Before Sullivan, P.j., McRAE And Smith, JJ.
The opinion of the court was delivered by: McRAE, Justice, For The Court:
DATE OF JUDGMENT: 04/21/97
TRIAL JUDGE: HON. PAT H. WATTS, JR.
COURT FROM WHICH APPEALED: JACKSON COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
¶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.
¶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.
¶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 ...