3 things you must know if you are considering getting custody of your grandkids (nieces, nephews, step-kids, etc.)
We have a saying in our local Chancery Courts that might as well be gospel.
Thank God for Grandparents.
Sometimes it’s because of drugs. Sometimes it’s because of alcohol. Sometimes it’s because of violence. Sometimes it’s plain ol’ immaturity and selfishness. Whatever the reason, all across the Mississippi Gulf Coast and the rest of the USA, grandparents, uncles, aunts, and step-parents have stepped up when the biological parents have stepped down.
Almost uniformly, the caregivers expect their role to be temporary. Maybe the parent enrolled in a treatment program. Maybe the parent swears up and down that he or she applied to a new job. In the meantime, you have grown to love those kids as if they were your own, and you know that they rely on you to provide a safe, consistent, and stable home for them.
What do you do when you have a child in your home and you no longer believe that the parent(s) is ever going to get their act together?
Worse, what are you going to do when the parent feels like they are ready to have their kid(s) back, but you know the parent is not ready. You certainly do not want to let these precious gifts from God return to an unsafe environment.
So long as you do not have a court order giving you custody or guardianship over the children, those kids are always at risk of being taken out of your home by their troubled mom or dad. No one but the parents have a right to those children without a court order. “The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates.” Miss Code Ann. §93-13-1. Unless a court has appointed you as the guardian/custodian of the children, the parents remain as such and can take their kids back at their discretion.
Of course, if you are in a situation in which you are having to protect children from the dangers posed by their biological mother and father, you simply cannot allow this to happen. You know that all of the parent’s wishes and promises mean nothing when it comes to raising children. Kids need consistency, stability, and love, which you have provided and will continue to provide.
Still, what can you do when the parent wants their kid back?
Often, if you are in a situation in which you are raising someone else’s children, you have a good shot at getting custody of those kids.
However, life and law are complicated. So here are three things you must know if you are considering getting custody of your grandkids, nieces, nephews, step-children, etc.
What is the natural parent presumption?
At its most basic, the natural parent presumption means that it is presumed by the court that it is in the best interest of children to be raised by their natural parents. This is significant as the “polestar consideration in child custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So.2d 1003 (Miss 1983). If the court’s polestar consideration is a child’s best interest, and it also presumes that the child’s best interest is to be with its parents, then presumptively the custody should be with the parents.
Of course, there is a sound reason for the natural parent presumption. In Mississippi, we believe the bond between parent and child situates the parent as the best person to raise his or her child, or, as the Mississippi Supreme Court eloquently stated in the landmark case, Hibbette v. Baines, “nature and the law ratifying nature assume that the author of their being feels for them a tenderness which will secure their happiness more certainly than any other tie on earth…. the presumption naturally and legally is that [the parent] will love them most, and care for them most wisely.” Hibbette v. Baines, 78 Miss. 695 (1900). The belief in the divine bond between parent and child justifies giving preference to natural parents, even against those who have stood in their place, and, in doing so, honors and protects the fundamental right of natural parents to rear their children. Davis v. Vaughn, 126 So.3d 33 (Miss. 2013).
At a fundamental level, this makes perfect sense. The parent and child relationship is special. We do expect parents through nature itself to go farther than anyone in protecting and providing for their children. I know I feel that way about my children. God forbid, if something happened and my parents had to take care of my kids for a few months, you better believe I would want them back as soon as I got back on my feet and would be doing everything in my power to see them and support them while I did so. Of course, I love and take care of my children. Other parents, for whatever reason, do not. They will refuse to support or visit their kids. They will choose drugs or alcohol over their kids. They will, from whatever mental or physical illness they may suffer, actually be unable to take care of their kids. So what happens then?
Can you overcome the natural parent presumption?
Of course. The natural parent presumption merely presumes that custody remaining with the parents is in the child’s best interest. That certainly does not mean that under the specific facts of the case it is in the child’s best interest for the child’s parents to have custody. In fact, if the parent fits in any of the divisions listed above (addiction, violence, complete abdication of parental responsibilities) it is likely that it is not in the child’s best interest to remain with his or her parents.
