Roger Lynn Neely v. Kaleb Matthew Welch

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-01022-COA
ROGER LYNN NEELY APPELLANT
v.
KALEB MATTHEW WELCH APPELLEE
DATE OF JUDGMENT: 05/08/2013
TRIAL JUDGE: HON. DAVID SHOEMAKE
COURT FROM WHICH APPEALED: SIMPSON COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: RENEE M. PORTER
ATTORNEYS FOR APPELLEE: WESLA ANN SULLIVAN LEECH
ALEITA M. SULLIVAN
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: FULL CUSTODY OF THE MINOR CHILD
GRANTED TO THE NATURAL FATHER
DISPOSITION: AFFIRMED - 11/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., ISHEE AND WILSON, JJ.
WILSON, J., FOR THE COURT:
¶1. The facts of this case are undeniably tragic. In August 2012, Holly Jennings Neely
passed away at the age of twenty as a result of complications from childbirth. Her newborn
son also died. Holly was survived by her daughter, Riley Grace Neely, who was then not
quite two years old, and her husband, Roger Neely, who was Riley’s stepfather. A
contentious custody dispute ensued between Roger and Riley’s biological father, Kaleb
Welch. The chancellor observed that both men, as well as their families, clearly loved Riley
very much. Ultimately, the chancellor granted Kaleb physical and legal custody and granted
specified visitation to Riley’s maternal grandparents. Roger was awarded neither custody
nor visitation. While the facts of this case are heartbreaking, the law that governs them—in
particular the natural parent presumption—is clear, and the chancellor applied it correctly.
Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On September 28, 2010, Holly Jennings Neely gave birth to a daughter, Riley Grace.
Holly and her husband, Roger Neely, had been married less than three weeks when Riley was
born, and both Holly and Roger knew that he was not Riley’s biological father. Riley’s
biological father is Kaleb Welch, with whom Holly had a prior relationship. Nonetheless,
Riley’s birth certificate listed Roger as the father and gave her the surname Neely.
¶3. Six months after Riley’s birth, Kaleb filed a petition for a determination of paternity
and custody. Kaleb’s petition alleged that Holly had represented to him that he was Riley’s
biological father. Kaleb’s petition sought genetic testing and, if he was shown to be the
father, joint custody. Kaleb’s petition also confirmed that he would pay child support if
shown to be Riley’s father.
¶4. Holly’s answer admitted that she had represented to Kaleb that he was Riley’s father.
Holly also admitted that if genetic testing confirmed her representation, Kaleb would be
entitled to “joint legal custody and . . . standard visitation rights,” but Holly asked that “she
be granted primary physical custody of [Riley].”1 Holly also agreed that Kaleb should be
1
“Although it is a phrase commonly used by lawyers and judges,” including appellate
judges, “there is actually no provision under the statute for ‘primary’ physical custody.”
Rush v. Rush, 932 So. 2d 794, 796 (¶9) (Miss. 2006). The statute provides for “joint
physical custody and physical custody in one parent or the other.” Id. (citing Miss. Code
2
required to pay child support.
¶5. Testing confirmed that Kaleb is Riley’s biological father, and on November 11, 2011,
the chancellor signed an agreed order establishing paternity, custody, and child support.
Under the terms of the order, Riley’s birth certificate was amended to identify Kaleb as her
biological father, but her surname remained Neely. Kaleb and Holly were granted joint legal
custody, Holly was granted physical custody, and Kaleb was granted essentially “liberal”
visitation,2 structured to coincide with his offshore work schedule. Kaleb was also required
to pay child support to Holly, including back child support since the date of Riley’s birth.
Holly and Kaleb both signed the agreed order.
¶6. On August 6, 2012, Holly passed away as a result of complications from childbirth.3
On August 24, Kaleb filed a petition seeking a modification of custody and support, in which
he stated that Riley had been in his physical custody since Holly’s death. Roger subsequently
filed a complaint for emergency custody and other relief and a motion to intervene and
response to Kaleb’s petition. Roger alleged that granting him physical custody was in Riley’s
best interest, that he stood in loco parentis, and that Kaleb had deserted Riley. In October,
the chancellor signed a temporary order directing that physical custody of Riley would
alternate between Kaleb and Roger on a two-week basis to coincide with Kaleb’s offshore
Ann. § 93-5-24). As in this case, the phrase “primary physical custody” is typically intended
to describe physical custody in one parent, with the other having specified visitation rights.
