Jeffrey Scott Waites v. Amy M. Waites Ritchie

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2012-CT-00884-SCT
IN THE INTEREST OF A MINOR VICTORIA
DENISE WAITES: JEFFREY SCOTT WAITES
v.
AMY MARIE WAITES RITCHIE AND
TIMOTHY J. SANFORD
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 03/21/2012
TRIAL JUDGE: HON. JOHNNY LEE WILLIAMS
TRIAL COURT ATTORNEYS: WILLIAM L. PEEBLES
ROBERT R. MARSHALL
GEORGE H. GUNTER
COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: S. CHRISTOPHER FARRIS
ATTORNEYS FOR APPELLEES: GEORGE H. GUNTER
ROBERT R. MARSHALL
NATURE OF THE CASE: CIVIL - CUSTODY
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED AND THE
JUDGMENT OF THE LAMAR COUNTY
CHANCERY COURT IS REINSTATED AND
AFFIRMED - 12/11/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
PIERCE, JUSTICE, FOR THE COURT:
¶1. This appeal stems from a petition made by Amy Waites Ritchie (“Amy”) to modify
a custody agreement created by Jeffrey Scott Waites (“Scott”) and herself following their
divorce two years earlier.1 Amy petitioned for modification, seeking to move with her two
children to Iowa, as Amy planned to remarry there. Although Amy and Scott had agreed to
joint physical and legal custody, Amy’s proposed move to Iowa would make the provisions
of the agreement unworkable. After initiating the petition, Amy contacted T.J. Sanford
(“T.J.”) to let him know she believed him to be her eldest child’s biological father;
subsequently, a DNA test proved T.J.’s paternity and he joined the matter seeking custody.
¶2. After excluding Scott from consideration under Albright 2 as a non-natural parent, the
presiding chancellor awarded full physical and legal custody to Amy rather than T.J. The
chancellor allowed visitation for both Scott and T.J., with respect to the eldest child. Scott
appealed the court’s order, and the Court of Appeals reversed. Finding Scott’s fatherly
actions did rebut the natural-parent presumption afforded to Amy and T.J., the Court of
Appeals found Scott should have been considered on equal footing with the natural parents.
1
This case previously was designated confidential in error, and after approval from
all parties at oral argument before this Court, the matter is now no longer styled as such. In
the Court of Appeals’ opinion below Amy was referred to as “Anne,” Scott was “Jake,” T.J.
was “Tommie,” Victoria was “Vanessa,” and Brackston was “Brett.” See J.S.W. v. A.W.S.
and T.J.S., So. 3d , 2013 WL 6231797 .
2
See Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983) (“We reaffirm the rule
that the polestar consideration in child custody cases is the best interest and welfare of the
child. The age of the child is subordinated to that rule and is but one factor to be considered.
Age should carry no greater weight than other factors to be considered, such as: health, and
sex of the child; a determination of the parent that has had the continuity of care prior to the
separation; which has the best parenting skills and which has the willingness and capacity
to provide primary child care; the employment of the parent and responsibilities of that
employment; physical and mental health and age of the parents; emotional ties of parent and
child; moral fitness of parents; the home, school and community record of the child; the
preference of the child at the age sufficient to express a preference by law; stability of home
environment and employment of each parent, and other factors relevant to the parent-child
relationship.”)
2
The Court of Appeals remanded this case to the chancery court with instructions to consider
Scott under Albright.3 Amy and T.J. filed a writ of certiorari, which this Court granted. We
find the chancellor properly excluded Scott from consideration under Albright. Accordingly,
we reverse the Court of Appeals’ decision and reinstate and affirm the judgment of the
chancery court.
FACTS AND PROCEDURAL HISTORY
¶3. In 2004, seventeen-year-old Amy began dating twenty-one-year-old Scott. But, during
this period, Amy also had a brief relationship with T.J. In July 2004, Amy and Scott were
married, and on December 16, 2004, Amy gave birth to Victoria. Initially, Scott believed
Victoria was his child.4 Thereafter, Amy and Scott had a child together, Brackston.
¶4. In March 2007, T.J.’s mother contacted Amy, informed her that T.J. was about to be
deployed with the military, and questioned whether T.J. was Victoria’s father. Amy denied
that Victoria was T.J.’s daughter, but Scott overheard the conversation. On March 16, 2007,
Scott had a DNA test performed which confirmed that he was not Victoria’s biological
father. Nevertheless, Amy and Scott decided not to disclose Victoria’s paternity, and that
Scott would continue to raise her as his own child.
