OF JUDGMENT: 04/27/2015
COUNTY CHANCERY COURT, HON. MITCHELL M. LUNDY, JR.
ATTORNEY FOR APPELLANTS: TRACY BUSTER WALSH.
ATTORNEYS FOR APPELLEES: A. E. (RUSTY) HARLOW, JR. KATHI
In this custody case, the chancellor found the natural
parents unfit to retain custody of their young daughter.
After considering the child's best interest and
conducting an Albright analysis, the chancellor awarded
joint custody to the child's maternal great-grandparents
and paternal grandmother. The paternal grandmother appealed.
She argued Mississippi Code Section 93-5-24 (Rev. 2013)
prohibits joint-custody awards to third parties.
We assigned this case to the Court of Appeals, and the
appellate court affirmed the chancellor's decision.
Darby v. Combs, 2016 WL 6276610 (Miss. Ct. App. Oct.
25, 2016). The paternal grandmother then petitioned this
Court for certiorari review, which was granted. After review,
we find Section 93-5-24 allows joint-custody awards among
third parties. Thus, the chancellor did not abuse his
discretion, and the Court of Appeals was right in recognizing
as much. We therefore affirm.
Facts and Procedural History
Adriana Rose Darby (Addie) was born to unwed parents on
February 11, 2013. Her mother Crystal Combs was eighteen. Her
father Andrew Darby was twenty. Crystal lived with her
grandparents, Harold and Karron Combs. The Combses had cared
for Crystal since she was three years old, after obtaining
full custody of her by court order. Andrew Darby lived with
his parents, Ross and Monica Darby. He frequently visited
Crystal and Addie at the Combses' home.
Crystal was Addie's primary caregiver following her
birth. But on August 20, 2013, Monica Darby filed a petition
for custody or, alternatively, visitation with Addie. She
alleged Crystal and Andrew had neglected Addie and were
unable to care for her properly. Crystal and Andrew each
answered and requested custody of Addie. Andrew also sought a
filiation order, declaring him Addie's father. Because of
the neglect allegations, the chancellor appointed a guardian
ad litem (GAL). The GAL was ordered to investigate and
prepare a written report with her recommendations.
On February 24, 2014, Monica Darby filed a motion for a
temporary restraining order (TRO). She cited Crystal's
arrest for drug paraphernalia the previous week. The
chancellor granted the TRO. He temporarily awarded full
custody of Addie to Monica and set a preliminary injunction
hearing. Soon after, the Combses filed a motion to intervene,
which was granted. They asked the chancellor to award them
custody of Addie and declare Crystal and Andrew unfit.
At the preliminary injunction hearing on March 18, 2014, the
chancellor found Addie would be irreparably harmed unless
Mrs. Darby continued to have full custody. His order enjoined
Crystal from any contact with her daughter. On April 15,
2014, the chancellor entered an order granting the
Combses' request for visitation with Addie, stipulating
Crystal would have no contact with Addie. The chancellor
later amended the order to give Crystal supervised
On October 2, 2014, and December 18, 2014, the chancellor
heard arguments on Mrs. Darby's custody petition. There
was extensive testimony and evidence about Crystal's and
Andrew's parental fitness. Harold Combs testified that
Andrew had twice attempted suicide at their home by cutting
his arms. Both times the police were summoned. On another
occasion, Andrew was charged with domestic violence and
simple assault. He had thrown a telephone at Crystal while
she was holding Addie. The telephone struck Crystal in the
head, and she was taken to the hospital for stitches.
Monica Darby testified that on August 6, 2014, Andrew smacked
Ross Darby in the head with a skillet during an argument.
Ross had to have the wound stapled, and Andrew faced criminal
charges for the incident. There was also testimony about
Andrew's history of drug and alcohol abuse.
Andrew's history of mental illness was also highlighted,
including bipolar disorder and schizophrenia. Andrew had
received mental-health treatment on several occasions. At one
point, he was committed to the state hospital in Tupelo.
After his discharge, Andrew moved to Jonesboro, Arkansas, to
live with his grandparents and attend college at Arkansas
State University. Monica testified that Andrew receives
outpatient treatment and is doing well.
Crystal's fitness was similarly at issue. She admitted
she could not provide a stable home for Addie at that time.
Crystal testified about her own drug use. She explained that
she and Andrew had used drugs and alcohol with Mr. Darby,
without Mrs. Darby's knowledge. Karron Combs testified
that Crystal was arrested for possessing drug paraphernalia
in February 2014. This was when she and her husband first
discovered Crystal was using drugs. Karron viewed her
granddaughter as an accomplished liar who had fooled them
about her drug use. Crystal admitted using drugs at the
Combses' home. She claimed they were unaware because she
had concealed her drug use from them. According to Karron,
Crystal later completed a drug rehabilitation program. Since
then, her attitude and behavior had improved greatly.
The chancellor commented on the "very disturbing"
nature of the case. He said he faced a scenario where
"both parents are admittedly unfit to have
custody." Citing this dilemma, he proceeded under
Mississippi Code Section 93-5-24(1)(e) and arranged third-
party custody between Monica and the Combses. Though he found
this arrangement was in Addie's best interest, his
Albright analysis recognized that Monica and the
Combses "le[ft] a lot to be desired."
Both sides believed they were best suited for custody of
Addie. Karron testified she and Harold Combs were fully able
to care for her. Harold has no significant health problems
and is a computer programmer with flexible hours. And Karron
is a retired teacher. While she has some health problems, she
said her conditions are managed and would not interfere with
her ability to care for Addie. Both Harold and Karron agreed
that Crystal was unfit for child custody and that any
visitation with Addie should be supervised.
Monica testified that she was Addie's primary caregiver
since the TRO was granted in March 2014. She works for a
utility company during the week. But her hours are flexible,
and Addie was in daycare while she worked. In addition to
Addie, Monica cares for three other children-ages fifteen,
thirteen, and nine. Each is thriving in school and
extracurricular activities. Monica has a health problem she
manages with medication, which she insisted does not affect
her ability to care for Addie or the other children.
The GAL report was admitted in evidence. She also testified
at the hearing. The GAL recommended Monica be awarded custody
of Addie with the Combses receiving visitation. The GAL found
that neither Andrew nor Crystal could provide a safe and
stable environment for Addie. She recommended any visitation
granted to them be supervised. She believed the Combses'
failure to recognize and address Crystal's destructive
behavior had endangered Addie. The GAL also faulted the
Combses for allowing the toxic relationship between Crystal
and Andrew to continue in their home. But she still felt
Addie's best interests required the Combses'
continued involvement in her life.
In his January 23, 2015 order, the chancellor found it in
Addie's best interest that Monica and the Combses share
joint physical custody. He fashioned an arrangement in which
Monica had custody of Addie while Andrew was away at college.
And the Combses would have custody during alternating
weekends, holidays, and the summer months. The chancellor
also set a visitation schedule. He ordered that any
visitation by Andrew or ...