and Hamby v. Leverock, 23 So. 3d 424, 429 (Miss. 2009)).

However, the presumption in favor of the parent may be rebutted 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.” Id. (quoting Smith v. Smith, 97 So. 3d 43, 46 (Miss. 2012)). “If the natural-parent presumption is successfully rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child’s best interests.” Id. (citing Smith, 97 So. 3d at 46).

Id. (quoting Smith v. Smith, 97 So. 3d 43, 46 (Miss. 2012)). “If the natural-parent presumption is successfully rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child’s best interests.” Id. (citing Smith, 97 So. 3d at 46).

¶13. Candice contends that this case is controlled by In re Waites v. Ritchie, 152 So. 3d 306 (Miss. 2014). In Waites, the mother sought to modify a custody agreement. Id. at 307. She subsequently notified T.J., her child’s biological father who had joined her petition seeking custody. Id. Although her husband, Scott, had cared for the child from the beginning, the chancellor excluded Scott from the Albright consideration because he was not a natural parent; the chancellor awarded full custody to the mother. Id. However, the chancellor allowed Scott and T.J. visitation. Id. Scott appealed, and the Court of Appeals reversed and remanded, finding that Scott should have been considered on equal footing with the natural parents. Id. The mother and T.J. filed a petition for a writ of certiorari, which this Court granted. Id. This Court found that the chancellor had properly excluded Scott from consideration. Id.

¶14. Candice further argues that the chancellor erroneously relied on a Court of Appeals case, Welton v. Westmoreland, 180 So. 3d 738 (Miss. Ct. App. 2015), to support awarding Marshall custody of Jill. In Welton, the natural father sought a modification of custody of his daughter Alexice and subsequently amended his complaint to seek custody of his daughter Justice. Id. at 740. Although Daniel was not Justice’s biological father, she believed he was until she was twelve years old. Id. Her biological father abandoned her and, after her birth, had never made an attempt to see her. Id. While Daniel knew he was not Justice’s biological father, he raised her like she was his own from the time she was four months old. Id. Further, Justice’s mother requested that Justice retain Daniel’s last name. Id.

¶15. In determining custody of Justice, the court acknowledged that,

[i]n general, the natural parent presumption 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. Id. at 744. “The chancellor did not find that any of the grounds for overcoming the natural parent presumption had been established,” but he did find that, “on the ‘unique’ facts of this case, Daniel ‘stands in the place of a natural parent for purposes of custody of Justice.’”Id.

¶16. Welton relied upon two Supreme Court cases, Griffith v. Pell and J.P.M. v. T.D.M., for guidance. While the facts in Pell and J.P.M. vary slightly from the facts in Welton, the Court of Appeals appropriately extended the reasoning in those cases to apply to Welton, and, we find that the same principles apply to the present case. In Pell, as discussed in Welton, this Court held that “a husband who learned during divorce proceedings that he was not the biological father of a child born just prior to the marriage could be granted visitation and, custody over the objections of his wife (the child’s mother).” Id. at 745 (citing Griffith v. Pell, 881 So. 2d 184, 185-87 (Miss. 2004)). Moreover, as discussed in Welton, in J.P.M., this Court “affirmed an order granting custody to a husband who had learned during divorce proceedings that he was not the biological father of a child born to the marriage” because “[h]e was deemed the ‘father in fact’ and was not required to present additional evidence to rebut the natural parent presumption.” Id. (citing J.P.M. v. T.D.M., 932 So. 2d 760, 762-70 (Miss. 2006)).

¶17. This Court reasoned in both Pell and J.P.M. 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. Id. (quoting Waites, 152 So. 3d at 312).

¶18. In Welton, the Court of Appeals found that the facts necessary to overcome the natural-parent presumption were present but questioned whether the facts were sufficient to place Daniel in the position of a natural parent for purposes of Justice’s custody because Daniel had not been defrauded like the fathers in Pell and J.P.M. Id. at 747.