In fact, this is codified in our law.
In the same statute that declares that the natural parents are the joint natural guardians of their children, it goes on to state: “But if any father or mother be unsuitable to discharge the duties of guardianship, then the court, or chancellor in vacation, may appoint some suitable person, or having appointed the father or mother, may remove him or her if it appears that such person is unsuitable, and appoint a suitable person.” Miss Code Ann. §93-13-1.
The actual custody statute specifically sets forth the scenario in which a third-party should receive custody of the child(ren). Miss. Code Ann. § 93-5-24 (e) states that: “ Upon a finding by the court that both of 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 the court may award physical and legal custody to:
(i) The person in whose home the child has been living in a wholesome and stable environment; or
(ii) Physical and legal custody to any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
Of course, this is a good policy. While a parents’ right to raise their child is a sacred right, a sacred duty obviously accompanies it. If a parent fails to fulfill their duty to their children, the court must look out for the child’s best interest.
What do I have to prove to overcome the natural parent presumption?
So there are three ways to overcome the natural parent presumption. You must show by clear and convincing evidence that the parents (1) abandoned the child; (2) deserted the child; or (3) are mentally, morally or otherwise unfit to rear and train them.
Abandonment is defined “as importing 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.” Petit v. Holifield, 443 So.2d 874 (Miss. 1984); citing Ainsworth v. Natural Father, 414 So.2d 417 (Miss. 1982). So abandonment means action (or inaction) indicating that the parent has decided to give up his or her right to her children. For example, if a parent has not had contact with the child or provided any support or reached out whatsoever in over a year such conduct indicates that they have abdicated their role as a parent and may constitute abandonment.
Desertion is different than abandonment. Where abandonment deal with giving up a right, desertion involves the avoidance of one’s duty to his children. Petit v. Holifield, 443 So.2d 874 (Miss. 1984); citing Ainsworth v. Natural Father, 414 So.2d 417 (Miss. 1982). So the question is whether the parent has actively avoided their duties to their children as opposed to leaving his or her children. While a parent has a right to their child, parents also have a duty to take care of their children. As the court wrote in Hibbette, “the law at the birth of an infant imposes upon the parent the duty of such care and protection, to the performance of which the instincts of nature so readily prompt, and clothes him with the right of custody, and that he may perform it effectually, upon the presumption that such custody, being in harmony with nature, is best for the interest, not only of the parent and child, but also of society.” Where a parent has foresaken his or her duty by avoiding his or her responsibilities to his or her children, not supporting them, not taking care of them, not being their parent, leaving them in the care of others, such behavior constitutes desertion.
The final category under which a third-party may take custody of children over the objection of the natural parents is where the parent is morally, mentally or otherwise unfit to rear the children. For example, a parent who is a chronic drug user or alcoholic is likely to be both morally and mentally unfit to rear children (though occasionally drinking beers or having a past drug problem rather than a current drug problem likely will not count). Similarly, a parent who is excessively violent, perpetually homeless, or is a criminal may constitute unfitness. However, simply being unprepared for the rigors of parenthood does not fall under this rubric.
Finally, a practical point:
If you are raising someone else’s children, there is a reason you’re are doing so. One way or another, the parent is failing to uphold his or her responsibilities. However, context matters. If the parent is struggling, needs help, accepts help, and then proceeds to do better, a court is likely going to return their children. This is especially true if the parent continues to take an active role in the child’s life. If the parent visits often, pays support, even if it is just a pittance, and genuinely tries to maintain a relationship with the children, you will be hard-pressed to prove that the parent abandoned or deserted their children.
Unfortunately, that is not often the case. If you are legitimately worried about the child’s mental, emotional, and/or physical well-being in the parent’s household, there is a good chance the judge will feel the same way. At the very least, legal action can help push the parent to live up to their hollow promises. That being said, if you have been down this path with the parent(s) before, trust that it is a cycle and that you need to act sooner rather than later. It is easier to get custody before the parent temporarily gets back on their feet. If you are in a position where you are taking care of someone else’s children, contact an attorney immediately to discuss how you can ensure that those kids remain safe and happy.