Third Party Custody

How can a person, who is not a natural parent, obtain custody of a child?  A natural parent has a presumption under the law that the best interest of the child is for the child to be in the custody of a natural parent over all other persons.  In order for a third person to obtain custody, this presumption must be rebutted by clear and convincing evidence.

The rule for rebutting the presumption is defined by Davis v. Vaughn, 126 So.3d 33, 37 (Miss. 2013). “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)).

This simply means that a natural parent can lose custody if that parent has abandoned the child, deserted the child or is otherwise unfit.  Often you see grandparents who have been acting as parents of the child and who stand “in loco parentis” to the child.

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.

In Wilson v. Davis, 181 So.3d 991 (Miss Ct. App. 2016), the Court held that grandparents possess “no legal right to custody of a grandchild, as against a natural *1284 parent.” Lorenz v. Strait, 987 So.2d 427, 434 (¶ 41) (Miss.2008); see also Troxel, 530 U.S. at 66, 120 S.Ct. 2054. We must be mindful of the constitutional protection of parental rights against deprivation by third parties. To rebut the natural-parent presumption, there must be clear evidence showing circumstances threatening the child’s welfare, such as unfitness, abandonment, or desertion necessitating such intervention. Miss.Code Ann. § 43–21–103 (Supp.2012).

So, what exactly does abandonment, desertion or unfitness mean?

That “[i]n order to overcome this presumption, there must be a clear showing that the parent is unfit by reason of immoral conduct, abandonment, or other circumstances which clearly indicate that the best interest of the child will be served in the custody of another.Moody, 211 So.2d at 844 (emphasis added). With this decision, we mark a return to that principle. The natural parent 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 *996 such probable harm.2 In other words, if demonstrable, clear and convincing evidence exists that the child will suffer probable harm and detriment in the custody of the natural parent, the court may find that the natural parent presumption is rebutted, *997 and consequently proceed to a determination of whether a custody award to the challenging party will be in the child’s best interests. 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. See Moody, 211 So.2d at 844 (“The fact that someone else may be in a better position to furnish the child a larger and more convenient home in which to live does not necessarily mean it would be in the best interest of the child to take it from a parent who is otherwise fit to have the custody of the child.”). This “exceptional circumstances” finding means more than that a child’s bests interests may be served by third party custody; it “requires proof of serious physical or psychological harm or a substantial likelihood of such harm.” Watkins v. Nelson, 163 N.J. 235, 748 A.2d 558, 565 (2000). More than simply best interests is required, because if that “is the only criterion, then a judge may take children from their parents because the judge personally disproves of the parents’ limited means.” Id. at 567 (internal quotations and alterations omitted). By requiring a much higher threshold than simply best interests, the exceptional circumstances finding “is designed to reduce or minimize judicial opportunity to engage in social engineering in custody cases involving third parties.” Id. It is important not to devolve into a less stringent standard because such would easily “evolve into a ‘fitness contest’ whose outcome will depend on the whims of the trial court.” Id. at 568. “The standard that we adopt has as its benchmark the welfare of the child while at the same time protecting parental rights.” Id.