¶5. On December 15, 2009, the chancery court entered an Agreed Judgment of Divorce
as to Amy and Scott. The divorce judgment provided, in pertinent part, that “there were two
minor children born unto the parties,” Victoria and Brackston, and that “[t]he minor children
3
J.S.W. v. A.W.S. and T.J.S., _ So. 3d _, 2013 WL 6231797, at *1 (Miss. Ct. App.
Dec. 3, 2013).
4
As the chancery court noted, Scott “was present when [Victoria] was born, . . . cut
[Victoria’s] umbilical cord, and . . . even helped to name her.”
3
have been in the care, control and custody of” Amy and Scott. The parties were granted joint
legal and physical custody of the minor children, with custodial time divided on a week-to-
week basis. Both Amy and Scott certified they were Victoria and Brackston’s biological
parents, although both Amy and Scott knew this to be untrue, as the March 2007 DNA had
test confirmed Scott was not Victoria’s father.
¶6. Following the divorce, Amy married a man known as “Mr. Ritchie.” The marriage
lasted a few months, from May 2010 to December 2010. After divorcing Ritchie, Amy
began a relationship with Nick Rhods and planned to move to Iowa with both children, where
Rhods lived, after marrying him. On January 17, 2011, Amy contacted T.J. regarding the
possibility that he was Victoria’s father. On January 28, 2011, Amy sued T.J. for support.
After a DNA test revealed a 99.999% probability that T.J. was Victoria’s biological father,
T.J. filed a Motion for Custody, Visitation and Paternity with respect to Victoria, on March
3, 2011. Then, in November of 2011, Amy initiated a Petition for Modification of the 2009
custody agreement made by Scott and herself, so that she could move the children out of
state. Scott opposed.
¶7. On March 23, 2012, the chancery court entered its Findings of Fact, Conclusions of
Law and Final Judgment. According to the chancery court, Amy, Scott, and T.J. “all seek
to have primary physical custody of [Victoria].” The chancery court found, in pertinent part,
that:
[g]iven the testimony presented at trial, [T.J.] had to have known that there was
a possibility that he may have been the father of [Victoria], especially when he
heard [Amy] was pregnant, and calculated the months in his mind. The [c]ourt
also recognizes that [T.J.] did little to nothing to inquire or otherwise try to
involve himself in the life of a child that could have been his. However, the
4
[c]ourt does not find that [T.J.’s] conduct met the criteria for abandonment as
set out in Sellers [v. Sellers, 638 So. 2d 481 (Miss. 1994)]. After weighing the
rest of the factors set out in Sellers, it would seem that [T.J.] has not engaged
in conduct that was overly immoral so as to be a detriment to [Victoria], nor
does he appear to be one who is unfit to raise a child, especially since he is
currently raising his son from a previous relationship.
...
Although In re Leverock[, 23 So. 3d 424 (Miss. 2009),] differs from the case
at hand, in that [T.J.] has not “chosen to take an extended holiday from
parenthood,” the circumstances are quite similar. Here, [Victoria] has been
living with the idea that [Scott] is her biological father her entire life. She has
remained in the care and custody of both [Scott] and [Amy] for the past seven
years, and has been thriving. According to the holding of Leverock, the
[c]ourt cannot now arbitrarily remove [Victoria] from the care and custody of
[Scott] and [Amy], just based on [T.J.’s] right as a natural parent.
Leverock is distinguishable in another important way, and that is that we have
both natural parents vying for the custody of [Victoria]. The [c]ourt’s analysis
does not ignore any and all rights that [Scott] may have to [Victoria] under in
loco parentis.
...
Neither [T.J.] nor [Amy] have done anything to warrant this [c]ourt to deem
them unfit to raise their daughter, [Victoria]. [Scott] discovered that [Victoria]
was not his biological child in 2007. At that time he had reason to know, or
at least should have known, that there was a natural father out there
somewhere. However, rather than seek [T.J.] out, [Scott] chose to take no
action for the sake of keeping his family together, and continued to support
and care for [Victoria]. The [c]ourt finds this to be quite admirable. As such,
[Scott] has been effectively acting in loco parentis . . . . To phase [Scott]
entirely out of [Victoria’s] life would be certainly detrimental to her well
being. . . . [Scott] is therefore entitled to visitation rights to [Victoria]. The
[c]ourt, however, must now decide who should be entitled to physical custody
of [Victoria] as between the child’s natural parents, [Amy] and [T.J.].
