Desertion and its Proof

March 18, 2020 § Leave a comment

The COA’s decision in a recent case is a reminder that overcoming the natural-parent presumption requires clear and convincing evidence.

Judge Tindell wrote the 9-1 opinion that reversed the trial court ruling in Owens v. Owens, handed down December 17, 2019:

¶6. In child-custody cases, the best interest of the child is the paramount concern. Burge v. Burge, 223 So. 3d 888, 899 (¶37) (Miss. Ct. App. 2017). “In custody battles between a natural parent and a third party, it is presumed that it is in the child’s best interest to remain with his or her natural parent.” Id. (quoting Smith v. Smith, 97 So. 3d 43, 46 (¶8) (Miss. 2012)). Thus, a “third party must first clearly rebut the natural-parent presumption or preference” to receive custody. Smith, 97 So. 3d at 46 (¶8). As our caselaw establishes:

[T]he natural-parent presumption may only 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.

In re Waites, 152 So. 3d 306, 311 (¶14) (Miss. 2014) (internal quotation marks omitted). Where a third party successfully rebuts the presumption, the chancellor must conduct an Albright analysis to determine if third-party custody serves the child’s best interest. Smith, 97 So. 3d at 46 (¶8).

¶7. Here, the chancellor concluded that clear and convincing evidence demonstrated Farrah had deserted Tiffany. “Desertion is defined as for[]saking one’s duty as well as a breaking away from or breaking off associations with some matter involving a legal or moral obligation or some object of loyalty . . . .” Neely, 194 So. 3d at 156 (¶21) (internal quotation mark omitted); see also Smith, 97 So. 3d at 48 (¶16) (explaining that desertion occurs when one forsakes “a person, institution, cause, etc., having a moral or legal claim upon one” or “forsake[s] one’s duty, one’s post[,] or one’s party”).

¶8. In Smith, the Mississippi Supreme Court considered a chancellor’s award of primary physical custody of a minor boy to his maternal grandmother and step-grandfather. Smith, 97 So. 3d at 44 (¶1). The Smith court concluded the record supported the chancellor’s finding that the mother’s desertion of her son had overcome the natural-parent presumption. Id. at 49 (¶17). Following the son’s birth in June 2003, he and his mother lived with the maternal grandparents in Mississippi. Id. at 45 (¶3). Over the next three years, the mother attended college. Id. The mother “sometimes visited” her son on weekends during the first three years of his life, but her visits eventually grew more infrequent. Id. In April 2006, the mother got married and moved to Washington D.C. to live with her new husband. Id. About a month later, the son also moved to Washington D.C. to live with his mother and her new husband. Id. In June 2006, however, the mother and her new husband separated, and the son returned to Mississippi. Id. Over the next few months, the son spent time in both Washington D.C. and Mississippi until he permanently returned to Mississippi in November 2006. Id. In 2007, the mother “sporadically” visited her son in Mississippi, and in April or May 2007, she gave the grandparents medical guardianship over her son. Id. In 2008, the mother’s visits with her son continued to grow “more infrequent,” and in March 2009, she moved to Arizona with a man she later married. Id. In granting third-party custody to the grandparents, the chancellor in Smith stated that the mother “had ‘failed to exercise her parental rights and fulfill her parental responsibilities’ by her ‘long and continuous absences’ from . . . [her son]. Consequently, the Smiths [(the grandparents)] had raised . . . [the grandson] virtually his entire life . . . .” Id. at 46 (¶4).

¶9. Citing Smith, the chancellor in the present case found that Farrah’s actions also constituted desertion. Specifically, the chancellor here stated:

Farrah’s long and continuous absences, especially in the context of a baby as young as the one in the instant case, along with her [(Farrah’s)] failure to exercise her parental rights, failure to financially support and care for the child[,] and her failure to fulfill her parental responsibilities, caused the child’s grandparents [(the Owenses)] to step in as primary caretakers.

¶10. Upon review, however, we conclude that the record in the present case fails to support a finding of desertion by clear and convincing evidence. At the time the Owenses filed their February 9, 2017 emergency petition for guardianship, Tiffany was only four months old and
had only lived in the Owenses’ home for two months. In addition, evidence reflected that until the Owenses received temporary custody of Tiffany, Farrah had been constantly present in her daughter’s life and had consistently contributed to Tiffany’s care and well being.

