OF JUDGMENT: 04/16/2018
COUNTY CHANCERY COURT ATTORNEY FOR HON. PERCY L. LYNCHARD,
APPELLANT: JERRY WESLEY HISAW
ATTORNEY FOR APPELLEES: GORDON C. SHAW, JR.
April Garner appeals the chancellor's custody
modification awarding custody of her minor child to the
child's uncle, the award of grandparent visitation to the
child's step-grandfather, a finding of contempt, and the
assessment of various fees and costs. Because the chancellor
properly modified custody and found April in contempt but
lacked the authority to award grandparent visitation to a
step-grandparent, we affirm in part and reverse and render in
part. We reverse and remand in part because the chancellor
erred, in part, in the assessment of fees and costs.
AND PROCEDURAL HISTORY
Andrew was born in August 2009 to April
Garner. On November 8, 2010, when Andrew was
fifteen months old, April voluntarily relinquished physical
custody of Andrew to her brother Jason. At that time, Jason
was dating and living with David Smith. Jason and David later
married on September 20, 2012.
April was granted supervised visitation with Andrew, by
agreement, on October 1, 2012. In January 2013, Andrew began
treatment with Dr. Peter Zinkus, a clinical psychologist
specializing in behavioral- and emotional-development
disorders in children. Dr. Zinkus diagnosed Andrew with
separation-anxiety disorder due to the "alternating
On December 20, 2013, by agreed order, April regained legal
and physical custody of Andrew. The order stated that the
parties "recognize[d] that in order for [Andrew] to
successfully handle his separation anxiety he must maintain a
relationship with David and David must have a secure and
regular place in the child's life." The agreed order
provided David extensive visitation, which April acknowledged
was "similar to what a biological parent would
At some point in 2013, April began a relationship with Pablo
Garcia. Their daughter Allison was born on November 5, 2014.
In November 2014, April withheld visitation with Andrew from
David. As a result, David moved to enforce the December 20,
2013 agreed order. In March 2015, the chancellor upheld the
agreed order and visitation continued between David and
In September 2015, Jason died from complications of
On September 19, 2016, David filed an "amended petition
for emergency custody and to cite [April] for
contempt." In the petition, David alleged that based
on various events and admissions, April was "unfit to
care for [Andrew]." He further alleged that April
unilaterally had discontinued Andrew's counseling
sessions with Dr. Zinkus, in violation of the December 20,
2013 agreed order. April's mother and stepfather, Judi
Garner and Ron Fox, filed a similar petition for custody and
joined David's petition. Shortly thereafter, on September
21, 2016, April and Pablo were married.
The chancellor issued a temporary restraining order on
September 22, 2016, and granted temporary custody of Andrew
to David. April later filed an answer to David, Judi, and
Ron's petitions. She further moved for a modification of
the December 20, 2013 agreed order and sought to terminate
David's visitation rights with Andrew.
Based on the allegations asserted in David's amended
petition, the chancellor appointed a guardian ad litem (GAL)
on September 29, 2016, to investigate the allegations and to
make a recommendation to the court. The chancellor also
ordered the parties to submit to a drug test.
Based on the GAL's recommendation, the chancellor entered
a temporary order that allowed alternate weekly visitation
between April and David, with grandparent visitation to Judi
and Ron during the weeks Andrew was with David. On October
13, 2016, April tested positive for cocaine. The GAL later
moved for supervision of April's visitation based on her
failed drug test and the GAL's belief that April was
coaching Andrew. April's visitation with Andrew was
supervised until February 3, 2017.
In the fall of 2017, April reported or assisted in reporting
two separate allegations of child sexual abuse against David,
one on September 11, 2017, and the other on November 14,
2017. Both reports involved similar allegations of bathing,
specifically, that David inappropriately touched Andrew while
giving him a bath. As a result, Andrew was placed in foster
care pending further investigation of the abuse allegations.
Both allegations were separately investigated by the
Mississippi Department of Child Protection Services (CPS).
The November investigation included a forensic interview with
Andrew. At the completion of the investigations, both reports
of sexual abuse were found to be unsubstantiated.
Specifically, CPS concluded that "there were no
inappropriate actions on behalf of David."
A trial in this matter was held on February 22 and 23, 2018.
On April 4, 2018, the chancellor issued an opinion in which
he found that April had entered into a course of conduct
since the entry of the December 20, 2013 agreed order that
constituted a material change in circumstances adverse to
Andrew's best interests and that made April
"mentally and morally" unfit to have custody of
Andrew. Following an Albright analysis,
chancellor awarded "full care, custody[, ] and
control" of Andrew to David and visitation to April. The
chancellor further awarded grandparent visitation to Judi and
Additionally, the chancellor found that April was in contempt
of the December 20, 2013 agreed order due to her unilateral
withdrawal of Andrew from Dr. Zinkus's care. The
chancellor assessed attorneys' fees and costs against
April and denied April's request for attorneys' fees.
An order reflecting the chancellor's rulings was filed
April 16, 2018. An amended final order was filed July 6,
2018, that specifically addressed the amount of fees and
costs assessed against April.