¶19. Welton held, “although the relevant Supreme Court decisions do not directly address the unique facts of this case, Pell’s reasoning and Waites’s emphasis on whether the biological father is ‘really in the picture’ are instructive and should control.” Id. “[T]he mere existence of a biological father who abandoned a child years ago should not be used ‘to defeat an existing father-child relationship when [that] biological father [is not] seeking to assume care, support and nurturance of the child.’” Id. (alterations in original) (quoting Pell, 881 So. 2d at 187). The mother led Justice to believe that Daniel was her father and confirmed that Justice’s biological father had abandoned her at birth. Therefore, the Welton court affirmed the chancellor, who had found “that Pell and subsequent Supreme Court decisions provided legal authority to grant physical custody of Justice to Daniel.” Id. at 748.

¶20. Welton logically extended the principles articulated in Pell and J.P.M.. The unique facts of Welton—allowing an in loco parentis figure to have custody—also are present here. There was no question that Marshall acted in loco parentis to Jill. Further, the trial court’s in loco parentis finding was neither raised as an issue on appeal nor was it overturned by the appellate court in Ballard.

¶21. Marshall always supported, cared for, and treated Jill as his own child, even though he knew she was not his biological child. Candice concedes that Marshall has always provided for Jill, as he did for John and Jane. She admitted even that Marshall is the only father Jill has ever known. Further, no evidence was presented that Candice sought support of Jill from the biological father. In fact, the biological father received notice of the hearing and did not attend, nor has he ever attempted to visit or to support Jill. It is clear that the biological father is absent.

¶22. Lastly, Candice argues that Welton is both distinguishable and predates this Court’s ruling in Miller v. Smith, 229 So. 3d 100 (Miss. 2017). This Court finds, however, that the facts of Miller are dissimilar. There, the Court found that the circumstances did not give Miller in loco parentis status. Miller, 229 So. 3d at 105. Miller had been sentenced to prison for eighteen months when the minor child, Smitty, was only a few months old. Id. at 104. After prison, Miller did not remain a constant in Smitty’s life. Id. Miller provided no financial assistance to Smitty, nor did he visit Smitty while his mother was in prison during 2012 and 2013. Id. Therefore, Miller did not rebut the natural-parent presumption, and the Court found substantial evidence in the record to support the chancellor’s conclusion that Miller did not stand in loco parentis. Id. at 104-105.

¶23. Accordingly, this Court finds that the chancellor appropriately held that custody of Jill could be awarded to Marshall pending an Albright analysis.

Justice Maxwell added a specially concurring opinion, joined by Randolph, Beam, Chamberlin, and Griffis, that concludes, “Here, I concur with the majority to the extent it backs away from the strong language in Waites and reaffirms Pell and T.D.M.’s holding that, under unique circumstances like these, a nonbiological parent’s in loco parentis status can be used to reach an Albright custody analysis without having to first rebut the natural-parent presumption.”

In Loco Parentis and the Natural Parent Presumption

August 14, 2019 § 1 Comment

Most all of us who spend time in chancery court are familiar with this melancholy scenario or something similar: mom and dad are using drugs and are living a shiftless existence; they leave their baby with grandparents; then, after a while, the parents — or one of them — get cleaned up and appear suddenly demanding to reclaim the baby. A courtroom fight ensues, with hard feelings and injured relationships.

We know from Davis v. Vaughn, 126 So. 3d 33, 36 (Miss. 2013) that the mere fact that the grandparents have stood in loco parentis is not enough to defeat the claim of the natural parent. In Smith v. Smith, 97 So. 3d 43, 46 (Miss. 2012), the court said, ” … grandparents who stand in loco parentis have no right to the custody of a grandchild, as against a natural parent, unless the natural-parent presumption is first overcome by a showing of abandonment, desertion, detrimental immorality, or unfitness on the part of the natural parent.”

The latest case on point came down from the COA on June 25, 2018, in Seale v. Thompson. It won’t take you long to read Judge McCarty’s succinct six-page opinion that cites only two cases (Davis and Smith) in the body and Albright in a footnote. The decision affirms the chancellor’s ruling that the grandfather had overcome the natural-parent presumption by establishing his son-in-law’s unfitness due to drug abuse. It’s a sad and all-too-familiar scenario for those of us who toil in chancery.