2
See Chalk v. Lentz, 744 So. 2d 789, 792 (¶9) (Miss. Ct. App. 1999).
3
A few days before Holly’s untimely death, she had given birth to a son. Holly and
Roger’s son passed away on August 5, 2012.
3
work schedule. The order stated that all other provisions of the November 2011 order
establishing paternity, custody, and support would remain in effect.
¶7. The chancellor appointed a guardian ad litem (GAL) to investigate, to make
recommendations to the court, and to act in all respects to protect Riley’s best interest. The
GAL’s report was filed with the court prior to the hearing on permanent custody of Riley.
The chancellor informed the parties that he would depend on the report in making his ruling,
to which neither party objected.
¶8. The GAL visited with Kaleb and his wife, Kayla, at their home. She observed that
Riley appeared to have a good relationship with Kaleb and Kayla and played well and
seemed to have bonded with her younger half-sister, Kaylan, whom she called “sissy.” The
GAL noted that Riley was talkative and playful and crawled into Kaleb’s lap and called him
“daddy.” During the GAL’s visit, Kaleb’s dad drove up, and Riley was happy to see him and
climbed up in his truck with him. Kaleb told the GAL that Riley had returned from visits
with Roger with diaper rashes, bruises, and other minor injuries.
¶9. The GAL also visited Roger at the home of Holly’s parents, Mike and Gayle Jennings,
with whom Roger was then living. Roger and the Jennings denied Kaleb’s claims that he had
returned Riley to Kaleb with diaper rash or injuries. They alleged that it was the other way
around—that Kaleb returned Riley to Roger with diaper rashes, infections, and minor
injuries. Roger also claimed that Riley cried and resisted leaving him to go with Kaleb but
would “lunge” out of Kaleb’s or Kayla’s arms to come back to him.
¶10. The GAL also met with other family members: Kaleb’s parents and stepmother,
4
Kayla’s parents, Kaleb’s brother, and Roger’s mother and stepfather. Their statements to the
GAL lined up with either Kaleb’s/Kayla’s or Roger’s: Kaleb’s and Kayla’s families believed
Kaleb and Kayla were good and loving parents, while suggesting that Roger was neglectful
if not abusive, and Roger’s family believed exactly the opposite was true.4 The GAL
concluded that Kaleb, Kayla, Roger, the Jennings, and the rest of their families all loved and
cared for Riley, and she found no clear evidence of abuse by anyone. She noted that
although Riley had seen doctors and nurse practitioners regularly, and Mike Jennings even
called DHS at one point (because Riley came home with a splinter in her foot), there was no
evidence that any healthcare provider or other qualified professional ever suspected abuse.
¶11. In the conclusion of her report to the court, the GAL reiterated that it was clear that
both Kaleb and Roger loved Riley very much. The GAL also stated that she did not believe
that it would be in Riley’s best interest for either Roger or the Jennings to be completely out
of Riley’s life. However, she also concluded that Kaleb had neither abandoned nor deserted
Riley, that there was no evidence that Kaleb was an unfit parent, and that Roger did not meet
the legal standard for in loco parentis. Based on these conclusions, the GAL recommended
that Kaleb be granted sole legal and physical custody and that Riley’s surname be changed
to Welch.
¶12. A hearing was held on the issue of permanent custody of Riley on April 11, 2013. At
the outset of the hearing, the chancellor made clear that the purpose of the hearing was to
4
Kaleb and Roger also traded similar allegations of abuse or neglect in various
pleadings. There are also scattered allegations of drug use in the record. However, in
October 2012, the court ordered Kaleb, Kayla, and Roger to submit to drug tests, and the
results of the tests were all negative.
5
address the threshold issue whether Roger could make a clear showing of one of the limited
grounds for overcoming the natural parent presumption, i.e., abandonment, immoral behavior
detrimental to the child, or parental unfitness. Roger’s attorney agreed that was Roger’s
burden and the issue before the court, and she then proceeded to present his case.
¶13. Roger testified and called his mother, his stepfather, and the Jennings as witnesses.
