IN THE INTEREST OF A MINOR V.D.W. J.S.W., APPELLANT
A.W.R. AND T.J.S., APPELLEES
DATE OF JUDGMENT: 03/21/2012.
COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT. TRIAL JUDGE: HON. JOHNNY LEE WILLIAMS. TRIAL COURT DISPOSITION: AWARDED CUSTODY OF MINOR CHILD TO MOTHER, GRANTED VISITATION TO BOTH NATURAL FATHER AND MOTHER'S EX-HUSBAND, WHO HAD RAISED CHILD AS HIS OWN.
FOR APPELLANT: S. CHRISTOPHER FARRIS.
FOR APPELLEES: ROBERT R. MARSHALL.
BEFORE LEE, C.J., MAXWELL AND FAIR, JJ. 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.
NATURE OF THE CASE: CIVIL - CUSTODY
¶1. In a typical custody case between a natural parent and a third party, the doctrine of in loco parentis cannot be used by the third party to rebut the natural-parent presumption. But this is not a typical custody case.
¶2. Instead, this is a three-way custody action between (1) the natural mother, (2) the mother's ex-husband, who had supported, cared, and treated the child as his own, and (3) the man who turned out to be the child's biological father. And in this " very limited, unique situation," the fact the ex-husband stood in loco parentis by his fatherly actions towards the child does rebut the natural-parent presumption.  Thus, the chancellor erred by not considering the ex-husband on equal footing with his ex-wife and the biological father when determining which of the three should be awarded custody. We reverse the judgment awarding the ex-wife custody, and we remand this case for the chancery court to conduct an Albright analysis  that takes into consideration whether it would be in the child's best interest for the ex-husband to be awarded custody.
Background Facts and Procedural History
I. Divorce and Original Custody Agreement
¶3. Jake and Anne  divorced in 2009. During their five-year marriage, two children were born--Vanessa, born five months after Jake and Anne married, and Brett, born a year and a half later. As part of their custody, support, and property-settlement agreement, both Jake and
Anne received joint custody of the two children, alternating physical custody on a weekly basis.
¶4. But after ten months, both parties were dissatisfied with this arrangement. Anne filed a complaint for support, and Jake countered with a complaint for an emergency change of custody in which he alleged Anne was trying to move out-of-state with the children. The chancellor entered a temporary order ...