¶11. When the chancellor held the two-day hearing in November 2017 on the Owenses’ guardianship petition, Tiffany was one year old. Farrah testified about how often she had visited her daughter since her parents had received custody of Tiffany eight months earlier. Farrah stated that her parents initially allowed her to move back to their house following the February 2017 court hearing until they kicked her out a few weeks later. After leaving her parents’ home, Farrah stated that she visited with Tiffany around twenty times before she again moved back into her parents’ home in August 2017. During the time she lived with her parents in August 2017, Farrah testified that she was able to see Tiffany on a daily basis and that she “took care of Tiffany the whole time . . . [she] was there . . . .” According to Farrah, she was the one who mostly “fed . . . [Tiffany], bathed her, put her to bed, [and] fixed her breakfast.”

¶12. Farrah stated that her parents once again kicked her out of their home in September 2017 after they learned she had hired an attorney to represent her in the guardianship proceedings. Farrah testified that she still tried to visit Tiffany but that her parents refused to let her visit their house during weekdays while her father was at work. As a result, Farrah stated that she only visited with Tiffany once in the month leading up to the November 2017 hearing. Farrah also stated that she constantly tried to call and text her parents to request phone visits with Tiffany and pictures and videos of Tiffany. Farrah claimed, however, that her parents usually failed to answer her phone calls and text messages.

¶13. Farrah also testified that in September 2017 she obtained a job at a produce and firewood business. Farrah stated that she worked at the business the first part of the day and then babysat her bosses’ four children in the afternoons. Farrah testified that she had secured housing for herself and Tiffany and that she had just finished decorating Tiffany’s bedroom. If granted custody of Tiffany, Farrah testified that her employers had agreed to allow her to take Tiffany to work with her.

¶14. Unlike in Smith, the present record fails to show that Farrah forsook her duty to Tiffany through “long and continuous absences,” a “failure to exercise her parental rights,” or a “failure to fulfill her parental responsibilities.” See Smith, 97 So. 3d at 48 (¶16). Evidence instead reflected that Farrah consistently was or attempted to be present over the first year of Tiffany’s life. The record also contained evidence that during the periods when Farrah lived under the same roof as Tiffany,she helped to care for Tiffany and to provide for Tiffany’s needs. And during the times when she did not live under the same roof as Tiffany, Farrah testified about her repeated attempts to visit with her daughter. In addition, by the time of the November hearing, Farrah had not only obtained a job to financially support herself and Tiffany but had also obtained housing and arranged childcare. Based on such evidence, we conclude the chancellor manifestly erred by finding that the Owenses rebutted the natural-parent presumption with clear and convincing proof of desertion.

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.

The Better Home Argument for Custody

June 5, 2018 § Leave a comment

In the recent case of In re Guardianship of C.B.F., decided May 8, 2018, the COA confronted the argument that the natural-parent presumption had been rebutted because the grandfather had proven that he could provide a better home for the child than could the mother. Judge Griffis addressed the issue for a unanimous court:

¶35. Although not specifically asserted, it appears Paul claims the chancellor erroneously concluded that he failed to rebut the natural-parent presumption by clear and convincing evidence. We disagree.

¶36. The natural-parent presumption “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.” Wilson v. Davis, 181 So. 3d 991, 995 (¶7) (Miss. 2016). Additionally, the 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.” Id. at 995-96 (¶8). “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.” Id. at 997 (¶8). “If the natural parent presumption is 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. at 995 (¶7).

¶37. Paul does not challenge the chancellor’s findings regarding each factor. Instead, Paul claims that “[r]igid adherence [to proving one of the four factors] placed [Carter] in a circumstance which is clearly not in his best interests.” See id. at (¶8) (noting “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”). However, as noted by the GAL, simply because Paul may offer a more suitable home for Carter is not enough to rebut the natural-parent presumption. Indeed, the chancellor found there was no evidence that “actual or probable, serious physical or psychological harm or detriment w[ould] occur if the custody of Carter [wa]s placed with Hollee.” [Emphasis mine]

Not a whole lot to chew on there, but I wanted to highlight the principle that even though most grandparents can provide a nicer home, more material pleasures, and a more comfortable life, that is not enough to overcome the natural parent presumption. There must be a showing by clear and convincing evidence of one or more of the four Wilson v. Davis factors, or that serious harm to the child will result from placement with the natural parent.

We are seeing more and more situations like the facts in this case in which the natural parents live with their parents, or leave a child with their parents intermittently, or abandon the child entirely. In most of these cases, the grandparents become de facto parents to the child, and they become quite attached to the youngster. It can become a real tug-of-war when the natural parent shows up and demands to have the child back.