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?

An Unusual In Loco Parentis Case

January 8, 2014 § 6 Comments

Only last month we discussed the MSSC decision in Vaughn v. Davis, which dealt with the rights of a natural parent as opposed to those of a party who has stood in the shoes of the parent and assumed parental responsibility, a status we refer to as in loco parentis. The court in that case said, “‘[t]he doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption,’ although it may be a factor in determining whether the presumption has been rebutted [citation omitted].”

Vaughn was a case in which the maternal grandmother had acted in loco parentis toward the child after the death of the child’s mother. When the child’s father showed up to claim the child, the grandmother balked, and the litigation ensued. Since the father was not shown to have abandoned or deserted the child, and had not been guilty of unsuitable conduct, his rights trumped those of the grandmother. The fact pattern in Vaughn is fairly typical for these type cases.

How does the Vaughn rationale apply, however, in a case where the in loco parentis party believed in good faith that he was the father, but was later proven not to be when paternity was questioned, and DNA testing proved that the in loco parentis party was not the natural father?

That was the question before the COA in JSW vs. AWR and TJS, decided on December 3, 2013, less than a month after the MSSC decision in Vaughn.

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. 

Jake appealed. Judge Maxwell’s opinion, for a divided court, is somewhat lengthy for this blog, but I think it’s worth your time to read. Here are the pertinent parts:

¶18. This is certainly a unique custody dispute. More typically, the custody dispute is between the two natural parents or between a parent and non-parent, such as a grandparent. In a child-custody determination between two natural parents, the chancellor considers the factors under Albright to determine which natural parent custody should be awarded custody, based on the best interest of the child. Lucas v. Hendrix, 92 So. 3d 699, 705 (¶17) (Miss. Ct. App. 2012) (citing Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983)). However, in a child-custody determination between a natural parent and a third party, such as a grandparent, the law presumes that it is in the best interest of the child for the natural parent to have custody. Id. at 705-06 (¶17) (citing McKee v. Flynt, 630 So. 2d 44, 47 (Miss. 1993)); see Lorenz v. Strait, 987 So. 2d 427, 434 (¶41) (Miss. 2008) (holding that, because“[g]randparents have no legal right [to] custody of a grandchild, as against a natural parent,” the natural-parent presumption applies in custody cases between grandparents and natural parents).

¶19. The natural-parent presumption is “not unassailable.” In re Custody of Brown, 66 So.3d 726, 728 (¶10) (Miss. Ct. App. 2011) (citing Vaughn v. Davis, 36 So. 3d 1261, 1264 (¶10) (Miss. 2010)). But for the third party to rebut this presumption, he must clearly show “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.” In re Smith, 97 So. 3d at 46 (¶9) (citing Vaughn, 36 So. 3d at 1264-65 (¶¶10-13); In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 429-30 (¶20) (Miss. 2009); Carter v. Taylor, 611 So. 2d 874, 876 (Miss. 1992)).

¶20. In this case, applying precedents concerning custody determinations between a natural parent and a grandparent, the chancellor categorized Jake as a third party. And because the chancellor also found Jake could not show Anne or Tommie had abandoned or deserted Vanessa, acted so immorally as to be detrimental to Vanessa, or was otherwise unfit, the chancellor imposed the legal presumption that it was in Vanessa’s best interest for Anne or Tommie to be awarded custody.

¶21. But there is a body of more relevant cases dealing with this very scenario—when a husband acts under the assumption that he is the father of the child his wife bore. And in these cases, the doctrine of in loco parentis has been used to put the presumed father on equal footing with the natural parent.

