natural-parent presumption in Mississippi

2025At that point, Erin testified that she agreed to go to therapy with Lisa because she wanted to help Lisa come to terms with the fact that she and L.J. were leaving. 31 identified what proof must be produced to rebut the natural parent presumption: The natural-parent presumption can be rebutted 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.[21] Id. at 1193 (¶19) (quoting Smith, 97 So. 3d at 46 (¶8)).

2025The court then addressed the burden that must be carried by a person who claims rights as one standing in loco parentis in order to overcome the natural parent presumption: 33 This Court has recognized third party visitation for those standing in loco parentis “in very limited, unique situations[.]” Wells v. Smith (In re Smith), 97 So. 3d 43, 47 (Miss. 2012).

2024However, the natural parent presumption can be rebutted by clear and convincing evidence that “the parent is unfit, mentally or otherwise, to have custody.” Id. (internal quotation marks omitted) (quoting Davis v. Vaughn, 126 So. 3d 33, 37 (Miss. 2013)).

2021The natural-parent presumption, codified in the Mississippi Code Section 93-5-24(1)(e) (Rev. 2018), requires a finding that “the parents of the child have abandoned or deserted such child or that both such parents are mentally, morally or otherwise unfit to rear and train the child” before custody can be awarded to a third party. “[G]randparents 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 th

2019However, 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.” Id. (internal quotation marks omitted) (quoting 6 Smith v. Smith, 97 So. 3d 43, 46 (Miss. 2012)).

2019While Candice contends that the chancellor exceeded the scope of the instructions on remand, she argues that Marshall’s having acted in loco parentis for Jill was not enough to overcome the natural-parent presumption with regard to Candice’s custody of Jill.3 Candice correctly states that “[t]he law recognizes that parents are the natural guardians of their children, and ‘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.’” Davis v. Vaughn, 126 So. 3d 33, 37 (Miss. 2013) 3 Candice takes issue with the court’s granting custod

2018However, in Grant v. Martin , 757 So.2d 264 , 266 (¶ 9) (Miss. 2000), the Mississippi Supreme Court established an exception or a new standard for such instances where the natural parent consents to and joins in court proceedings granting custody to a third party. ¶ 22.

2016The only question for this Court, to decide — with respect to Brittany — is whether there was dear and convincing evidence that the chancellor’s award of custody to Brittany was in Hayden’s best interests. ¶ 45. “[A] natural parent who voluntarily relinquishes custody of a minor child, through a court of competent jurisdiction, .... 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.” Grant v. Martin, 757 So.2d 264, 266 (¶ 10) (Miss.2000).

2025As in Davis, 126 So. 3d at 38-39 (¶15), the Waites court affirmed the chancellor’s award of in loco parentis visitation rights to the mother’s ex- husband, Waites, 152 So. 3d at 314 (¶21),10 despite recognizing that the mother’s ex- 9 As Presiding Justice Kitchens succinctly stated in his separate opinion, “[t]he Davis case demonstrates that an in loco parentis third party is not required to rebut the natural parent presumption in order to be granted visitation rights.” Brownlee, 368 So. 3d at 1277 (¶36) (Kitchens, P.J., concurring). 10 We recognize that there was a split in our decisions rega

2021In a case of child custody, parents are awarded “a natural-parent presumption favoring an award of custody.” Ballard v. Ballard, 255 So. 3d 126, 132 (Miss. 2017) (citing Waites v. Ritchie (In re Waites), 152 So. 3d 306, 311 (Miss. 2014)).

2019Moreover, as discussed in Welton, in J.P.M., this Court “affirmed an order granting custody to a husband who had learned during divorce proceedings that he was not the biological father of a child born to the marriage” because “[h]e was deemed the ‘father in fact’ and was not required to present additional evidence to rebut the natural parent presumption.” Id. (citing J.P.M. v. T.D.M., 932 So. 2d 760, 762-70 (Miss. 2006)). ¶17.

2015However, citing Pell, 881 So.2d 184 , and J.P.M., 932 So.2d 760 , the majority finds that the “unique facts” of this case are sufficient to rebut the natural-parent presumption, referencing the child’s belief that Daniel was her father and emphasizing the biological father’s absence. 11 I find those cases are clearly distinguishable from the present circumstances.

2019Moreover, as discussed in Welton, in J.P.M., this Court “affirmed an order granting custody to a husband who had learned during divorce proceedings that he was not the biological father of a child born to the marriage” because “[h]e was deemed the ‘father in fact’ and was not required to present additional evidence to rebut the natural parent presumption.” Id. (citing J.P.M. v. T.D.M., 932 So. 2d 760, 762-70 (Miss. 2006)). ¶17.