The Natural Parent Presumption and the Third-Party Action

October 28, 2015 § Leave a comment

What is the burden of proof on a third-party who is seeking to remove custody from a natural parent? It’s an important question in these days when we are seeing increasing numbers of parents who are abdicating their roles to others, and parents who are unfit to have custody of their children.

Denise Irle and David Foster were not married, but they were parents of two children, Britney and Chase. David was the caretaker of the children, but he died. Patty and Lavirl Foster, David’s parents, petitioned the court for custody of the children. Denise and the Fosters entered into an agreed order under which Denise was to have custody of Britney and the Fosters would have custody of Chase.

Shortly after entry of the agreed order DHS removed Britney from Denise’s home, and the Fosters again filed to get custody of the child. Following a hearing, the chancellor ruled that the Fosters had overcome the natural-parent presumption, and Britney’s best interest would be in the care of the grandparents. Denise appealed, claiming that the chancellor erred by not finding a material change in circumstances. The COA affirmed, and the MSSC granted cert.

In an opinion rendered October 8, 2015, in Irle v. Foster, the court took the opportunity to clarify the law:

¶7. Whatever doubt there may be about the grandparents’ burden, it is universally understood and accepted that a natural parent seeking to modify custody must demonstrate some change in the circumstances that were presented to the chancellor that led to the previous decree, and must show that the changed circumstances are material.

¶8. But thirty-five years ago in Thomas v. Purvis, this Court stated that “[t]he principle that there must be a material change of circumstances which adversely affects a child’s welfare before a custody decree may be modified only applies between parents of the child.” For two reasons, we find this sweeping statement needs clarification and correction.

¶9. First, Thomas cited Rodgers v. Rodgers as authority for the broad proposition that a material change in circumstances must be demonstrated only in cases involving natural parents. But nothing this Court said in Rodgers supports this proposition. The chancellor in that case—after concluding that a material change in circumstances had occurred, but without considering the natural-parent presumption—modified an original divorce decree to transfer custody of a minor child from the child’s natural mother to the child’s paternal grandparents. The mother appealed, arguing that she enjoyed the natural-parent presumption, and that the grandparents had presented insufficient evidence to rebut that presumption.

¶10. This Court agreed with the mother, recognizing that a natural parent may not be deprived of custody in favor of a third party unless the third party rebuts the natural-parent presumption by clear and convincing evidence.10 The Rogers Court certainly did not intend to place a burden on a natural parent that it did not place on third parties, thereby making it more difficult for the natural parent to prevail in a custody battle. Stated another way, if a natural parent is required to demonstrate a material change in circumstances in order to win custody, then certainly a third party has at least that same burden.

¶11. Importantly, the Rodgers Court reversed solely because the grandparents failed to rebut the natural-parent presumption, and it never considered or discussed whether the grandparents did or did not have an additional burden to show a material change in circumstances.

¶12. Unfortunately, it is not uncommon for natural parents to engage in numerous custody battles. But rarely do third parties—such as grandparents—attempt more than once to take custody from natural parents. This led to the second error in the Thomas Court’s reasoning, which was that it had failed to consider that there would be rare cases—such as the one before us today—where the third parties seeking to take custody from natural parents already had been before the court in a previous custody battle. So, while the logic is obvious that the material-change-in-circumstances test does not apply to third parties appearing for the first time before the chancery court, the same cannot be said where, as here, grandparents previously have been before the court on the very issue of who should have custody. Stated another way, grandparents who already have been before the chancery court in an attempt to remove custody from a natural parent may not reappear before the same chancery court, seeking a change in custody based on the same evidence and circumstances as existed when they first appeared.

¶13. So we hold that in cases involving a third party and a natural parent—where the third party has been before the court in a previous custody dispute over the child—the material change-in-circumstances test applies. A third party attempting to take custody from a natural parent under those circumstances is required to overcome the natural-parent presumption and to show a material change in circumstances from the previous decree.

¶14. Said differently, to obtain custody, the Fosters had to prove: (1) that a material change in circumstances had occurred since they last appeared before the chancellor; (2) that the natural-parent presumption had been rebutted; and (3) that the best interests of the child would be served by granting them custody. The chancellor applied this standard and credible evidence supported his judgment.

[All of the case citations are in footnotes which are omitted here because they are too tedious to copy and paste separately into this text]

So the rule now is that third parties who have previously attempted to obtain custody by court order must prove what is set out in ¶14 in order to modify custody in a later attempt. The upshot of the rule is that it prevents third parties from relitigating facts that have already been presented.