II. In Loco Parentis

¶22. In Griffith v. Pell, 881 So. 2d 184, 185 (¶¶2-3) (Miss. 2004), it came to light during divorce proceedings that the husband was not the biological father of the child born to the marriage. The chancellor granted partial summary judgment to the wife, finding the husband had no right to custody of the child. Id. at (¶3). The supreme court reversed based on the doctrine of in loco parentis, which the court found clearly applied. Id. at 186 (¶6). The supreme court held: “Merely because another man was determined to be the minor child’s biological father does not automatically negate the father-daughter relationship held by [the husband] and the minor child.” Id. Further, the supreme court cited with approval other jurisdictions that have held full-blown parental rights do not spring merely from a biological connection. In these cases, the burden is on the biological father to show a sufficient relationship with the child to entitle him to parental rights. Id. at 186-87 (¶9). The burden is not, as the chancellor found in Jake’s case, on the husband to prove that the biological father’s natural-parent presumption has been rebutted.

¶23. In fact, two years after Pell, in J.P.M. v. T.D.M., 932 So. 2d 760, 768 (¶21) (Miss. 2006), the supreme court rejected the very reasoning the chancellor used in this case to exclude Jake as a potential custodial parent. Just as in Pell, during divorce proceedings, the wife revealed that her husband, who had been the primary caretaker of the child since the separation, was not the biological father. Yet this time, the chancellor awarded the husband custody as the “father in fact.” Id. at 762 (¶1).

¶24. On appeal, the wife asserted that, because her ex-husband was not the biological father, he should be considered a third party in their custody dispute. The wife asked the supreme court to apply the line of cases holding that a third party “can only obtain custody” upon showing the natural parent has either abandoned the child, the natural parent’s conduct is so immoral as to be detrimental to the child, or the natural parent is mentally or otherwise unfit for custody. Id. at 767-68 (¶20-21) (citing Keely v. Keely, 495 So. 2d 452 (Miss. 1986); Sellers v. Sellers, 638 So. 2d 481 (Miss. 1994)). But the supreme court found “the instantsituation distinguishable” because, in the cases the ex-wife cited, the third parties “were an aunt and a grandfather, respectively,” whereas in J.P.M., the ex-husband had been the child’s “‘legal father’ since her birth.” Id. at 768 (¶21). “Thus, he ha[d] existing legal rights and obligations that the third parties in [the cases the wife cited] did not.” Id.

¶25. The case the supreme court found instead controlled was Pell and its particular application of the doctrine of in loco parentis. J.P.M., 932 So. 2d at 768 (¶21) (citing Pell, 881 So. 2d 184). So the court found the chancellor, by awarding the husband custody, had reached the right result, using the wrong legal doctrine. While rejecting that the husband was the “father in fact,” the supreme court found he still had parental rights springing from the doctrine of in loco parentis, as applied in Pell. J.P.M., 932 So. 2d at 768 (¶21)

¶26. In J.P.M., Presiding Justice Cobb wrote a specially concurring opinion expressing her concern that in loco parentis was too broad a doctrine to apply to these scenarios. Id. at 779-85 (¶¶64-87) (Cobb, P.J., specially concurring). Because it is not just deceived husbands that may stand in loco parentis, Justice Cobb advocated using the more factually tailored doctrine of equitable estoppel or equitable fatherhood as justification for the rebuttal of the natural-parent presumption. Id.

¶27. Justice Cobb’s warning proved to be prophetic. Eight years later, in In re Smith, grandparents argued that because they stood in loco parentis, as that doctrine is defined, they stood on equal footing with the natural mother. In re Smith, 97 So. 3d at 46-47 (¶4). The supreme court rejected this argument, finding that “[t]he doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption.” Id. at 47 (¶10). But the court clarified that it was not overruling Pell and J.P.M. Rather, those cases represented “very limited, unique situations” where “several facts” led to the rebuttal of the natural-parent presumption—the husbands’ standing in loco parentis being one of  them. In re Smith, 97 So. 3d at 47 (¶11). Because the husbands also “had supported, cared for, and treated the child[ren] as their own,” because they had been required to pay child support (“with the burden should go the benefit”), and because “the biological fathers were not really in the picture,” the natural-parent presumption had been overcome. Id.