Their testimony at the hearing can be summarized as generally consistent with their prior
statements to the GAL. They believed that Roger was a good and loving father and should
have custody. They believed that Kaleb had abandoned or deserted Riley because he was not
there when she was born and during the first six months to one year of her life. And they
believed that Kaleb and Kayla were uncaring, unfit, neglectful, or even abusive parents.
However, consistent with the GAL’s conclusions, no clear evidence of abuse or unfitness
was presented—only accusations of inattentiveness, rudeness, or bad language, together with
reports of rashes or minor injuries. After Roger rested, Kaleb moved to dismiss Roger’s
complaint for custody on the ground that Roger had failed to present evidence sufficient to
overcome the natural parent presumption.
¶14. The chancellor then called the families back into the courtroom to deliver and explain
his ruling. He explained—as he had at the outset of the hearing—that to rebut the natural
parent presumption, Roger needed to present clear and convincing evidence that Kaleb had
abandoned or deserted Riley, that Kaleb’s behavior was so immoral as to be harmful to Riley,
or that Kaleb was an unfit parent. The chancellor found that Roger failed to meet this
burden. He found that Kaleb’s petition for custody only six months after Riley was born and
6
his subsequent financial support and involvement in her life defeated any claim of
abandonment or desertion. He also found that there was no evidence of abuse or unfitness
but only reports of minor injuries or rashes of the kind that “happen with all children.”
Accordingly, he found “no evidence that Kaleb Welch is guilty of anything that would
overcome the legal presumption that the best interest of the child requires the child to be in
the custody of the surviving natural parent.” The chancellor told the families that it was clear
that they all loved Riley and that he felt for all of them, especially Roger. However, as the
natural parent, Kaleb was entitled to custody.
¶15. The chancellor suggested that, unless an agreement could be worked out, Roger and
the Jennings could petition for visitation. Roger’s attorney then noted that Roger’s pleadings
already included an alternative request for visitation. The chancellor responded, “[T]hen I
want [you] to try to work out some kind of reasonable visitation. But he is certainly, in my
opinion, entitled to some kind of visitation.”
¶16. On May 10, 2013, judgment was entered awarding sole legal and physical custody to
Kaleb, changing Riley’s surname to Welch, and dismissing Roger’s pleadings with prejudice.
In the judgment, consistent with his ruling from the bench, the chancellor found that Roger
had “wholly failed to prove by clear and convincing evidence” any ground for overcoming
the natural parent presumption. “In order to avoid a multiplicity of suits,” the judgment did
grant the Jennings visitation with Riley one weekend each month, one week in July, and on
specified holidays. But Roger was not granted any visitation rights. Roger filed a motion
for a new trial or reconsideration, which was denied in June 2014, and then appealed.
7
ISSUES
¶17. Roger raises four issues on appeal: (1) that “the abrupt change of custody and
complete and total termination of all standing and rights of . . . Roger to Riley . . . is manifest
error in that [Riley’s] best interest . . . was ignored” and no Albright5 analysis was conducted;
(2) that “he overcame the natural parent presumption,” and the chancellor’s ruling to the
contrary is error; (3) that the chancellor’s “failure . . . to consider [him] as in loco parentis
in an atypical and unique child custody matter is manifest error”; and (4) that the chancellor’s
failure to “at least” grant him “reasonable visitation” is “manifest error.” While we will
address all of Roger’s arguments, the only material issue in this appeal is whether the
chancellor manifestly erred when he found that Roger failed to prove, by clear and
convincing evidence, any of the grounds for overcoming the natural parent presumption.
Unless that finding is clearly wrong, Roger is not entitled to custody or visitation regardless
of the other issues and arguments that he raises on appeal. Because we find that substantial
evidence supports the chancellor’s finding, we affirm.
ANALYSIS
¶18. “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 v. Smith,
97 So. 3d 43, 46 (¶7) (Miss. 2012) (citing Johnson v. Gray, 859 So. 2d 1006, 1012 (Miss.
2003)). “[T]his Court cannot reweigh the evidence and must defer to the chancellor’s
findings of the facts, so long as they are supported by substantial evidence.” Hall v. Hall,
5
Albright v. Albright, 437 So. 2d 1003 (Miss. 1983).