April moved for reconsideration, which was denied. April now
appeals and argues the chancellor erred by: (1) awarding
third-party custody to David, (2) awarding grandparent
visitation to Ron, (3) holding her in contempt, (4) assessing
fees and costs against her, and (5) failing to award her
attorneys' fees. Judi and Ron do not contest the award of
custody to David. Instead, they join David's arguments on
"The standard of review in child custody cases is quite
limited." Johnson v. Gray, 859 So.2d 1006, 1012
(Miss. 2003). "A chancellor must be manifestly wrong,
clearly erroneous, or apply an erroneous legal standard in
order for this Court to reverse." Id. (citing
Mabus v. Mabus, 847 So.2d 815, 818 (Miss. 2003)).
"[F]indings of fact made by a chancellor may not be set
aside or disturbed upon appeal if they are supported by
substantial, credible evidence." Id. (internal
quotation marks omitted) (quoting Marascalco v.
Marascalco, 445 So.2d 1380, 1382 (Miss. 1984)).
Whether the chancellor erred by awarding third-party
custody to David.
April argues the chancellor erroneously modified and awarded
third-party custody to David. "In order for child
custody to be modified, a noncustodial party must prove (1)
there has been a substantial change in the circumstances
affecting the child; (2) the change adversely affects the
child's welfare; and (3) a change in custody is in the
best interest of the child." Id. (citing
Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.
1997)). "'Above all, in "modification cases, as
in original awards of custody, we never depart from our
polestar consideration: the best interest and welfare of the
child."'" Riley v. Doerner, 677 So.2d
740, 744 (Miss. 1996) (quoting Ash v. Ash, 622 So.2d
1264, 1266 (Miss. 1993)).
Additionally, because this case involves a custody dispute
between a natural parent and a third party, it is important
to remember the well-settled presumption regarding the
natural-parent. "The law recognizes that parents are the
natural guardians of their children, and 'it is presumed
that it is in the best interest of a child to remain with the
natural parent as opposed to a third party.'"
Davis v. Vaughn, 126 So.3d 33, 37 (Miss. 2013)
(quoting In re Dissolution of Marriage of
Leverock and Hamby, 23 So.3d 424, 429 (Miss. 2009)).
However, the natural-parent presumption may be rebutted by
clear and convincing evidence that: "(1) the parent has
abandoned the child; (2) the parent has deserted the child;
(3) the parent's conduct is so immoral as to be
detrimental to the child; or (4) the parent is unfit,
mentally or otherwise, to have custody." Id.
(internal quotation marks omitted) (quoting Smith v.
Smith, 97 So.3d 43, 46 (Miss. 2012)). "If the
natural-parent presumption is successfully rebutted, the
court may then proceed to determine whether an award of
custody to the challenging party will serve the child's
best interests." Id. (citing Smith, 97
So.3d at 46). In other words, "[i]n a custody case
involving a natural parent and third party, the court must
first determine whether through abandonment, desertion, or
other acts demonstrating unfitness to raise a child . . .,
the natural parent has relinquished his [or her] right to
claim the benefit of the natural-parent presumption."
Leverock, 23 So.3d at 431. "If the court finds
one of these factors has been proven, then the presumption
vanishes, and the court must go further to determine custody
based on the best interests of the child through an
on-the-record analysis of the Albright
factors." Id. (footnote omitted) (citing In
re Custody of M.A.G., 859 So.2d 1001, 1004 (Miss.
Thus, the first issue this Court must consider is whether
April relinquished her right to claim the benefit of the
natural-parent presumption. A. Natural-Parent
The chancellor found that the following conduct by April was
detrimental to Andrew's best interests:
1. Addiction to illegal drugs and alcohol;
2. Placing the child in a home fraught with acts of domestic
violence and disturbance as a result of her relationship with
her now husband, Pablo Garcia, both during this marriage and
particularly prior thereto when they resided together without
the benefit of marriage;
3. Transient moving of the child from school to school on at
least three occasions over [a] three[-]year period of time
resulting in the child's progress being underdeveloped
based upon his age and grade in school presently [sic];
4. Refusing . . . [to] seek further medical and psychological
help for her diagnosis of depression and bipolar disorder
resulting in her aggressive, paranoid[, ] and bizarre
behavior at times;
5. Cavorting with a known illegal immigrant with full
knowledge of his status . . .;
6. Refusal to seek permanent employment though she readily
admits she is full[y] capable of doing so, preferring instead
to live below the poverty level as indicated [i]n her
[Mississippi Uniform Chancery Court Rule] 8.05 financial
statement filed as evidence herein; [and]
7. Conduct that evinces a callous regard for the mental well
being of the child by refusing to participate in counseling
with the minor child and withdrawing the child from the care
of his normal counselor, Dr. Peter Zinkus, for no apparent or
explained reason, resulting in a setback of his progress in
dealing with a separation anxiety disorder as per the
testimony of Dr. Zinkus[.]