¶28. Here, the chancellor expressly found Jake stood in loco parentis. He also found Jake supported, cared for, and treated Vanessa as his own, even after he learned he was not her biological father—an action the chancellor found “quite admirable.” In the divorce proceeding, Jake had been ordered to pay half of Vanessa’s day-care expenses, and the only reason he did not have to pay Anne child support was that he shared equal custody time and expenses with her. The only difference between this case and Pell and J.P.M. is that, in those cases, the natural father either disclaimed any rights to the child or could not be conclusively established. See In re Smith, 97 So. 3d at 47 (¶11).

¶29. Based on the chancellor’s own findings of fact, we find Jake is in that “very limited, unique situation” where Pell and J.P.M. control. Thus, the chancellor erred by instead applying the line of cases where a third party can only rebut the natural-parent presumption by showing the natural parents had abandoned or deserted their child or were detrimentally immoral or otherwise unfit.

¶30. Because we find Jake had overcome the natural-parent presumption, he should have been considered on equal footing with Anne and Tommie in the chancellor’s Albright analysis. We reverse the custody award and remand for the chancery court to conduct an Albright analysis that includes Jake as a potential custodial parent.

So the case travels back to the chancellor to add Jake into the Albright mix and make a determination as to custody among the three parents: two natural and one in loco.

In the meantime, the appellees’ attorneys have filed for rehearing, and either party unhappy with the COA’s ultimate decision will likely ask for cert on the issue. That would be welcome, because any clarity the courts can bring to this head-spinning area of our law would be a great relief.

A Primer on Third-Party Custody

December 11, 2013 § 2 Comments

The cases on third-party custody can be confusing in their own right, but when one adds into the mix the cases where third parties acting in loco parentis also claim custody, it can become downright confusing.

The MSSC case of Davis v. Vaughn, decided November 21, 2013, includes a welcome exposition on the subject that you just might want to save for future reference. It stands for the proposition that a third party’s in loco parentis status, standing alone, is not enough to overcome the natural-parent presumption. Here is the key language from Justice Kitchen’s opinion for a unanimous court:

¶10. We first address Davis’s assertion that parties standing in loco parentis should be able to seek custody of the child without having to prove that the natural parent has relinquished his or her parental rights. The law recognizes that parents are the natural guardians of their children, and “it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.” In re Dissolution of Marriage of Leverock and Hamby, 23 So. 3d 424, 429 (Miss. 2009) (citing K.D.F. v. J.L.H., 933 So. 2d 971, 980 (Miss. 2006)). See also Miss. Code Ann. § 93-13-1 (Rev. 2013) (“The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education . . . . If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent.”). However, the presumption in favor of the parent may be rebutted 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.” Smith, 97 So. 3d at 46 (citing Vaughn II, 36 So. 3d at 1264-65 (Miss. 2010); Leverock, 23 So. 3d at 429-30; Carter v. Taylor, 611 So. 2d 874, 876 (Miss. 1992)). If the natural-parent presumption is successfully rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child’s best interests. Id. (citing In re Custody of M.A.G., 859 So. 2d 1001, 1004 (Miss. 2003); Logan v. Logan, 730 So. 2d 1124, 1127 (Miss. 1998)).

¶11. A person in loco parentis is one who stands in place of a parent, having assumed the status and obligations of a parent. Favre v. Medders, 241 Miss. 75, 81, 128 So. 2d 877, 879 (Miss. 1961). “Any person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own child, is said to stand in loco parentis.” W.R. Fairchild Constr. Co. v. Owens, 224 So. 2d 571, 575 (Miss. 1969) (citing Favre, 128 So. 2d 877). In loco parentis status carries with it the same duties and liabilities that belong to a natural parent, including a right to custody of the child “as against third persons.” Favre, 128 So. 2d at 879 (emphasis added) (citations omitted).

¶12. Although this doctrine grants third parties certain parental rights, such rights are inferior to those of a natural parent. Thus, in a custody dispute between one standing in loco parentis and a natural parent, the parent is entitled to custody unless the natural-parent presumption is rebutted. Smith, 97 So. 3d at 46-47. The court may not consider granting custody to a third party, including one standing in loco parentis, unless and until the third party rebuts this presumption. In other words, “[t]he doctrine of in loco parentis does not, by itself, overcome the natural-parent presumption,” although it may be a factor in determining whether the presumption has been rebutted. Id. at 46-47.

