Keely v. Keely , 495 So. 2d 452 ( 1986 )

495 So. 2d 452 (1986)

Calvin Lee KEELY
v.
Tamalia KEELY.

No. 56927.

Supreme Court of Mississippi.

September 17, 1986. Rehearing Denied October 29, 1986.

William B. Jacob, Meridian, for appellant.

Leon Mangum, Decatur, for appellee.

Before WALKER, C.J., and SULLIVAN and ANDERSON, JJ.

SULLIVAN, Justice, for the Court:

Tamalia Keely filed suit for divorce and custody of Stephen Adam Keely, the only child of her marriage to Calvin Lee Keely. Calvin Lee Keely filed an answer and cross-claim for divorce and custody of Stephen Adam Keely.

In the interim, a petition was brought in the Youth Court of Newton County, Mississippi, alleging that the minor child while in the custody of Tamalia Keely was a neglected child under the Youth Court Act. The Youth Court Referee found the child to be a neglected child and put him in the custody of Ed Buckley, the child's maternal grandfather, until further order of the Youth Court or of the Chancery Court of Newton County, Mississippi.

The Chancery Court of Newton County, Mississippi, entered a temporary custody order granting Ed Buckley, the maternal grandfather, custody of the child until further order of the youth court which would remain in full force and effect until the final hearing of the divorce in the Chancery Court of Newton County.

On September 26, 1985, when this divorce came on to be heard the chancellor refused to hear any testimony as to the custody of the child, allowed the child to remain in the custody of Ed Buckley, and granted the divorce on irreconcilable differences.

In Mississippi the general rule of law is that it is presumed that the best interest of a child will be served by that child being in the custody of his or her natural parent as against any third party. In order to overcome this presumption there must be a clear showing that the natural parent has (1) abandoned the child; (2) the conduct of the parent is so immoral as to be detrimental to the child; or (3) that the parent is unfit mentally or otherwise to have custody. Stoker v. Huggins, 471 So. 2d 1228 (Miss. 1985); Naveda v. Ahumada, 381 So. 2d 147 (Miss. 1980); Milam v. Milam, 376 So. 2d 1336 (Miss. 1979); Turner v. Turner, 331 So. 2d 903 (Miss. 1976).

The chancellor was without authority to substitute the judgment of the Newton County Youth Court Referee in a hearing alleging child neglect and in so doing deprived Calvin Lee Keely, the natural father of the child, of his right to be heard on the custody of his son.

This case is controlled by our decision in Rutland v. Pridgen, 493 So. 2d 952 (Miss. 1986).

The chancellor's award of custody to Ed Buckley, maternal grandfather of Stephen Adam Keely, is reversed and custody is awarded here to Calvin Lee Keely, natural father of Stephen Adam Keely, without prejudice to a third party in a proper jurisdiction seeking to overcome the presumption that the best interest of the child will be served by the child remaining in the custody of his natural parent.

REVERSED AND RENDERED.

WALKER, C.J., ROY NOBLE LEE and HAWKINS, P.J., and DAN M. LEE, PRATHER, ROBERTSON, ANDERSON and GRIFFIN, JJ., concur.