2015However, citing Pell, 881 So.2d 184 , and J.P.M., 932 So.2d 760 , the majority finds that the “unique facts” of this case are sufficient to rebut the natural-parent presumption, referencing the child’s belief that Daniel was her father and emphasizing the biological father’s absence. 11 I find those cases are clearly distinguishable from the present circumstances.

2018Under the natural-parent 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." Id.

2013The natural-parent presumption is “not unassailable.” In re Custody of Brown, 66 So.3d 726, 728 (¶ 10) (Miss.Ct.App.2011) (citing Vaughn v. Davis, 36 So.3d 1261, 1264 (¶ 10) (Miss.2010)).

2016“To be awarded custody, therefore, the third party must first clearly rebut the natural-parent presumption or preference; if it is successfully rebutted, the chancellor must then examine the Albright factors and determine that third-party custody serves the best interest of the child.” Id. (citing Logan v. Logan, 730 So.2d 1124, 1127 (Miss.1998)).

2016“The natural-parent presumption can be rebutted 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, *1197 to have custody.” Id. (citing Carter, 611 So.2d at 876 ). ¶ 27.

2024This Court has made clear in Wilson v. Davis, 181 So. 3d 991, 997 (Miss. 2016), a natural-parent-presumption case between a grandmother and a father, that a “finding must prevent probable harm to the child, and not simply . . . . that the third party can provide the child with different or arguably ‘better’ things.” “[I]f demonstrable, clear and convincing evidence exists that the child will suffer probable harm and detriment in the custody of the 12 natural parent, the court may find that the natural parent presumption is rebutted[.]” Id. at 996 . ¶35.

2024This Court has made clear in Wilson v. Davis, 181 So. 3d 991, 997 (Miss. 2016), a natural-parent-presumption case between a grandmother and a father, that a “finding must prevent probable harm to the child, and not simply . . . . that the third party can provide the child with different or arguably ‘better’ things.” “[I]f demonstrable, clear and convincing evidence exists that the child will suffer probable harm and detriment in the custody of the 12 natural parent, the court may find that the natural parent presumption is rebutted[.]” Id. at 996 . ¶35.

2019Following his determination that April had relinquished her right to the natural-parent presumption, the chancellor considered “whether an award of custody to [David] w[ould] serve the child’s best interests.” See Davis, 126 So. 3d at 37 (“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.” (citing Smith, 97 So. 3d at 46 )); see also Leverock, 23 So. 3d at 431 (“If the court finds one of these factors 16 has been proven, then the presumption vanishes, and

2015See Waites, 152 So.3d at 311 (¶ 14); Davis, 126 So.3d at 37 (¶¶ 10-12); Smith, 97 So.3d at 49 (¶ 17) (holding that “an Al-bright analysis was justified” because “the natural-parent presumption ... was properly rebutted”); M.A.G., 859 So.2d at 1004 (¶ 6) (“As far back as 1929, this Court has held that when one parent dies, the other parent has a right to the child’s custody until there has been abandonment or' the living parent has forfeited' that right by immoral conduct.”) (citing Stegall v. Ste-gall, 151 Miss. 875 , 119 So. 802, 803 (1929)); Miss.Code Ann. § 93-13-1 (Rev. 2013) (“The father

2015To support his ruling, the chancellor primarily relied on In re V.D.W., 152 So.3d 336, 341-42 (¶¶ 28-30) (Miss.Ct.App.2013), a case in which this Court reversed the chancery court’s award of custody to the natural mother and held that, because the stepfather had taken care of the child and treated her as his own, and" “share[d] equal custody time and expenses” with the natural mother, he “had overcome the natural-parent presumption.” However, when the chancellor made his custody determination in this case, V.D.W. was pending before the supreme court on a petition for certiorari.

2014By the Court of Appeals’ estimation, Scott “overc[a]me the natural-parent presumption,” and “should have been considered on equal footing with Amy and T.J. in the chancellor’s Albright analysis.” Id. at 342, 2013 WL 6231797, at *6 . ¶ 12.

2012The Mississippi Supreme Court has defined “desertion” as forsaking a person to whom one is legally obligated or forsaking “one’s duty.” Leverock, 23 So.3d at 430 n. 2 (quoting Ainsworth v. Natural Father, 414 So.2d 417, 420 (Miss.1982)).

2011This Court has defined abandonment as "any conduct on the part of the parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child." Ainsworth v. Natural Father, 414 So.2d 417, 419 (Miss.1982).

2009This Court has long held that the natural-parent presumption means that the parents "have a natural right to the nurture, care and custody of their children." Simpson v. Rast, 258 So.2d 233, 236 (Miss.1972). .

