Logan v. Logan

• Decision Date: 31 December 1998
• Docket Number: No. 97-CA-00808-SCT.,97-CA-00808-SCT.
• Parties: Gary K. LOGAN v. Shirley Ann LOGAN.
• Court: Mississippi Supreme Court

730 So.2d 1124

Gary K. LOGAN v. Shirley Ann LOGAN.

No. 97-CA-00808-SCT.

Supreme Court of Mississippi.

December 31, 1998.

Earl L. Denham, Ocean Springs, Attorney for Appellant.

Brent M. Bickham, Pascagoula, Attorney for Appellee.

Before SULLIVAN, P.J., and McRAE and SMITH, JJ.

McRAE, Justice, for the Court:

¶ 1. In this appeal from the Jackson County Chancery Court, we find that the chancellor erred in determining that he did not have the power to make a custody award to a stepparent and thus making no custody decision whatsoever after expressly finding the natural parent unfit. Instead, where it is in the best interests of the child, temporary custody/guardianship should have been given to the stepfather, until such time as the biological father could be located and given proper notice. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

I.

¶ 2. Gary Logan and Shirley Ann Logan were married on December 21, 1990. Upon their marriage, Gary assumed support of Terry, Shirley's son born during her previous marriage to Robert Cook. Terry, born February 14, 1990, is now eight years old. Cook, the child's biological father, is not a party to this proceeding, and according to the testimony of both Gary and Shirley, his whereabouts are unknown. It is alleged that Cook had not provided support for the child since April, 1990. Nevertheless, his parental rights have never been judicially terminated. The Logans are also parents of a son, Mark, who was born on July 15, 1992.

¶ 3. Gary and Shirley first separated on December 26, 1994. They finally parted ways on August 3, 1995. On October 10, 1995, Gary filed for divorce on the grounds of adultery, habitual cruel and unusual treatment, and irreconcilable differences. Shirley counterclaimed, also seeking a divorce on the grounds of habitual cruel and inhuman treatment and/or irreconcilable differences. A temporary order was entered in October, 1995.

¶ 4. The chancellor granted Gary's petition for divorce on April 21, 1997. After applying the Albright factors to the children's situation, the chancellor awarded primary custody of Mark to Gary, finding "that the Wife has demonstrated moral unfitness as the mother of the child." The chancellor expressed concerns about Shirley's behavior, which, he found, demonstrated her unwillingness to care for the children. He particularly noted her frequent trips away from home without checking on them, her tendency to go to clubs and bars and to come home at late hours, and the fact that men other than Gary came to the apartment during the night while the children were there and Gary was not. He acknowledged that Gary provided a "secure and reliable family relationship," while Shirley's lifestyle "created a very unsettling influence."

¶ 5. The chancellor, however, decided not to determine custody of Terry. He specifically recognized the relationship between Gary and his stepson, noting that Gary had provided him with food, clothing, shelter and medical care since he was an infant, and "acted as a loving and caring parent to Terry." Indeed, the record indicates that Terry regards Gary as his father and calls him "Daddy." Further, Shirley testified also that neither she nor Terry had any contact with the child's biological father for more than five years. Nonetheless, the chancellor held that because the biological father was not made a party to the suit and was not before the court to testify in reference to Terry's care and custody, no finding could be made as to whether the presumption of the fitness of the natural parent could be overcome.

¶ 6. Gary filed a motion to reconsider, seeking custody of Terry. Shirley filed a counter-motion to reconsider, claiming, among other things, that the chancellor erred in separating Mark and Terry. The chancellor overruled both motions.

II.

¶ 7. Gary first asserts that the chancellor erred in determining that he did not have the power to award custody of Terry to his stepfather. As he asserts, Miss. Code Ann. § 93-5-23 (1994) authorizes the chancellor to provide for the care and custody of stepchildren. Section 93-5-23 gives the court discretion to, "as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage ..." This Court has not addressed the issue of whether a chancellor may grant custody of a stepchild to a stepparent when one natural parent was not a party to the proceeding. However, we have recognized that while a chancellor may award custody to a third party when the parents are unfit, "(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.)" Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994)(quoting Moody v. Moody, 211 So.2d 842, 844 (Miss.1968)).

The basis for this rule, as we have said many times, is that human experience has demonstrated that as a general rule parental love and solicitude for the child's welfare are the best guarantee that it will be properly cared for and trained for that station in life for which it will likely be best fitted. The presumption in all cases is that the child's parents will love it most and care for it better than anyone else and it is in the best interest of the child to leave it in the custody of a parent. In order to overcome this presumption, there must be a clear showing that the parent is unfit by reason of immoral conduct, abandonment or other circumstances which clearly indicate that the best interest of the child will be served in the custody of another.

Id. at 485-86 (quoting Moody v. Moody, 211 So.2d 842, 844 (Miss.1968)). The natural parent is entitled to custody, as against a third party, unless one of the following conditions is clearly proven: (1) the parent abandoned the children; (2) the parent's immoral conduct adversely affects the children's interests; or (3) the parent is unfit to have custody. Carter v. Taylor, 611 So.2d 874, 876 (Miss.1992); Bubac v. Boston, 600 So.2d 951, 956 (Miss.1992).

¶ 8. Additionally, we specifically have recognized the doctrine of in loco parentis. We have defined a person acting in loco parentis as one who has assumed the status and obligations of a parent without a formal adoption. Worley v. Jackson, 595 So.2d 853, 855 (Miss.1992). Thus, in W.R. Fairchild Constr. Co. v. Owens, 224 So.2d 571, 575 (Miss.1969), we stated that "[a]ny person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own child is said to stand (in loco parentis.)" Id. "[I]f it develops that the mother and father of a child are unsuitable to have custody, it is the duty and responsibility of the court to find a suitable home and suitable adults to stand in loco parentis." Carter, 611 So.2d at 876 (citing Morris v. Morris, 245 So.2d 22, 24 (Miss.1971)). See also Miss.Code Ann. § 93-13-1(1994)(stating that even though a child's father and mother are its natural guardians, if those individuals are unfit to discharge the duties of guardianship, then the chancery court may appoint a suitable person). Similarly, we have recognized the role of courts in general as parens patriae in child custody cases. Owens ex rel. Mosley v. Huffman, 481 So.2d 231, 238 (Miss. 1985).

¶ 9. Where a stepfather, as an incident to a new marriage, has agreed to support the children of a previous marriage, or where he does so over a period of time and the mother and the children in good faith rely to their detriment on that support, the best interests of the children require entry of a child support decree against the stepfather. Tedford v. Dempsey, 437 So.2d 410, 421 n. 10 (Miss.1983). Thus, it follows that if a stepparent can be required to pay child support for a stepchild based on his support of the stepchild over a period of time, where it is in the best interests of the child, he should be allowed to have custody of the stepchild based on...