5
After conducting an Albright analysis as to Victoria’s natural parents, the chancery court
concluded that it would be in Victoria’s “best interest” for Amy to “retain full legal and
physical custody . . . , subject to visitation of both [T.J.] and [Scott].” 5
¶8. Thereafter, Scott filed a Motion to Set Aside Judgment or in the Alternative to
Reconsider the Findings of Fact, Conclusions of Law and Final Judgment and for
Modification of the Final Judgment. Scott argued that the chancery court failed to consider
him, “who was found to be the father in loco parentis, in the Albright factors[,]” along with
Amy and T.J.. The chancery court denied Scott’s motion. According to the chancery court,
Scott was not entitled to physical-custody consideration in the Albright analysis because he
failed to prove that Amy and T.J. “were unfit,” and the Albright analysis for primary physical
custody would consider only Amy and T.J.
¶9. Finding that neither Amy nor T.J., as the child’s biological parents, was “unfit” to
raise Victoria, Scott, who had “effectively act[ed] in loco parentis[,]” was entitled only to
visitation rights. Following the Albright analysis, the chancery court concluded that it would
be in Victoria’s “best interest” for Amy to “retain full legal and physical custody . . . , subject
to visitation of both [T.J.] and [Scott].” Thereafter, the chancery court denied Scott’s Motion
to Reconsider. Scott then appealed.
¶10. The Mississippi Court of Appeals described this as “a three-way custody action
between (1) the natural mother (“Amy”), (2) the mother’s ex-husband (“Scott”), who had
supported, cared, and treated the child as his own, and (3) the man who turned out to be the
5
The chancellor did not modify custody with respect to Brackston, which Amy and
Scott share.
6
child’s biological father (“T.J.”).” J.S.W., 2013 WL 6231797, at *1. The Court of Appeals
reversed the judgment awarding custody to Amy, and remanded “for the chancery court to
conduct an Albright analysis that takes into consideration whether it would be in the child’s
best interest for [Scott] to be awarded custody.” 6 See J.S.W., 2013 WL 6231797, at **1, 6.
The Court of Appeals determined that:
in this “very limited, unique situation,” the fact [Scott] stood in loco parentis
by his fatherly actions towards the child does rebut the natural parent
presumption. Thus, the chancellor erred by not considering [Scott] on equal
footing with [Amy] and [T.J.] when determining which of the three should be
awarded custody.
Id. at *1 (quoting Smith, 97 So. 3d 43, 47 (Miss. 2012)) (emphasis in original). On June 3
and June 10, 2014, the Court of Appeals’ denied the motions for rehearing filed by Amy and
T.J.
ANALYSIS
I. Whether the Court of Appeals’ decision is contrary to existing law.
¶11. The Court of Appeals held that the chancery court “applied the wrong legal standard.”
J.S.W., 2013 WL 6231797, at *3. According to the Court of Appeals:
[t]he chancellor found that Scott stood in loco parentis to Victoria; that he had
supported, cared, and treated her as his own child, even after he learned about
her biological parentage; and that he had shared her custody and expenses after
the divorce. This put Scott in a “very limited, unique situation[,]” where his
supportive actions towards the child – versus the natural parent’s harmful
actions – rebutted the natural-parent presumption.
6
Maxwell, J., writing. Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts and
Fair, JJ., concur. James, J., concurs in part and dissents in part without separate written
opinion. Carlton, J., not participating.
7
Id. (quoting Smith, 97 So. 3d at 47). Relying upon Griffith v. Pell, 881 So. 2d 184 (Miss.
2004), and J.P.M. v. T.D.M., 932 So. 2d 760 (Miss. 2006), the Court of Appeals found that
“the doctrine of in loco parentis has been used to put the presumed father on equal footing
with the natural parent.” J.S.W., 2013 WL 6231797, at **4-5. According to the Court of
Appeals, “[t]he only difference between this case and Pell and J.P.M. is that, in those cases,
the natural father either disclaimed any rights to the child or could not be conclusively
established.” Id. at *5. By 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 *6.
¶12. Amy and T.J. assert that:
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. 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.
According to Amy and T.J., the “three-way Albright analysis” contemplated by the Court of
Appeals should not be undertaken “until the natural parent presumption is overcome by a
finding of unfitness . . . .” They added that “[i]f this law is going to be changed, the change
needs to be initiated by” this Court.
¶13. “A chancellor’s custody decision will be reversed only if it was manifestly wrong or
clearly erroneous, or if the chancellor applied an erroneous legal standard.” Smith, 97 So.