8
134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014); see Murphy v. Murphy, 631 So. 2d 812,
815 (Miss. 1994); Carter v. Carter, 735 So. 2d 1109, 1114 (¶18) (Miss. Ct. App. 1999).
With these standards in mind, we turn to the issues presented on appeal.
I. The Natural Parent Presumption
¶19. “[T]he natural parent presumption [is] a bedrock principle of Mississippi family law.”
K.D.F. v. J.L.H., 933 So. 2d 971, 980 (¶35) (Miss. 2006) (quotation marks omitted). “Giving
preference to natural parents, even against those who have stood in their place, honors and
protects the fundamental right of natural parents to rear their children.” Davis v. Vaughn,
126 So. 3d 33, 37 (¶13) (Miss. 2013) (emphasis added). The presumption has been applied
for more than one hundred years. See id. at 37-38 (¶13). As our Supreme Court explained
in 1879 and again in 2013,
Nature gives to parents that right to the custody of their children which the law
merely recognizes and enforces. It is scarcely less sacred than the right to life
and liberty, and can never be denied save by showing the bad character of the
parent, or some exceptional circumstances which render its enforcement
inimical to the best interests of the child.
Davis, 126 So. 3d at 37-38 (¶13) (quoting Moore v. Christian, 56 Miss. 408 (1879)).
¶20. Thus, just last year, our Supreme Court reaffirmed:
[I]n 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.’”
In re Waites, 152 So. 3d 306, 311 (¶14) (Miss. 2014) (emphasis added) (quoting Davis, 126
So. 3d at 37 (¶10) (quoting Smith v. Smith, 97 So. 3d 43, 46 (¶9) (Miss. 2012))). Whether
9
such a showing has been made is “a factual question best left to the trial judge,” and “his
findings of fact” will be affirmed if they are “neither manifestly wrong nor clearly
erroneous.” Davis, 126 So. 3d at 39-40 (¶20).6
A. Abandonment or Desertion
¶21. A third party may rebut the natural parent presumption through clear and convincing
evidence that the natural parent has abandoned or deserted his child. Davis, 126 So. 3d at
37 (¶10). “Desertion is defined as ‘foresaking one’s duty as well as a breaking away from
or breaking off associations with some matter involving a legal or moral obligation or some
object of loyalty,” while “abandonment has to do with the relinquishment of a right or
claim[.]’” Id. at 39 (¶17) (quoting Petit v. Holifield, 443 So. 2d 874, 878 (Miss. 1984)).
¶22. The parties dispute exactly when Kaleb knew of Riley’s birth and exactly what actions
he took in response. Kaleb and his family have maintained that he made efforts to see his
child prior to filing a petition to determine paternity and custody in March 2011, but Holly
refused, and he finally realized he needed a lawyer. They also maintain that Holly was not
served with process until June 2011 only because she and Roger moved frequently and could
not be found. In contrast, Roger, his family, and the Jennings maintain that the petition was
Kaleb’s first contact and that he was not diligent in pursuing it. They also claim that Kaleb
6
In his reply brief, Neely argues that social and legal developments have rendered the
natural parent presumption obsolete. He cites, inter alia, the increasing prevalence of “the
‘nontraditional family’ . . . in our society” and Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
The argument is procedurally barred because it was raised for the first time in a reply brief
on appeal. Univ. of Miss. Med. Ctr. v. Johnson, 977 So. 2d 1145, 1158 (¶47) (Miss. Ct.
App. 2007). Also, “this court lacks authority to overrule Mississippi Supreme Court
precedent.” Hudson v. WLOX Inc., 108 So. 3d 429, 432 (¶10) (Miss. Ct. App. 2012).
10
has admitted that “Roger stood up and was a daddy when I wasn’t man enough to be one.”
