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In re Waites

Supreme Court of Mississippi, En Banc

December 11, 2014

IN THE INTEREST OF A MINOR VICTORIA DENISE WAITES:
v.
AMY MARIE WAITES RITCHIE AND TIMOTHY J. SANFORD JEFFREY SCOTT WAITES

DATE OF JUDGMENT: 03/11/2012.

COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT. TRIAL JUDGE: HON. JOHNNY LEE WILLIAMS. TRIAL COURT ATTORNEYS: WILLIAM L. PEEBLES, ROBERT R. MARSHALL, GEORGE H. GUNTER.

THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS REINSTATED AND AFFIRMED.

FOR APPELLANT: S. CHRISTOPHER FARRIS.

FOR APPELLEES: GEORGE H. GUNTER, ROBERT R. MARSHALL.

PIERCE, JUSTICE, FOR THE COURT. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR.

OPINION

NATURE OF THE CASE: CIVIL - CUSTODY

Page 307

PIERCE, JUSTICE

¶1. This appeal stems from a petition made by Amy Waites Ritchie (" Amy" ) to modify a custody agreement created by Jeffrey Scott Waites (" Scott" ) and herself following their divorce two years earlier.[1] Amy petitioned for modification, seeking to move with her two children to Iowa, as Amy planned to remarry there. Although Amy and Scott had agreed to joint physical and legal custody, Amy's proposed move to Iowa would make the provisions of the agreement unworkable. After initiating the petition, Amy contacted T.J. Sanford (" T.J." ) to let him know she believed him to be her eldest child's biological father; subsequently, a DNA test proved T.J.'s paternity and he joined the matter seeking custody.

¶2. After excluding Scott from consideration under Albright[2] as a non-natural parent, the presiding chancellor awarded full physical and legal custody to Amy rather than T.J. The chancellor allowed visitation for both Scott and T.J., with respect to the eldest child. Scott appealed the court's order, and the Court of Appeals reversed. Finding Scott's fatherly actions did rebut the natural-parent presumption afforded to Amy and T.J., the Court of Appeals found Scott should have been considered on equal footing with the natural parents. The Court of Appeals remanded this case to the chancery court with instructions to consider Scott under Albright.[3] Amy and T.J. filed a writ of certiorari, which this Court granted. We find the chancellor properly excluded Scott from consideration under Albright. Accordingly, we reverse the Court of Appeals' decision and reinstate and affirm the judgment of the chancery court.

FACTS AND PROCEDURAL HISTORY

¶3. In 2004, seventeen-year-old Amy began dating twenty-one-year-old Scott. But, during this period, Amy also had a brief relationship with T.J. In July 2004, Amy and Scott were married, and on December

Page 308

16, 2004, Amy gave birth to Victoria. Initially, Scott believed Victoria was his child.[4] Thereafter, Amy and Scott had a child together, Brackston.

¶4. In March 2007, T.J.'s mother contacted Amy, informed her that T.J. was about to be deployed with the military, and questioned whether T.J. was Victoria's father. Amy denied that Victoria was T.J.'s daughter, but Scott overheard the conversation. On March 16, 2007, Scott had a DNA test performed which confirmed that he was not Victoria's biological father. Nevertheless, Amy and Scott decided not to disclose Victoria's paternity, and that Scott would continue to raise her as his own child.

¶5. On December 15, 2009, the chancery court entered an Agreed Judgment of Divorce as to Amy and Scott. The divorce judgment provided, in pertinent part, that " there were two minor children born unto the parties," Victoria and Brackston, and that " [t]he minor children have been in the care, control and custody of" Amy and Scott. The parties were granted joint legal and physical custody of the minor children, with custodial time divided on a week-to-week basis. Both Amy and Scott certified they were Victoria and Brackston's biological parents, although both Amy and Scott knew this to be untrue, as the March 2007 DNA had test confirmed Scott was not Victoria's father.

¶6. Following the divorce, Amy married a man known as " Mr. Ritchie." The marriage lasted a few months, from May 2010 to December 2010. After divorcing Ritchie, Amy began a relationship with Nick Rhods and planned to move to Iowa with both children, where Rhods lived, after marrying him. On January 17, 2011, Amy contacted T.J. regarding the possibility that he was Victoria's father. On January 28, 2011, Amy sued T.J. for support. After a DNA test revealed a 99.999% probability that T.J. was Victoria's biological father, T.J. filed a Motion for Custody, Visitation and Paternity with respect to Victoria, on March 3, 2011. Then, in November of 2011, Amy initiated a Petition for Modification of the 2009 custody agreement made by Scott and herself, so that she could move the children out of state. Scott opposed.

¶7. On March 23, 2012, the chancery court entered its Findings of Fact, Conclusions of Law and Final Judgment. According to the chancery court, Amy, Scott, and T.J. " all seek to have primary physical custody of [Victoria]." The chancery court found, in pertinent part, that:

[g]iven the testimony presented at trial, [T.J.] had to have known that there was a possibility that he may have been the father of [Victoria], especially when he heard [Amy] was pregnant, and calculated the months in his mind. The [c]ourt also recognizes that [T.J.] did little to nothing to inquire or otherwise try to involve himself in the life of a child that could have been his. However, the [c]ourt does not find that [T.J.'s] conduct met the criteria for abandonment as set out in Sellers [v. Sellers, 638 So.2d 481 (Miss. 1994)]. After weighing the rest of the factors set out in Sellers, it would seem that [T.J.] has not engaged in conduct that was overly immoral so as ...

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