Oral argument Wed., Oct. 15, 2014 – too many parents

The Mississippi Supreme Court heard a custody appeal on cert. from the Court of Appeals today.  I didn’t write about it previously because although the case was listed in the oral argument calendar, there were no documents on the docket because it had been sealed.  Apparently the sealing was a mistake and the briefs are now available.

In the Court of Appeals, the case is styled In the Interest of a Minor, JSW v. AWR.  Amy and Jeffrey were married for five years and had two children, one of whom, Vanessa,  was born 3  months after they were married. When  Vanessa was almost three years old, the couple received a phone message the mother of a man, Timothy,  with whom Amy had had a one night stand prior to her marriage.   The message said Timothy was about to deploy and Timothy  was wondering if Amy’s baby could be his.  Amy denied that Vanessa was Timothy’s child but Jeffrey had a paternity test anyway that showed he was not the child’s father.  “Despite knowing in March 2007 he was not Vanessa’s biological father, [Jeffrey and Amy]  decided [Jeffery]  would continue to raise Vanessa as his own daughter.” But they ended up divorcing two and a half years later at which time Timothy had a DNA test done and found out that he was Vanessa’s father.

The chancellor held that since  Timothy is the biological father of Vanessa, he was entitled to the natural-parent presumption. Custody, then would be a contest between Timothy and Amy. After applying the factors under Albright, the chancellor determined it was in Vanessa’s best interest that Amy be awarded custody and Timothy visitation. The chancellor also gave Jeffery visitation under the doctrine of in loco parentis.

The Court of Appeals reversed finding that Jeffrey should have been on an equal footing with Amy and Timothy.

Here, the chancellor expressly found [Jeffrey] stood in loco parentis. He also found Jeffery 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, [Jeffrey]  had been ordered to pay half of Vanessa’s day-care expenses, and the only reason he did not have to pay [Amy] 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).  Based on the chancellor’s own findings of fact, we find [Jeffrey]  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.
Because we find Jake had overcome the natural-parent presumption, he should have been considered on equal footing with [Amy and Timothy] in the chancellor’s Albright  analysis. We reverse the custody award and remand for the chancery court to conduct an Albright analysis that includes [Jeffrey]  as a potential custodial parent.

Amy and Timothy filed for cert. which was granted with oral argument today that  involved all of the Justices except J. Chandler. It sounds like an interesting argument.  I’ll try to remember to post it whenever it becomes available on the MC Law School site.

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