¶23. Regardless of whose version of events is accepted, it is evident that Kaleb did not
abandon or desert Riley. To the contrary, he petitioned for genetic testing, a determination
of paternity, custody—and for a court order requiring him to pay child support—when Riley
was six months old. While an intentional six-month delay in assuming one’s parental
responsibilities—assuming, solely for the sake of argument, that is what occurred in this
case—is cause for moral criticism, it does not rise to the level of legal abandonment or
desertion. For example, in Davis, the Supreme Court unanimously affirmed the chancellor’s
finding that the father had not deserted his daughter even though during the first three and
a half years of her life, his “interaction with her was sporadic, and he contributed little
financial assistance.” Davis, 126 So. 3d at 35 (¶3); see id. at 39 (¶¶16-19); Vaughn v. Davis,
36 So. 3d 1261, 1262 (¶2) (Miss. 2010) (prior opinion explaining that during this time the
father “failed to visit [his daughter] regularly and paid only $100 of support”). In contrast,
cases in which abandonment or desertion have been found involved substantially longer and
greater derelictions of parental duties than even the worst that is alleged in this case.7 Roger
presents no persuasive authority for his argument that the six-month delay between Riley’s
7
See, e.g., Smith, 97 So. 3d at 45-46 (¶¶3-4) (finding a mother deserted her son by
“long and continuous absences” and lack of support or apparent interest throughout the first
six years of his life); In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424,
430-31 (¶¶22-23) (Miss. 2009) (finding desertion based on a father’s voluntary “complete
and total absence of any contact or support for two and a half years of [the] three-year-old
[son’s] young life”—the father did not “see, talk, or otherwise visit his son,” nor did he
provide any financial assistance or ever send a birthday or Christmas card or gift); Hill v.
Mitchell, 818 So. 2d 1221, 1227 (¶¶27-31) (Miss. Ct. App. 2002) (affirming a finding of
constructive abandonment where a mother visited her daughter only a few times a year over
the first decade of her life).
11
birth and Kaleb’s petition, in which Kaleb not only asserted his parental rights but also
accepted parental responsibilities, is a period sufficient to constitute desertion, much less
abandonment. Therefore, we must affirm the chancellor’s finding that Roger failed to prove
desertion or abandonment by clear and convincing evidence.
B. Unfitness or Harmful Immoral Conduct
¶24. Where neither abandonment nor desertion is proven, a third party seeking to overcome
the natural parent presumption must prove by clear and convincing evidence that the natural
parent is engaging in conduct so immoral as to be a detriment to the child or that the parent
is “mentally or otherwise” unfit for custody. Davis, 126 So. 3d at 37 (¶10). For example,
the Supreme Court has upheld a chancellor’s finding of harmful immorality where the father
compelled his son to make false charges of sexual abuse against his maternal uncle. This not
only showed “a profound lack of respect for honesty, truth, and rectitude of conduct” but also
taught the son that it was appropriate to lie “to gain his desire,” without regard to the lie’s
impact on others. S.C.R. v. F.W.K., 748 So. 2d 693, 700 (¶43) (Miss. 1999). The Supreme
Court upheld a chancellor’s finding of unfitness based on proof that the father had abused
drugs and alcohol in his son’s presence, drove drunk with his son in the car, exposed his son
to “sexual situations,” carried on sexual relationships with married women, and threatened
and abused his son. In re Custody of M.A.G., 859 So. 2d 1001, 1004 (¶7) (Miss. 2003). And
this Court has upheld a finding of parental unfitness where the chancellor heard credible
evidence that the father, among other things, abused alcohol, drove drunk with his children
in the car, gave his eleven-year-old son alcohol, sold “pills” out of his house, got into
12
fistfights, and failed to provide minimal food or supervision or a safe or sanitary home. See
Lucas v. Hendrix, 92 So. 3d 699, 701-05, 707 (¶¶4-13, 19) (Miss. Ct. App. 2012).
¶25. In contrast, evidence of a parent’s occasional intoxication, past (as opposed to present)
drug use, and an occasional temper are not clear and convincing evidence of unfitness. See
Westbrook v. Oglesbee, 606 So. 2d 1142, 1146 (Miss. 1992). In another case, it was held that
the parent’s “admitted . . . high temper and . . . difficulty controlling it,” which included
occasionally violent behavior, was not clear and convincing evidence of moral unfitness. See
Moody v. Moody, 211 So. 2d 842, 843-44 (Miss. 1968). 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.” Deborah H. Bell, Mississippi Family Law
§ 5.06[2][a], at 121 (2005).
¶26. Roger alleged that Kaleb abused or neglected Riley, and his witnesses testified to
seeing marks, scratches, and diaper rashes on Riley after she returned from Kaleb’s custody.