A Remand Without a New Trial

December 15, 2014 § Leave a comment

I posted here a few months ago that on remand the parties are restored to the position that they occupied before entry of the reversed judgment. A new trial is the norm, and even amended pleadings that change the scope of the proceedings from the original action are allowed.

That post also pointed out that, by agreement of the parties, the court may render a judgment on remand using the original record. The latest example of that is the case of Wilson v. Davis, a COA decision, handed down November 18, 2014.

In this case, the mother of a minor child had died, and the maternal grandmother refused to surrender the child to the father. The father brought an action for custody, which the chancellor treated as a modification, and not as an original action. The chancellor found for the grandmother, and the father appealed. The COA reversed and remanded, concluding that it was error for the trial court to try the case by the standards of a modification rather than as an original action.

The second time around, the chancellor used the record from the original trial to render a decision applying the proper standard for adjudication of custody. That’s what Judge Roberts tells us in his dissent:

¶30. Upon remand, the chancery court did not hold a new hearing or take new evidence in the matter. It modified its original opinion and found that the natural-parent presumption had been overcome because [the father] had abandoned [the child] and he had engaged in immoral conduct; it then applied an Albright analysis; and it found that [the maternal grandmother] should retain custody of [the child] because it was in [the child’s] best interest.

Nobody raised the issue whether this procedure was proper in arriving at the trial court’s adjudication. Neither the majority nor the dissent raised the question on its own. It does not appear from the opinion that either party asserted the issue in a R59 motion for a new trial, which would have been the most efficacious way to assert it, in my opinion.

How to proceed on remand is something to which you should devote some thought before you have to deal with it. The outcome for the father in this case might have been dramatically different if he had used his knowledge of what the chancellor viewed as the weak points in his case, and reshaped his witness list and evidence to present a case that overcame them. Instead, he allowed the chancellor to adjudicate the case on the record that she had already used to find against him.

Recovering Lost Custody

July 16, 2013 § 4 Comments

We talked last week about the natural parent presumption for custody, and how it may be lost.

Once a parent has lost custody on a finding of unfitness, and he or she later reforms the unfit conduct, what is the standard of proof required to recover custody?

In the case of Barnett v. Oathout, 833 So.2d 563 (Miss. 2004), DHS had removed the minor children from the parents’ home and placed the children in a foster home for more than two years. After the Youth Court had awarded the foster parents durable legal custody and they denied the natural father visitation, he petitioned for modification of visitation. The MSSC stated the rule to be followed by the modification court, as follows:

“The chancellor had to make two determinations: first, whether [petitioner] showed that there was a substantial change of circumstances which adversely affected the children, where it would be in the best interest of the children that custody be changed; and second, whether [the petitioner] showed that he had eliminated the behavior that caused the children to be taken in the first place.” Id., at 568 (¶ 10).

The court went on to find that the rule in Grant v. Martin, 757 So.2d 264 (Miss. 2000), that a parent who agrees to third-party custody forfeits the natural-parent presumption does not apply in cases in which a child is placed with DHS.

That would appear to mean that, although the natural parent in a DHS case does not lose the natural-parent presumption, the standard of proof to modify will be material change-best interest-reformed conduct.

But in 2010, the MSSC extended the Barnett rule to non-DHS cases in the case of Adams v. Johnson, 33 So.3d 551 (Miss. App. 2010), where the court held that when a third party has gotten cusstody of a child due to the unfitness of the parent(s), modification will require proof that there has been a “material change in circumstances in the [grandparents’] home that adversely affected the children.” Id., at 555-56 (¶ 10). No mention of reformed conduct.

As the dust settles, it looks like whether the natural parent voluntarily gives up the child, or has the child taken away, a later attempt to modify custody will require the standard material change-adverse effect-best interest standard, without regard to any natural parent presumption.

[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]


Just How Unfit Does a Parent Have to Be to Lose the Natural Parent Presumption?

July 11, 2013 § Leave a comment

We’ve talked here before about the natural parent presumption, and how it can be rebutted, or lost, by the natural parent’s own unsuitable conduct. The presumption is rebutted by a “clear showing” of (a) abandonment, or (b) immoral conduct by the parent that is detrimental to the child, or (c) mental or other unfitness.