2009Id. [4] This Court has long held that the natural-parent presumption means that the parents "have a natural right to the nurture, care and custody of their children." Simpson v. Rast, 258 So.2d 233, 236 (Miss.1972). [5] The Albright factors, used to determine child custody based on the best interests of the child, include: 1) age, health and sex of the child; 2) determination of the parent who had the continuity of care prior to the separation; 3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; 4) the employment of the parent and re

2016Judge Roberts last concluded that he could not “reconcile the 1 Albright v. Albright, 437 So. 2d 1003 (Miss. 1983). 4 chancery court’s finding that James was so immoral and unfit to parent Sha that the natural- parent presumption was overcome, while at the same time awarding him joint legal custody and liberal visitation.” Judge Roberts believed the case should be reversed and judgment rendered granting James custody, while remanding the matter to consider grandparent visitation. ¶5.

2009Id. [4] This Court has long held that the natural-parent presumption means that the parents "have a natural right to the nurture, care and custody of their children." Simpson v. Rast, 258 So.2d 233, 236 (Miss.1972). [5] The Albright factors, used to determine child custody based on the best interests of the child, include: 1) age, health and sex of the child; 2) determination of the parent who had the continuity of care prior to the separation; 3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; 4) the employment of the parent and re

2015Thus, 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.” Id. at (¶ 12).

2014Recently, in Davis v. Vaughn, 126 So.3d 33 (Miss.2013), which involved a custody dispute between a natural father and maternal grandmother, this Court affirmed that a third party’s in loco parentis status, standing alone, could not rebut the natural-parent presumption. 7 According to this Court, “[i ]n loco paren-tis status carries with it the same duties and liabilities that belong to a natural parent, including a right to custody of the child ‘as against third persons' ” Davis, 126 So.3d at 37 (quoting Farve v. Medders, 241 Miss. 75 , 128 So.2d 877, 879 (1961)) (emphasis in original).

2019A “bedrock principle of Mississippi family law” is the natural parent presumption, which gives preference to a child’s natural parents, “even against those who have stood in their place, honor[ing] and protect[ing] the fundamental right of natural parents to rear their children.” Neely v. Welch, 194 So. 3d 149, 155 (¶19) (Miss.

2017"In short, to overcome the natural parent presumption, there must be clear and convincing evidence of conduct or unfitness 'presenting a genuine serious danger to the child.' " Neely v. Welch , 194 So.3d 149 , 158 (¶ 25) (Miss.

2025Ct. App. 2009); see also Scruggs v. Saterfiel, 693 So. 2d 924, 926 (Miss. 1997) (concluding that it is up to the Legislature “to expand [visitation] rights . . . to siblings or other third parties as it sees fit”).

2015Just as with the issue of custody, unless there is clear and convincing evidence to rebut the natural parent presumption, a stepfather “has no right to visitation with his stepchildren under the laws of the State of Mississippi.” Pruitt v. Payne, 14 So.3d 806, 811 (¶ 11) (Miss.Ct.App.2009); see also Scruggs v. Saterfiel, 693 So.2d 924, 926 (Miss.1997) (concluding that it is up to the Legislature “to expand [visitation] rights ... to siblings or other third parties as it sees fit”).

2025Ct. App. 2015):18 Just as with the issue of custody, unless there is clear and convincing evidence to rebut the natural parent presumption, a stepfather “has no right to visitation with his stepchildren under the laws of the State of Mississippi.” Pruitt v. Payne, 14 So. 3d 806, 811 (¶ 11) (Miss.

2015Just as with the issue of custody, unless there is clear and convincing evidence to rebut the natural parent presumption, a stepfather “has no right to visitation with his stepchildren under the laws of the State of Mississippi.” Pruitt v. Payne, 14 So.3d 806, 811 (¶ 11) (Miss.Ct.App.2009); see also Scruggs v. Saterfiel, 693 So.2d 924, 926 (Miss.1997) (concluding that it is up to the Legislature “to expand [visitation] rights ... to siblings or other third parties as it sees fit”).

2024Ballard, 289 So. 3d at 729-31 (¶¶12-23); In re Smith, 97 So. 3d at 47 (¶11); J.P.M. v. T.D.M., 932 So. 2d 760, 769-70 (¶¶24-26) (Miss. 2006); Griffith v. Pell, 881 So. 2d 184, 186-87 (¶¶6-11) (Miss. 2004); Welton, 180 So. 3d at 744-48 (¶¶21-31). ¶17.

2017The natural-parent presumption is a doctrine that “precludes a court from granting custody to a ‘third party’ over the objection of a natural parent absent clear and convincing evidence that the natural parent has abandoned or deserted the child, has engaged in immoral conduct harmful to the child, or is an unfit parent.” Welton v. Westmoreland, 180 So.3d 738, 744 (¶ 21) (Miss.

