White v. Thompson

• Decision Date: 17 October 1990
• Docket Number: No. 89-CA-0061,89-CA-0061
• Citation: 569 So.2d 1181
• Parties: Andrean Len Cook WHITE v. Elva M. THOMPSON, Edward J. Thompson and Lance David White.
• Court: Mississippi Supreme Court

Page 1181

569 So.2d 1181

Andrean Len Cook WHITE v. Elva M. THOMPSON, Edward J. Thompson and Lance David White.

No. 89-CA-0061.

Supreme Court of Mississippi.

Oct. 17, 1990.

Rehearing Denied Nov. 28, 1990.

Elizabeth L. Gilchrist, Jackson, for appellant.

John Gordon Roach, Jr., Roach & McMillan, McComb, for appellees.

Before DAN M. LEE, P.J., and ANDERSON and PITTMAN, JJ.

PITTMAN, Justice, for the Court:

Lance David White, his mother, Elva Thompson, and his stepfather, Edward Thompson, filed suit in Pike County Chancery Court, alleging that David's wife Andrean, who had custody of the couple's two children, was an unfit parent, and asking the court to place the children in the custody of the Thompsons. The court found in favor of the Thompsons and granted them custody of the children. The court also placed certain restrictions on Andrean's visitation privileges. Andrean White appeals from the judgment of the chancery court. Finding no error, we affirm.

FACTS

David and Andrean (An) White were married on December 24, 1983. They have two children: David Keith, almost four years old at the time of the hearing in this cause; and Joseph Lee, seventeen months at that time. The Whites' marriage has been an unstable one, including frequent moves, separations, drinking problems (David), and infidelity (both parties). After time spent in Texas and California the Whites eventually returned to McComb, Mississippi. They reconciled in October 1987, and moved into a trailer procured by An's father and placed on property owned by Elva and Ed Thompson, mother and stepfather of David White. In December 1987, while working at Servicemaster Professional Cleaning, An met Phyllis Hasberger, a co-worker at Servicemaster. Phyllis and her son Joshua visited with the Whites, and eventually moved into their trailer with them. About three weeks after Phyllis and Joshua moved in, An and David's marriage had deteriorated to the point where An asked David to leave, and he did. Neither has filed any kind of divorce proceeding. Two to three weeks after David moved out, An and Phyllis began having sexual relations. With both working, caring for the children proved to be difficult, and An attempted to work out something at Servicemaster so that only one of them would have to work. Eventually, both were terminated. In April 1988, An found work as a cashier for Charter Marketing, a convenience store. An quit this job after approximately three months, blaming her employer and the lawsuit at bar.

On May 25, 1988, David White and the Thompsons filed a complaint in the Pike County Chancery Court against An White, alleging that An had used marijuana in the presence of her children, had neglected the children's health and well-being, and had conducted herself in an immoral manner with Phyllis Hasberger so that An had become unfit to keep custody of her children. The Thompsons asked that custody of Keith and Joseph be given to them and that An White be ordered to pay child support to them. The Thompsons also alleged that An planned to take the children to Nebraska or to some other out-of-state destination, and asked the chancery court for a temporary restraining order to prevent this.

In late May, shortly after the complaint was filed, David White came by the trailer. He suggested that he take the children out to eat and then keep them overnight. An agreed. The next day David's girlfriend came by the trailer to pick up some extra clothes for the children, which An gave to her. David did not return the children to An and An did not know of their whereabouts for about a week. David instead delivered the children to the Thompsons at his mother's request. Shortly after this An answered the complaint, denied the allegations, and counterclaimed, alleging that the Thompsons had taken her children from her without her consent, and asked that the children be returned and that David White be ordered to pay child support. Subsequently An and Phyllis moved out of the trailer.

