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.



In Loco Parentis Child is not a Wrongful Death Beneficiary

January 30, 2014 § Leave a comment

The MSSC ruled last week that the child of an in loco parentis parent is not a wrongful death beneficiary under our statute.

The outcome would seem to be preordained, given that wrongful death is entirely a creature of statute, which must be strictly construed. Justice Randolph, writing for the majority in Estate of Smith v. Smith, handed down January 23, 2014, summed it up: 

¶9. This Court has recognized the doctrine of in loco parentis for more than a century. Fortinberry v. Holmes, 42 So. 799, 799 (Miss. 1907). Specifically, the doctrine is defined as follows:

A person in loco parentis may be defined as one who has assumed the status and obligations of a parent without a formal adoption. The rights, duties and liabilities of one standing in loco parentis are the same as those of a natural parent. Whether the relationship exists is a matter of intention and of fact to be deduced from the circumstances of the particular case.

Farve v. Medders, 128 So. 2d 877, 879 (Miss. 1961).

¶10. In short, Halley is not a wrongful-death beneficiary because she is not Justin’s child, as defined in Mississippi Code Section 11-7-13. See Miss. Code Ann. § 11-7-13 (Rev. 2004). We strictly construe Section 11-7-13. Smith v. Garrett, 287 So. 2d 258, 260 (Miss. 1973). Moreover, this Court lacks the power to expand the definition of “child.” See Burley v. Douglas, 26 So. 3d 1013, 1020 (Miss. 2009). The relevant part of the statute is as follows:

. . . Damages for the injury and death of a married man shall be equally distributed to his wife and children . . . . The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15. [Citation omitted]

 . . . Any rights which a blood parent or parents may have under this section are hereby conferred upon and vested in an adopting parent or adopting parents surviving their deceased adopted child, just as if the child were theirs by the full-blood and had been born to the adopting parents in lawful wedlock.

Miss. Code Ann. § 11-7-13 (Rev. 2004) (emphasis added). In addition to covering natural children, the statute includes express language that brings both adopted children and illegitimate children within the purview of “children.” The statute is silent as to in loco children. Since this Court must strictly construe the statute, we find that in loco children do not fall within the definition of children in Mississippi’s wrongful-death statute.

Justice Kitchens wrote an interesting dissent that would have reversed not based on the father’s status in loco parentis, but rather on the fact that the deceased father was not only the presumed father, but also that there had been “several separate judicial proceedings in which [he] had been recognized as Halley’s legal father,” and there had never been any judicial or extra-juducial disestablishment of parentage. ¶ 21 (emphasis in original).   

This is another of those cases where a reader who is unacquainted with the case is left scratching his or her head over two apparently completely different readings and/or interpretations of what is in the record. If Justice Kitchens is right in his reading of the record, is Hallie not a wrongful-death beneficiary?

I have no quarrel with the majority’s application of the law to its statement of the facts, but I do wonder nowadays whether the 1907 language of Fortinberry is now hopelessly antiquated. In light of the third-party custody cases and, now, this case, can it be said accurately any more, a là Fortinberry, that “The rights, duties and liabilities of one standing in loco parentis are the same as those of a natural parent”?


June 29, 2011 § 1 Comment

It is axiomatic that as between a natural parent and a third party, it is presumed that the best interest of the child will be preserved by being in the custody of the natural parent. Sellers v. Sellers, 638 So.2d 481, 486 (Miss. 1994). This natural parent presumption over third-party custody has been the subject of prior posts here and here.

In Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), the supreme court reversed a chancellor’s ruling that a temporary agreement to change custody was enough to overcome the presumption.  In Wells v. Smith, decided May 31, 2011, by the COA, the appellate court rejected in loco parentis as a basis to overcome the presumption.

In Brown v. Hargrave, decided June 28, 2011, the COA rejected yet another assault on the presumption, this time based on the judge’s finding that the totality of the circumstances and the plaintiff’s long-term care of the child.  Relying again on Vaughn v. Davis, the found that the trial judge applied an incorrect legal standard, and sent the case back to the chancellor for a rehearing to determine whether some other basis exists to overcome the presumption.

I’m going to take up for the chancellor in this one so as to make an important point. Chancellors are sometimes (too often I might add) confronted with a situation in which it is obvious that one party has no business with custody of the child, and that the child would be far better off with the other party. The problem is that the case is sloppily tried, points are not made in the record, evidence is not introduced, and the chancellor is left with having to do what he or she fervently believes to be in the best interest of the child without an adequate supporting record. The usual result is a remand, or, in some cases a rendered reversal.