2024Regarding the home, school, and community record of the children, the chancellor noted that Dawn thought ordinary facts of life, that in the absence of some unusual and compelling circumstance dictating otherwise, it is not in the best interest of children to be separated.” Finally, in Carson v. Natchez Children’s Home, 580 So. 2d 1248, 1257 (Miss. 1991), the Court stated that “the imperative that siblings should not be required to live apart” is “[a]lmost as strong” as the natural-parent presumption. 10 Robbie was employed as a welder for Viking Range.

2016See, e.g., Carson v. Natchez Children’s Home, 580 So.2d 1248, 1257 (Miss.1991) ("Almost as strong [as the natural parent presumption] is the imperative that siblings should not be required to live apart.”); Sparkman v. Sparkman, 441 So.2d 1361, 1363 (Miss.1983) ("[A] common sense recognition of the ordinary facts of life [is] that in the absence of some unusual and compelling circumstance dictating otherwise, it is not in the best interest of [siblings] to be separated.”); Owens v. Owens, 950 So.2d 202, 207 (¶ 15) (Miss.Ct.App.2006) ("When other circumstances do not require the separation of c

2016“To be awarded custody, therefore, the third party must first clearly rebut the natural-parent presumption or preference; if it is successfully rebutted, the chancellor must then examine the Albright factors and determine that third-party custody serves the best interest of the child.” Id. (citing Logan v. Logan, 730 So.2d 1124, 1127 (Miss.1998)).

2016“The natural-parent presumption can be rebutted 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, *1197 to have custody.” Id. (citing Carter, 611 So.2d at 876 ). ¶ 27.

2016See Wilson v. Davis, 111 So.3d 1280, 1283 (¶ 11) (Miss.Ct.App.2013).

2016See Wilson v. Davis, 111 So. 3d 1280, 1283 (¶11) (Miss.

2013Id. at 705-06 (¶ 17) (citing McKee v. Flynt, 630 So.2d 44, 47 (Miss.1993)); see Lorenz v. Strait, 987 So.2d 427, 434 (¶ 41) (Miss.2008) (holding that, because “[grandparents have no legal right [to] custody of a grandchild, as against a natural parent,” the natural-parent presumption applies in custody cases between grandparents and natural parents). ¶ 19.

2012Id. at 705-06 (¶ 17) (citing McKee v. Flynt, 630 So.2d 44, 47 (Miss.1993)); see Lorenz v. Strait, 987 So.2d 427, 434 (¶ 41) (Miss.2008) (holding that, because “[gjrandparents have no legal right [to] custody of a grandchild, as against a natural parent,” the natural-parent presumption applies in custody cases between grandparents and natural parents). ¶ 14.

2013Id. at 705-06 (¶ 17) (citing McKee v. Flynt, 630 So.2d 44, 47 (Miss.1993)); see Lorenz v. Strait, 987 So.2d 427, 434 (¶ 41) (Miss.2008) (holding that, because “[grandparents have no legal right [to] custody of a grandchild, as against a natural parent,” the natural-parent presumption applies in custody cases between grandparents and natural parents). ¶ 19.

2012Id. at 705-06 (¶ 17) (citing McKee v. Flynt, 630 So.2d 44, 47 (Miss.1993)); see Lorenz v. Strait, 987 So.2d 427, 434 (¶ 41) (Miss.2008) (holding that, because “[gjrandparents have no legal right [to] custody of a grandchild, as against a natural parent,” the natural-parent presumption applies in custody cases between grandparents and natural parents). ¶ 14.

2013The natural-parent presumption is “not unassailable.” In re Custody of Brown, 66 So.3d 726, 728 (¶ 10) (Miss.Ct.App.2011) (citing Vaughn v. Davis, 36 So.3d 1261, 1264 (¶ 10) (Miss.2010)).

2013The natural-parent presumption is “not unassailable.” In re Custody of Brown, 66 So.3d 726, 728 (¶ 10) (Miss.Ct.App.2011) (citing Vaughn v. Davis, 36 So.3d 1261, 1264 (¶ 10) (Miss.2010)).

2025Miller, 229 So. 3d at 104-05 (¶18); Waites v. Ritchie (In re Waites), 152 So. 3d 306, 311-12 (¶15) (Miss. 2014); Davis v. Vaughn, 126 So. 3d 33, 34-35 (¶1) (Miss. 2013); Smith v. Smith, 97 So. 3d 43, 47 (¶11) (Miss. 2012).

2019Id. at 104-105 . ¶23.