3d at 46. Scott’s argument, accepted by the Court of Appeals, is that in his role “as in loco
parentis[,] [he] did not have to rebut the natural parent presumption. He had just as much
right to custody of [Victoria] as did [T.J.] and [Amy].” In other words, as stated by the Court
8
of Appeals, the chancery court “applied the wrong legal standard.” J.S.W., 2013 WL
6231797, at *3.
¶14. Recently, in Davis v. Vaughn, 126 So. 3d 33 (Miss. 2013), which involved a custody
dispute between a natural father anda 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 parentis 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, 128 So. 2d
877, 879 (Miss. 1961)) (emphasis in original). But, in custody disputes involving natural
parents, the natural-parent presumption may only “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.’” Davis, 126 So. 3d at 37 (quoting Smith, 97
So. 3d at 46). So:
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. 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.
7
See id. at 34-35 (citing Smith, 97 So. 3d at 43).
9
Davis, 126 So. 3d at 37 (quoting Smith, 97 So. 3d at 46-47) (internal citations omitted)
(emphasis added).8 This Court added that “[i]f 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.” Davis, 126 So. 3d at 37 (citing Smith,
97 So. 3d at 46).9
¶15. Smith involved a custody dispute between a child’s grandparents and his natural
parents. Smith, 97 So. 3d at 44. According to this Court, “a natural parent loses the legal
presumption that custody should be with him or her only if there has been a clear showing
of abandonment, desertion, or unfitness on the part of the parent. The Albright factors are
not considered unless such showing has first been made.” Id. (internal citations omitted)
(emphasis added). In so holding, this Court emphasized that “[t]he doctrine of in loco
parentis does not, by itself, overcome the natural-parent presumption.” Id. at 46-47. And
this Court specifically referenced the decisions relied upon by the Court of Appeals in the
case sub judice (i.e., Pell and J.P.M.). See id. at 47. According to this Court:
[i]n loco parentis can – in very limited, unique situations – sometimes be used
to help rebut the natural-parent presumption. In both Pell and J.P.M., a
husband learned during the pendency of divorce proceedings that he was not
the biological father of a child born of, or just prior to, the marriage. In those
cases, we reasoned that the natural-parent presumption had been overcome
8
See also Leverock, 23 So. 3d at 431; Sellers, 638 So. 2d at 485 (quoting Moody v.
Moody, 211 So. 2d 842, 844 (Miss. 1968)) (“it is the strong policy of the law of this State
that a child shall remain in the custody of one of the parents unless there has been a clear
showing that both are unfit”).
9
See also Leverock, 23 So. 3d at 431 (“If the court finds one of these factors has been
proven, then the presumption vanishes, and the court must go further to determine custody
based on the best interests of the child through an on-the-record analysis of the Albright
factors”).
10
based on several facts: (1) the husbands stood in loco parentis; (2) they had
supported, cared for, and treated the child as their own; (3) they could have
been required to pay child support (“with the burden should go the benefit”);
and (4) the biological fathers were not really in the picture: the one in Pell had
disclaimed any interest in the child and had agreed to relinquish his parental
rights, while the one in J.P.M. could not even be determined conclusively.
Though in loco parentis was considered in Pell and J.P.M., those cases do not
support – nor have we ever suggested – that in loco parentis alone can rebut
the natural-parent presumption.
Id. (internal citations omitted) (emphasis added).
¶16. However, Smith also included the following footnote:
[i]n Pell, we reversed the chancellor’s termination of the husband’s parental
rights and remanded the case for a best-interest Albright analysis; thus, we
implicitly found that the natural-parent presumption had been overcome. And
in J.P.M., we relied on Pell to affirm the chancellor’s decision to award
physical custody to the husband. In doing so, we specifically rejected the
wife’s argument that the chancellor had not had the authority to award
custody to the husband without first finding that she had abandoned the child,
that her conduct was immoral as to be detrimental to the child, or that she was
mentally or otherwise unfit for custody.[10 ]
Smith, 97 So. 3d at 47 n.3 (internal citations omitted) (emphasis added). And while this
Court further noted Presiding Justice Cobb’s “well-taken” special concurrence in J.P.M.,
which critiqued the majority for “us[ing] in loco parentis to strip custody from [a natural
10
J.P.M. indicated that the “legal father” since the child’s birth, who had supported
the child under the assumption that he was her natural father and had sustained a “strong
father-daughter relationship[,]” was her “father in fact[,]” with “legal rights and obligations”
different from those of other third parties (e.g., aunts, grandparents). J.P.M., 932 So. 2d at
768-70. It is unclear whether the rights afforded were truly custody rights, or whether they
were mere visitation rights, but it appears the latter was intended, as this Court ultimately
affirmed the chancery-court judgment in J.P.M. Additionally, the chancellor in the case sub
judice interpreted J.P.M. as providing solely for visitation. See Griffith, 881 So. 2d at 186,
(“[M]erely because another man was determined to be the minor child’s biological father
does not automatically negate the father-daughter relationship held by [the in loco parentis
father] and the minor child.”)