If you don’t want to snatch defeat from the jaws of victory, put on as strong a case of unfitness as you can muster. Put on proof of circumstances that are strong enough to rise to the level of abandonment. Make as strong a case as you can. If you leave the judge without much to hang his decision on, it may end up that your client is the unhappy one.


June 6, 2011 § Leave a comment

In the COA case of Wells v. Smith, decided May 31, 2011, the appellate court was again confronted with a painful reality that chancellors are seeing more and more frequently:  the situation where a child is raised by the grandparents because one or both of the natural parents has chosen to be absent from the child’s life, and the natural parent awakens one day to assert his or her parental rights.

In this most recent case, Tara Wells had given birth to a son, Jason, out of wedlock in 2003.  Robert Johnson was Jason’s natural father.  Tara and Jason lived with her mother, Sarah Smith, and her husband, William, for a time after the birth while she attended college.  Tara’s college education spanned three years, and her time spent with Jason tapered off the longer she was in school.  In April, 2006, Tara and Robert were married, and they moved to Washington, DC, where Robert was stationed with the military.  Tara took Jason with her to live in DC, but returned him to live with the Smiths a short time later.  After three months of marriage, Tara and Robert separated.  Tara stayed in the DC area and Jason split time between there and Mississippi until November, 2006, when he returned to Mississippi for good.

In May, 2007, Tara signed over medical guardianship of Jason to the Smiths.  Tara’s contact with Jason grew less and less.  She allowed Jason to live with the Smiths, never asking to take him to live with her.  In the meantime, Robert Johnson had been incarcerated in Virginia.  In June, 2008, the Smiths filed pleadings in Mississippi seeking permanent custody of Jason.  On October 1, 2008, they filed a petition for adoption and termination of Tara’s and Robert’s parental rights.

In December, 2008, Tara began living with another man, Neil Baker, and they were engaged in March, 2009, despite the fact that Tara was still married to Robert Johnson.  Tara and Neil moved to Arizona.  She was financially dependent on Neil, and he had never met Jason.

Also in December, 2008, Robert Johnson joined in the Smiths’ pleading for custody and consented to their being granted custody; he also consented to and joined in the petition for adoption.

In April, 2009, the court appointed a GAL.  The GAL report recommended that the child stay with the Smiths.  The GAL report, as well as the weight of proof at trial, established that the Smiths were the only mother and father Jason had ever known, and that their home was the only home he had ever had.

The chancellor relied on the doctrine of in loco parentis, in part on the GAL’s recommendation, to overcome the natural parent presumption and to find, applying the Albright factors, that Jason’s best interest would best be served by staying with the Smiths rather than his mother.

On appeal, the court analogized the case to the recent supreme court decision in Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), in which the court reversed and remanded for the chancellor to determine whether the father had relinquished the natural-parent presumption for reasons other than forfeiture by agreeing to a temporary custody order.  The supreme court did not want to extend Grant v. Martin, 757 So.2d 264, 266 (Miss. 2000), which held that a parent’s agreement to a guardianship or custody judgment in a third party does create a forfeiture of the natural-parent presumption, to temporary orders, and wanted the chancellor to evaluate the proof to determine whether there was some other basis upon which to proceed.

The Vaughn decision pointed out the case of In re Leverock, 23 So.3d 424 (Miss. 2009), in which the natural father was found to have deserted his child by avoiding his moral and legal duties and parental obligations for in excess of two years.

The COA said in Wells:

“Although Vaughn was a case where the chancery court improperly found relinquishment of the natural-parent presumption due to the signing of a temporary custody order, it is analogous to this case. Here, the chancellor improperly relied on the doctrine of in loco parentis to find that the natural-parent presumption had been relinquished. We have been able to find no precedent for using that doctrine to overcome the natural-parent presumption. However, given the similarity of the facts in this case to Leverock and Vaughn, this case should be remanded to the chancery court to determine whether Tara deserted Jason, thus relinquishing her right to the natural-parent presumption. On remand, the chancery court should consider Jason’s circumstances at the time of remand.”  [Emphasis added]

As in Davis, then, the Wells court directed the chancellor to find a basis other than the one he originally asserted as a basis to accomplish the best interest of the child.  In Wells, the rejected basis was in loco parentis.  I would guess that the definition of desertion to be applied by the trial judge will be MCA § 93-15-103(3).

The bottom line is that if you’re still barking up the in loco parentis tree, you are barking up the wrong tree.  It simply won’t form the basis to overcome the presumption in favor of the natural parent.  You’ll have to find another way to go in these very difficult, gut-wrenching cases.

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