¶13. Giving preference to natural parents, even against those who have stood in their place, honors and protects the fundamental right of natural parents to rear their children. Vance v. Lincoln County Dep’t of Pub. Welfare, 582 So. 2d 414, 417 (Miss. 1991) (citing Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S. Ct. 438, 88 L. Ed. 645 (1944)). This concept is hardly new:

Nature gives to parents that right to the custody of their children which the law merely recognizes and enforces. It is scarcely less sacred than the right to life and liberty, and can never be denied save by showing the bad character of the parent, or some exceptional circumstances which render its enforcement inimical to the best interests of the child.

Moore v. Christian, 56 Miss. 408 (1879). See also Prince, 321 U.S. at 166 (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”) (citing Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, (1925)). Furthermore,

[A]s a consequence of this, it is presumed to be for the real interest of the child that it should be in the custody of its [natural parent], as against collateral relatives, and he, therefore, who seeks to withhold the custody against the natural and legal presumption, has the burden of showing clearly that the [parent] is an unsuitable person to have the custody of his [or her] child; or that, however moral a [person] may be, he [or she] had abandoned his child, contributing nothing to its support, taking no interest in it, and permitting it to remain continuously in the custody of others, substituting such others in his own place so that they stand in loco parentis to the child, and continuing this condition of affairs for so long a time that the affections of the child and of the foster parents have become mutually engaged to the extent that a severance of this relationship would surely result in destroying the best interest of the child.

Hibbette v. Baines, 78 Miss. 695, 29 So. 80 (1900). In other words, by allowing one’s child to remain in another’s custody, without providing any support to or pursuing a relationship with the child, a natural parent may, over time, relinquish his or her parental rights in favor of a de facto parent. More than a century later, the Court continues to recognize these legal maxims, declaring in Smith that “grandparents who stand in loco parentis have no right to the custody of a grandchild, as against a natural parent, unless the natural-parent presumption first is overcome by a showing of abandonment, desertion, detrimental immorality, or unfitness on the part of the natural parent.” Smith, 97 So. 3d at 47-48 (Ethredge v. Yawn, 605 So. 2d 761, 764, 766 (Miss. 1992)).

¶14. Davis has cited no authority to support our overruling this line of precedent. Instead, she relies on the facts in her case, arguing that, without a change in the law, there is no “real legal benefit” to the doctrine of in loco parentis. But, this Court clearly has recognized that the doctrine protects those standing in the shoes of the natural parents from outside intrusions, and these rights are constitutionally guarded. For example, in Britt v. Allred, 199 Miss. 786, 25 So. 2d 711 (1946), this Court held that parties who had taken in and cared for an orphaned child stood in loco parentis to the infant and could not be deprived of their “parental rights” without notice and an opportunity to be heard. Id. at 789-90 (emphasis added) (citations omitted). That decision noted that this holding was founded upon the “universal rule governing due process of law,” as recognized in our state and federal constitutions. Id. See U.S. Const. amend. XIV; Miss. Const. art. 3, § 14.

¶15. 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 the best interests of the child. Parental rights, as is true of other fundamental rights, can be forfeited or taken away, and our law does recognize some means by which third parties can overcome the law’s preference of natural parents. See Smith, 97 So. 3d at 46 (listing the ways in which the natural-parent presumption may be rebutted). Consistent with longstanding legal authority, requiring Davis first to demonstrate that Vaughn had relinquished his right to parent his child, was not an undue burden. The law protects the best interests of the child by its recognition that a natural parent’s “liberty interest . . . in the care, custody, and management of their children and families,” is not an absolute right. G.Q.A. v. Harrison County Dep’t of Human Res., 771 So. 2d 331, 335 (Miss. 2000) (citing Santosky v. Kramer, 455 U.S. 745, 753-54, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).

This is the latest iteration of the Vaughn case. You can read an earlier post that mentions it here.

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