11
parent][,]” it added that Pell and J.P.M. “are limited to their unique facts[,]” and that “in loco
parentis was just one of the factors that influenced the Court’s decision in those cases.”
Smith, 97 So. 3d at 47 n.4 (quoting J.P.M., 932 So. 2d at 781 (Cobb, P.J., specially
concurring)).
¶17. This Court does not find, per the Court of Appeals’ conclusion, that the chancery court
applied the wrong legal standard. J.S.W., 2013 WL 6231797, at *3. 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).11 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. 12
11
See Davis, 126 So. 3d at 37 (quoting Smith, 97 So. 3d at 46).
12
See Davis, 126 So. 3d at 34-35, 37 (“a third party’s in loco parentis status, standing
alone, could not rebut the natural-parent presumption”; at most, in loco parentis “may be a
factor in determining whether the presumption has been rebutted”); Smith, 97 So. 3d at 47
(“[i]n loco parentis can – in very limited, unique situations – sometimes be used to help rebut
the natural-parent presumption”; Pell and J.P.M. “do not support – nor have we ever
suggested – that in loco parentis alone can rebut the natural-parent presumption”).
12
¶18. The facts of this case strike this Court as somewhat distinguishable from the “unique
facts” in Pell and J.P.M. Unlike those cases, in which “the biological fathers were not really
in the picture[,]” here, upon confirming that Victoria was his daughter, T.J. instituted custody
proceedings. Also, the fact remains that, as early as March 2007, Scott was aware that he
was not Victoria’s biological father, yet in the 2009 divorce proceedings, both he and Amy
actively purported his paternity to the chancery court. Moreover, in Pell, the in loco parentis
party had support from the biological father, who sought to wholly relinquish his parental
rights and transfer them to the nonbiological father via adoption.
The parties to the paternity suit entered into an agreed order declaring Griffith
the biological father, ordering child support, and stating that all other matters
would be decided by the chancellor at a later date. Later, Sonny and Griffith
[the in loco parentis party and the biological father] filed a motion for
declaratory judgment, requesting that Sonny be declared the legal father of the
child arguing . . . not only that this declaration would be in the best interest of
the child but that Sue Ann should be estopped from denying Sonny’s paternity
as well. Griffith agreed to relinquish all parental rights and allow Sonny to
adopt the child. The chancellor denied their motion for declaratory judgment,
set child support payments, and granted Griffith reasonable visitation.
Pell, 881 So. 2d at 185. Unlike the biological father in Pell, in this action, the biological
father not only sought custody, but did so to the exclusion of the in loco parentis party.13 For
reasons unknown, the chancellor in Pell denied the natural and in loco parentis fathers’
requests for what was, essentially, an intended adoption. And it appears from Smith that this
Court found the presumption rebutted by the exception created in Pell, based upon what the
biological father wanted.
13
T.J. testified, “[Scott] can have visitation . . . [w]hen he goes and picks up
[Brackston], his son, he can visit with my daughter . . . because I’m the father.”
13
¶19. Under the present state of the law, in the absence of rebutting the natural-parent
presumption via clear and convincing evidence of abandonment, desertion, immoral conduct
detrimental to the child, and/or unfitness, “[t]he court may not consider granting custody to
a third party, including one standing in loco parentis . . . .” Davis, 126 So. 3d at 37 (quoting
Smith, 97 So. 3d at 46-47).
¶20. We find the chancellor’s determination in this case to be correct, given the controlling
law discussed above.
CONCLUSION
¶21. We find the chancellor applied the correct legal standard, and, on this basis, we
reverse the Court of Appeals’ decision. Absent a finding that the natural parents had
abandoned, deserted, or were unfit to rear their child, the chancellor properly conducted the
requisite analysis for custody and thereby properly excluded the in loco parentis party from
consideration. Accordingly, we reverse the Court of Appeals’ decision and reinstate and
affirm the judgment of the Lamar County Chancery Court.
¶22. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS REINSTATED
AND AFFIRMED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
CHANDLER, KING AND COLEMAN, JJ., CONCUR.
14