Here is a collection of cases where the appellate courts have found that parental conduct rebutted the presumption:

  • White v. Thompson, 569 So.2d 1181 (Miss. 1990). Children not adequately supervised, not adequately clothed or fed, with a resulting deleterious effect on their health, mother living in intimate relationship with another woman.
  • E.J.M. v. A.J.M., 846 So.2d 289 (Miss. App. 2003). Mother had a significant history of mental illness, and in a recent bout of depression could not recall where the child was, and the child had been abused while in her care.
  • In re Custody of M.A.G., 859 So.2d 1001 (Miss. 2003). Drug and alcohol abuse. The 6-year-old child believed his father had killed his mother and brother with a baseball bat, based on a horror movie that the father had rented and watched with the child. Father: charged with drunken driving with child in the car; exposed child to sexual situations involving married women; threatened and abused child’s mother; and never reported his live-in girlfriend and her 5-month-old child missing after they were killed.
  • Loomis v. Bugg, 872 So.2d 694 (Miss. App. 2004). Use of illegal narcotics for an extended period of time. Mother left the child with relatives for more than half the time after death of the natural father.
  • Westbrook v. Oglesbee, 606 So.2d 1142 (Miss. 1992). Mother lived with several different men without benefit of marriage while she had the child, was arrested numerous times on drug-related charges, used illegal drugs and had paraphernalia in her apartment that was used to produce crack cocaine.

So what happens when the judge finds that the parent is presently unfit? Does that trigger an Albright analysis to gauge the comparative merits of the petitioning non-parents vs the parents? Not necessarily. In Lucas v. Hendrix, 92 So.3d 699 (Miss. App. 2012), the COA concluded that, upon a finding of parental unfitness, no further inquiry is necessary, the implication being that a parent who is presently unfit can not be awarded custody.

[This information is based on a presentation by attorney David Bridges to the Conference of Chancery Judges in April, 2013]

Beware this Custody Minefield

July 10, 2013 § 1 Comment

It’s not uncommon nowadays for grandparents to step into the parental role when the natural parents are too immature, or too drug-influenced, or in jail, or otherwise not able to care for their children.

The parties find their way into your office, and they need help. They want you to draw up some papers “to make it legal,” and to enable the grands to get the children into school and access to medical care.

Of course, your first ethical challenge is to determine who will be your client. Grandparents or natural parents? It makes a significant difference, because there are some serious issues facing the natural parents in this situation, and they need to go into the situation with their eyes wide open.


  • In Grant v. Martin, 757 So.2d 264 (Miss. 2004), the natural parents voluntarily gave the father’s parents guardianship over their children. The natural parents later divorced, and the mother remarried and stabilized her situation. When the grandparents refused to return the children to her, she filed a petition to modify custody. The chancellor denied it, finding that there had been no material change adversely affecting the children. On appeal, the MSSC stated ” … we adopt a new standard and hold that a natural parent who voluntarily relinquishes custody of a minor child, through a court of competent jurisdiction, has forfeited the right to rely on the existing natural parent presumption …” and that the “… natural parent may reclaim custody of the child only upon showing by clear and convincing evidence that the change in custody is in the best interest of the child” and that the new standard gives chancellors “… the authority to make a ‘best interest’ decision in voluntary relinquishment cases without being fettered by the presumption in favor of natural parents which applies in other custody cases.” Id., at 266.
  • In Callahan v. Davis, 869 So.2d 434 (Miss. App. 2004), the natural parents agreed in the course of a divorce proceeding that the paternal grandparents would have sole physical custody of the child, with what they considered was protective language in the agreement to the effect that either parent could later petition the court based on material change in circumstances, ” … to apply for custody of the child, jointly or solely, upon a showing that it would be in the best interest of the child to be with that party.” The mother later petitioned to change custody, which the chancellor denied based on a finding that the proof was not clear and convincing, as was required in Grant. The COA affirmed.
  • In Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), the court refused to extend the Grant rule to a temporary order. But beware the principle that a temporary order can morph into a permanent one with the passage of time. Quadrini v. Quadrini, 964 So.2d 576 (¶17) (Miss. App. 2007). In Hill v. Mitchell, 818 So.2d 1221 (Miss. App. 2002), the grandparents acquired a “temporary emergency order” for custody of a child “pending a final hearing.” No final hearing was ever held, and after eleven years the mother filed a petition to modify custody. The chancellor denied modification and held that the mother had abandoned the child. The COA affirmed and said that the passage of time amounted to the mother’s acceptance of the custody arrangement.
  • In D.M. v. D.R. 62 So.3d 920 (Miss. 2011), the court held that a mother’s signature on a consent to adoption was tantamount to abandonment, and rejected the mother’s argument that she should regain the natural parent presumption when both of the adoptive parents (grandparents of the child) died less than 10 months after the adoption was finalized. The court applied the Grant rationale in the case.