The hearing in this cause was held on June 29 and August 11, 1988. At the time of the hearing An White had no job or assets. She and Phyllis were living with Phyllis's uncle near Wesson, Mississippi. She admitted that she and Phyllis had used marijuana while the children were at the trailer, either outside or in their room. She also testified that she sometimes slept until 11 a.m., and the children would already be outside, unsupervised, by that time. An admitted to two affairs during her marriage, the most recent of which she had broken off shortly before she had met Phyllis. There was conflicting testimony about the children being outdoors during cold weather with inadequate clothing, about them being sick as a result, and about them going hungry. An testified that she thought her relationship with Phyllis was a good one, that it wasn't harmful to her children, and she didn't feel that she had to break it off because it was repugnant to her in-laws. According to An, the living conditions at the trailer were a lot better than when David had lived there, and there had never been any complaints from anyone about how she was raising her children until she began her relationship with Phyllis. She also claimed, with corroboration from witnesses, that the behavior of her children had gotten worse during their stay with the Thompsons.

Edward and Elva Thompson testified that they loved their grandchildren and were able to provide a stable home for them. The Thompsons felt that the childrens' health and behavior had improved during their stay with them. They agreed that David White should not have custody due to his financial situation and his drinking problem.

The chancellor found that An White was unfit, morally and otherwise, to have custody of her children. The court vested custody in the Thompsons and ordered that An White should pay $150.00/month child support to the Thompsons beginning thirty days after she obtained employment. The court provided for visitation for An White, but ordered that the visitation be held outside the presence of Phyllis Hasberger, and also found that An White should not be allowed to take the children out of the state without the prior written consent of the Thompsons. David White was also found to be unfit for custody, and was ordered to pay support of $150.00/month.

I.

An White argues that the chancellor found her unfit solely because of her lesbian relationship, and that other factors relied on by the chancellor were never determined to have had any kind of adverse effect on her children. The chancellor found that "[t]here's substantial evidence of neglect in the record" and that An White was "unfit, morally and otherwise to have custody at this time of these two children of such tender years." (emphasis added). The chancellor relied on Mrs. White's financial situation, her past adulterous behavior, her marijuana use, and the lesbian relationship. He did not mention the allegations concerning the children's health, their going hungry, and lack of parental supervision.

This Court has recognized that "the natural parents of children have the natural right to the nurture, care and custody of their children." Simpson v. Rast, 258 So.2d 233, 236 (Miss.1972). In a custody dispute between a natural parent and third parties, such as grandparents,

it is presumed that the best interests of the child will be preserved by it remaining with its parents or parent. In order to overcome this presumption there must be a clear showing that the parent has (1) abandoned the child, or (2) the conduct of the parent is so immoral [as] to be detrimental to the child, or (3) the parent is unfit mentally or otherwise to have the custody of his or her child.

Rodgers v. Rodgers, 274 So.2d 671, 673 (Miss.1973); see also Milam v. Milam, 509 So.2d 864, 866 (Miss.1987) (citing Rodgers ). Put another way,

[t]he paternal grandparents have no right to the custody of their grandson, as against the mother, until they have charged and proved that she has forfeited her natural right to the custody of her minor son by abandonment or by immoral conduct, or other circumstances which clearly indicate that the best interest of the child will be served in the custody of another.

Pace v. Barrett, 205 So.2d 647, 649 (Miss.1968). "Children are not to be taken from the parents and given to some other person simply because the third person is more able financially to give the child a greater advantage in life." Simpson, 258 So.2d at 236; see also Robinson v. Robinson, 481 So.2d 855 (Miss.1986) (fact that mother was participant in federal and state social service programs did not disqualify her from having custody). That a custodial parent may wish to take his or her child out of the state is insufficient reason to deprive the parent of custody, absent the determinations discussed above. Turner v. Turner, 331 So.2d 903, 905-906 (Miss.1976).

An White argues that her conduct was not shown to have had any detrimental effect on her children, and, relying on Carr v. Carr, 480 So.2d 1120 (Miss.1985), and the authority cited earlier, maintains that such detrimental effect cannot be presumed but must be shown. Carr, which involved a custody fight incident to a divorce action, is similar to the case at bar in several respects. Despite finding that both parties were fit and suitable parents to have custody, the chancellor awarded the minor children to the father "because of the long standing continued adulterous relationship of Mrs. Carr." Carr, 480 So.2d at 1121. This Court stated in Carr:

[The] moral fitness of a parent encompasses the charge of adultery. But moral fitness is but one factor to be considered, and it is a factor worthy of weight in determining the best interest of the child. Adultery of a parent may be an unwholesome influence and an impairment to the child's best interest, but on the other hand, may have no effect. The trial court should consider this factor along with all others when...