Kaleb and his family denied all this and made similar allegations against Roger. Ultimately,
both the GAL and the chancellor concluded that there was no credible evidence—much less
clear and convincing evidence—to support anyone’s claims. As the chancellor noted, the
rashes, scratches, and bruises testified to are the sorts of things that “happen with all
children.” Further, no witness testified that they had personally witnessed Kaleb behave in
a manner harmful to Riley. Thus, substantial evidence supports the chancellor’s finding that
there was no proof of abuse, neglect, harmful immoral conduct, or other parental unfitness.
Accordingly, Roger failed to meet his burden of proof on these issues as well, and the
13
chancellor did not err by finding that he had not overcome the natural parent presumption.
II. Roger’s Other Arguments Regarding Custody
¶27. Because Roger failed to overcome the natural parent presumption by clear and
convincing evidence, he is not entitled to custody. As the surviving biological parent, Kaleb
is entitled to sole custody. See 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 Albright 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. Stegall, 151 Miss. 875, 119
So. 802, 803 (1929)); Miss. Code Ann. § 93-13-1 (Rev. 2013) (“The father and mother are
the joint natural guardians of their minor children and are equally charged with their care .
. . . If either father or mother die . . . , the guardianship devolves upon the surviving
parent.”). This clear principle is dispositive. However, Roger presents a series of additional
arguments, which we will address.
¶28. First, Roger claims in his first issue on appeal that the chancellor erred because he
“ignored” Riley’s best interest in that he failed to conduct an Albright analysis. But as
discussed just above, in a custody dispute between a natural parent and a third party, the
chancellor may proceed to an Albright analysis only if the third party first overcomes the
natural parent presumption. Roger failed to meet this burden, and so this argument fails. The
chancellor did not “ignore” Riley’s best interest. He properly adhered to the “bedrock
14
principle of Mississippi family law” (K.D.F., 933 So. 2d at 980 (¶35)) that, absent clear and
convincing proof to the contrary, “it is in [Riley’s] best interest to remain with [her] natural
parent” (Davis, 126 So. 3d at 37 (¶10) (emphasis added) (quoting Leverock, 23 So. 3d at 429
(¶19))). Accordingly, Roger’s first issue on appeal is without merit.
¶29. Roger also claims that he is entitled to custody because he is “in loco parentis.” But
in loco parentis status only grants “a right to custody of the child ‘as against third persons.’”
Davis, 126 So. 3d at 37 (¶11) (quoting Farve v. Medders, 128 So. 2d 877, 879 (Miss. 1961)).
“[S]uch rights are inferior to those of a natural parent. Thus, 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). Again, Roger’s failure to overcome the
natural parent presumption means that Kaleb retains custody. This argument also lacks merit.
¶30. The Supreme Court has now made clear that only “in very limited, unique situations”
can in loco parentis “sometimes be used to help rebut the natural-parent presumption.”
Smith, 97 So. 3d at 47 (¶11) (emphasis added) (citing J.P.M. v. T.D.M., 932 So. 2d 760
(Miss. 2006); Griffith v. Pell, 881 So. 2d 184 (Miss. 2004)). This is not one of those limited,
unique situations. In Smith and again in Waites, the Supreme Court emphasized that “[i]n
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.” Waites, 152
So. 3d at 312 (¶15) (quoting Smith, 97 So. 3d at 47 (¶11) (citing J.P.M., 932 So. 2d at 762;
Pell, 881 So. 2d at 185)). And in Pell and J.P.M., the Court found “that the natural-parent
presumption had been overcome based on several facts: (1) the husbands stood in loco
15
parentis; (2) they had supported, cared for, and treated the child as their own; (3) they could
have been required to pay child support . . . ; and (4) the biological fathers were not really
in the picture.” Smith, 97 So. 3d at 47 (¶11) (citing Pell, 881 So. 2d at 186-87; J.P.M., 932
So. 2d at 767-70). In Pell, the father had expressly disclaimed his parental rights, and in
J.P.M. the father could not even be determined. See id. The Supreme Court recently made
clear that the doctrine of in loco parentis and the holdings of Pell and J.P.M. will not assist
a stepparent in overcoming the natural parent presumption when the biological father is “in
the picture” and asserts his custodial rights. Waites, 152 So. 3d at 313-14 (¶18). Because
Kaleb is “in the picture,” Roger’s reliance on Pell and J.P.M. is misplaced.8
¶31. Roger also relies on the (rebuttable) presumption that a child born during a marriage
was fathered by the husband, which our Supreme Court has described as follows:
Our law has long presumed a child born during the course of a marriage to
have been fathered by the husband. This idea is traceable at least to Lord
Mansfield, whose rule that children conceived in marriage are products of the
marriage was relaxed only when the husband was beyond the “four seas” of
England. The presumption of legitimacy is one of the strongest known to our
law. In light of the relentless nature of the human libido, cases such as this
abound in the reports. Gradually, the presumption has bowed to realism.