Note that the common thread in all of the above cases is that the parent or parents voluntarily relinquished custody. The Grant rule does not apply in cases in which the child is placed with DHS. Barnett v. Oathout, 883 So.2d 563 (Miss. 2004).

Before you counsel a natural parent to forfeit the advantage of the natural parent presumption, you would be wise to get an acknowledgment that the parent knows and understands exactly what is being lost.

[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]

Primer on The Natural Parent Presumption

July 9, 2013 § Leave a comment

This is the first of several posts in which we are going to examine how the natural parent presumption may be lost, and how the appellate courts have construed and applied the principles of loss of the presumption.

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. K.D.F. v. J.L.H., 933 So.2d 971, 980 (Miss. 2006).

This presumption is found in Mississippi Code Section 93-13-1 (Rev. 2004):

“The father and the 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.”

The presumption is rebuttable, upon a clear showing that:

  1. The parent has abandoned the child;
  2. The conduct of the parent is so immoral as to be detrimental to the child; or
  3. The parent is unfit mentally or otherwise to have custody.

Absent clear proof of one of the above circumstances, the natural parent is entitled to custody of his or her child. Rutland v. Pridgen, 493 So.2d 952, 954 (Miss. 1986); McKee v. Flynt, 630 So.2d 44, 47 (Miss. 1993). However, “if the court finds that one of these factors has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interest of the child through an on-the-record analysis of the Albright factors. In re Dissolution of the Marriage of Leverock and Hamby, 23 So.2d 424, 431 (¶ 24) (Miss. 2009).

Most recently, the chancellor in In re Custody of Brown, 66 So.2d 726 (Miss. App. 2011) ignored the natural parent presumption and awarded custody to the grandmother based on an Albright analysis. The father appealed. The court reversed and remanded the case for a determination of whether the child’s father had abandoned the natural parent presumption through desertion or other conduct that made him unfit.

In Smith v. Smith, the Court held that “the natural parent presumption can be rebutted by a clear showing that (1) the natural 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 v. Smith, 97 So. 3d 43 (¶ 10) (Miss. 2012).

[Taken from a presentation made by attorney David Bridges to the Conference of Chancery Judges in April, 2013]


May 15, 2013 § Leave a comment

Concetter Davis gave birth to a daughter, Sha’Nyla, and in 2008, James Wilson was adjudicated to be the father. Concetter was awarded custody, and James was granted visitation.

When Concetter died in July, 2011, James filed a pleading seeking to “modify” custody, based on the mother’s death. Concetter’s mother, however, resisted, filing pleadings with the court seeking to intervene and be appointed guardian of the child.

The trial proceeded as a modification, not as an original custody determination. The chancellor found that Concetter’s death was a material change in circumstances, and then found, based on an Albright analysis, that it was in the child’s best interest to remain with the grandmother. James appealed. 

The COA, in Wilson v. Davis, handed down April 30, 2013, reversed. The court first pointed out that this was not a modification case, since the original custody determination was between the two natural parents, one of whom was dead. Instead, this was an initial child-custody determination between a natural parent and a third-party. The court said, beginning at ¶ 8:

… [I]n 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. Lucas v. Hendrix, 92 So. 3d 699, 705-06 (¶17) (Miss. Ct. App. 2012) (citing McKee v. Flynt, 630 So. 2d 44, 47 (Miss. 1993)). This is because “[g]randparents have no legal right [to] custody of a grandchild, as against a natural parent.” Lorenz v. Strait, 987 So. 2d 427, 434 (¶41) (Miss. 2008).

¶9. The natural-parent presumption is rebuttable—but only “by a clear showing 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 43, 46 (¶9) (Miss. 2012) (citations omitted). Only after the presumption is rebutted is the grandparent on equal footing with the parent, permitting the chancellor to apply Albright to determine whether it is in the best interest of the child for the grandparent, versus the parent, to have custody. In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 431 (¶24) (Miss. 2009) (citations omitted).

Only after the presumption is rebutted by showing one of the four bases can the court place a third party on an equal ground with the parent and apply the Albright factors.

To hammer home the point, Judge Carlton added a specially concurring opinion including the thought that, “We must be mindful of the constitutional protection of parental rights against deprivation by third parties.”

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