Friday, December 12, 2014

Defrauded Father

The Mississippi Supreme Court yesterday had a really confusing custody case.  From my reading of it, the in loco parentis got reformed a good bit with the opinion.  The case was In the Interest of a Minor: Victoria Denise Waites .  The issue is  whether father who raised child can be ousted from custody determination once DNA proves the child is not his.  The answer unfortunately appears to be yes although he may still get visitation.  Amy and Scott had two children. Two years after their divorce, Amy moved to have their joint custody agreement modified because she was planning to remarry and live in Iowa.  After filing the petition,  Amy contacted T.J. Sanford (“T.J.”) to let him know she believed him to be her eldest child’s biological father.  A DNA test proved T.J.’s paternity and he sought  custody. The trial court excluded Scott from the custody determination, applied Albright to Amy and TJ and awarded full physical and legal custody to Amy rather than T.J.  Scott appealed.  The Court of Appeals found that Scott’s fatherly actions  rebutted  the natural-parent presumption afforded to Amy and T.J. and held that  Scott should have been considered on equal footing with the natural parents.  The Miss.S.Ct. reverses noting that:
"This Court has stated that the grounds for rebutting the natural-parent presumption involve negative actions/dispositions of the natural parents in relation to the child (i.e., abandonment, desertion, immoral conduct detrimental to the child, unfitness). And the chancery court’s finding, which was not challenged on appeal by Scott or in the Court of Appeals decision, was that Amy and T.J. had not conducted themselves in such a manner as to rebut the natural-parent presumption. Yet, the Court of Appeals determined that Scott’s positive, “supportive[,]” “fatherly actions” operated to rebut the natural-parent presumption and placed him on “equal footing” with Amy and T.J. for purposes of an Albright analysis. J.S.W., 2013 WL 6231797, at **1, 3. This Court does not find that the Court of Appeals’ position is congruent with the present state of the law."
To me the troubling part of the opinion is that if you have no grounds for custody as a third party, how can you have a right to visitation which the Supreme Court affirmed?  Best I can tell the loco parentis doctrine acts as an equitable remedy to provide for visitation.   

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