Karenina ex rel. Vronsky v. Presley, 526 So. 2d 518, 523 (Miss. 1988) (citations omitted).
This presumption plays no role whatsoever in this case. Roger and Holly were married less
8
Because Roger is not entitled to custody regardless of whether he is considered in
loco parentis, we need not decide whether he acquired that status based on his commendable
love of and care for Riley prior to Kaleb’s petition to establish paternity and parental rights.
“The term in loco parentis means ‘in the place of a parent.’” Smith, 97 So. 3d at 47 (¶10)
(quoting Farve, 128 So. 2d at 879). Roger would not have been acting “in the place of a
parent” once Kaleb established his paternity and began exercising visitation rights and
fulfilling his support obligations.
16
than three weeks before Riley was born, and Roger admits that he has known from the
beginning that he was not the father. As the Supreme Court recognized, “we would appear
a bit foolish to declare that the husband was the father” when, as in this case, “biology tells
us” that he was not. Id. The presumption is rebutted and carries no weight in such cases.
¶32. Roger also argues that the chancery court “implicitly recognized” that his “custodial
standing” is “at least equal to that of Kaleb” when it entered the November 2011 agreed
order, which provided that Riley’s surname would remain Neely. There is nothing in the
agreed order to support this argument. Rather, the agreed order unequivocally established
Kaleb’s paternal rights. Other than his surname, Roger is not mentioned in the order, much
less is he granted any rights. It is logical that Riley’s last name remained Neely because that
was her mother’s last name, not as an implied grant of rights to Roger.
¶33. Roger next argues that the November 2012 temporary order alternating custody
between him and Kaleb was also an “implicit” recognition that his “custodial standing” was
“at least equal to” Kaleb’s. This argument fails as well. “A temporary [custody] order is just
that, temporary; it does not change the underlying burden of proof . . . .” Baumgart v.
Baumgart, 944 S.W.2d 572, 573 (Mo. Ct. App. 1997); accord Anderson v. Anderson, No. CA
08-1110, 2009 WL 1017480, at *3 (Ark. Ct. App. Apr. 15, 2009) (unpublished op.) (“[A]
temporary [custody] order is just that—temporary by nature.”). The chancellor decides the
issue of permanent custody “de novo” notwithstanding the prior entry of a temporary custody
order. See Blevins v. Bardwell, 784 So. 2d 166, 170 (¶14) (Miss. 2001). The temporary
order did not override the natural parent presumption.
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III. Visitation
¶34. Finally, Roger contends that the chancellor’s failure to grant him reasonable visitation
was manifest error. In his closing remarks from the bench, the chancellor did state that he
felt that Roger was entitled to some form of visitation, but in his final order modifying
custody, only Riley’s maternal grandparents were granted visitation rights. See Miss. Code
Ann. § 93-16-3 (Rev. 2013) (providing for grandparent visitation rights in certain
circumstances). The chancellor’s resolution of this issue was correct. 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 stepchilden 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”). As discussed above, Roger did not overcome the natural parent presumption by clear
and convincing evidence. Therefore, the chancellor did not err by not granting him
visitation.
CONCLUSION
¶35. The chancellor did not err in applying the natural parent presumption in favor of
Kaleb. Nor did he err by finding that Roger failed to rebut the presumption. Roger did not
meet his burden of proving by clear and convincing evidence any of the grounds for rebutting
the presumption, and therefore we cannot say the chancellor’s ruling was error. Roger’s
other assignments of error are without merit. We therefore affirm.
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¶36. THE JUDGMENT OF THE SIMPSON COUNTY CHANCERY COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART
WITHOUT SEPARATE WRITTEN OPINION.
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