Thursday, December 26, 2013

Mississippi Court of Appeals: De facto parent status can rebut the natural parent presumption for child custody

The Mississippi Court of Appeals recently decided In re V.D.W., 2012-CA-00884-COA, 2013 WL 6231797 (Miss. Ct. App. Dec. 3, 2013), holding that a de facto parent status can rebut the natural parent presumption for child custody in unique cases.  
 
Jake and Anne were married for five years and two children were born of their union.  Vanessa was born five months into their marriage.  Brett was born over a year and half later.  When Jake and Anne divorced, they had a custody arrangement with which neither was satisfied.  Anne filed a complaint for support and Jake countered for a change of custody.  Before a hearing could be held, Tommie filed a motion for custody, visitation and paternity for the oldest child Vanessa based on a one-night stand he had with Anne prior to her marriage to Jake.  
 
The trial court awarded custody of the minor child to Anne, granting visitation to both the natural father and presumed father, who had raised the child as his own. The court found that Tommie was entitled to the natural-parent presumption under Mississippi law which presumes that it is in the child's best interest to be placed with a natural parent vs. a third party, i.e., a grandparent. However, the court found that while Jake stood in loco parentis, based on his raising Vanessa as his own, it did not rebut the natural-parent presumption. 
 
The Court of Appeals found nothing wrong in the factual findings of the trial court, but found that the trial court used the wrong line of cases as precedent-- it used cases where the third party was a grandparent or other family member, requiring a stricter standard to rebut the presumption that placement with a natural parent (over a third party) is in the child's best interest.  However, there were cases in which the third party was a husband who acts under the assumption that he is the father of the child that his wife bore, and those cases used the doctrine of in loco parentis to put the presumed father on equal footing with the natural parent. These cases were distinguishable from the grandparent cases because a presumed father has existing legal rights and obligations that the third parties in those cases did not have. The Court of Appeals found that this case was in fact a presumed father as third party case, thus, it held that the presumed father's actions rebutted the natural-parent presumption of custody and reversed and remanded to consider the presumed father on equal footing with the natural parents to determine custody of Vanessa.
 
For the full text of the opinion, click here.
 
ABC 

http://lawprofessors.typepad.com/family_law/2013/12/mississippi-court-of-appeals-de-facto-parent-status-can-rebut-the-natural-parent-presumption-for-chi.html

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