April asserts the chancellor's "finding of unfitness
was improper." We disagree. For the sake of brevity, we
separately address only those categories of conduct that are
the most applicable to the issues in this case.
April's Addiction to Drugs and Alcohol
April claims "there [is] no evidence that [she]
currently has a drug problem." While April denies a
current drug addiction, she acknowledges a drug
problem before and shortly after this action was filed in
September 2016. Indeed, April tested positive for cocaine in
Additionally, the record shows that April has a history of
alcohol abuse. At trial, multiple witnesses testified
regarding April's alcohol use and various incidences of
intoxication. The trial testimony indicates that April was
intoxicated at Judi's birthday party in June 2016 and
again at Andrew's birthday party in August 2016.
April's oldest son testified that April was
"belligerently drunk" at Andrew's birthday
party, which made Andrew "very upset." He further
testified that his relationship with his mother was
"spotty" due to her "drinking
Moreover, Andrew advised the GAL that he sees April drink,
that she drinks all the time, and that she is
"crazy" when she drinks. Andrew stated that April
refers to alcohol as her "medicine" and "apple
juice." The GAL's report notes that April took money
out of Andrew's piggy bank in order to purchase beer.
Although April briefly participated in a drug- and
alcohol-treatment program through her church, the program
ended in December 2017 and is no longer available. April did
not seek treatment from another facility and is not currently
in treatment for drugs and/or alcohol, despite stating,
"once an addict, always an addict." Instead, April
asserts that she does not need treatment for her drug and
alcohol addictions because she is cured. Specifically, April
asserts that "God has healed [her] from all of [her
Yet, by her own admission, April continued to consume alcohol
until September 2017, just five months before trial.
Additionally, April was prescribed narcotics and opiates,
including Demerol and Hydrocodone, for an eye injury in June
2017. While April was sober and drug free
throughout the course of trial, the trial testimony indicates
that April has a repeated pattern of sobriety, followed by
In Sellers v. Sellers, 638 So.2d 481, 487 (Miss.
1994), a case on which April relies, this Court found that
the chancellor erroneously awarded custody of the minor child
to her maternal aunt rather than her father. In
Sellers, "[t]he only factor weighing against
[the father] was his history of marijuana use."
Id. at 486. The Court noted that although the father
had a history of marijuana use, he "had not used
marijuana in over a year . . . ." Id. at
486-87. The father testified that after he was refused
custody of his children, "he completely stopped using
marijuana." Id. at 487.
Here, unlike in Sellers, no evidence was presented
that April has "overcome [her] problem with [drugs and
alcohol]." Id. at 487. While the record shows
April passed all drug tests after October 2016, she
admittedly took prescription narcotics and opiates in 2017.
She further admitted to continued alcohol use just before
trial. April voluntarily relinquished custody of Andrew when
he was fifteen months old due to her drug and alcohol
problems. Yet the record reflects that even after she
regained custody of Andrew in 2013, April continued to use
drugs and to consume alcohol. In fact, April tested positive
for cocaine and admittedly consumed alcohol even after David
petitioned for custody. Thus, unlike the parent in
Sellers, it does not appear that the potential loss
of custody, for the second time, is enough to deter
April's drug and alcohol use, especially considering her
lack of treatment. Additionally, unlike in Sellers,
many factors, not just her history of drug and alcohol use,
weigh against April.
Domestic-Violence Issues Between April and
April contends the chancellor's consideration of domestic
violence was in error. We disagree.
The record reflects multiple incidences of domestic violence
throughout the relationship. For instance, in January 2016,
April and Pablo got into an altercation at a bar. After
leaving the bar, Pablo rammed his truck into the back of
April's vehicle, then backed up and rammed the vehicle
again. In February 2016, April locked Pablo out of the house
following an altercation. Pablo broke a window in order to
get back into the house. In June 2016, April, as well as
Andrew and Allison, stayed at David's house due to
"issues with Pablo" and "issues with
alcohol." April filed a protective order against Pablo
in June 2016, but she withdrew the order based on allegations
that Pablo had tried to kill her.
April acknowledged that, during 2016, the police were called
to her house "for disturbances between [her] and
Pablo." Despite these domestic-violence issues, April
married Pablo on September 21, 2016, just days after David
filed his petition for custody.
April admits that her relationship with Pablo was
"volatile" at times but only "before [they]
were married." Yet the record shows that the volatile
behavior continued after their marriage. In 2017, while
April, Pablo, Andrew, and Allison were temporarily living
with Pablo's brother, the police were called to the house
based on a "disturbance" between April and Pablo.
Additionally, in June 2017, April was unable to meet David to
exchange visitation due to an eye injury. At first, April
claimed she had fallen and injured her eye. However, during
her deposition and at trial, April claimed her eye injury
occurred when she was hit by a "two-by-four" while
visiting Pablo at a job site. April acknowledged that there
were no "lines like a two-by-four" around her eye,
no bruising around the eye area, and no broken or fractured
bones. Instead, only April's eye was bruised and swollen.
Despite April's assertion, medical testimony indicated
that April's eye injury was inconsistent with being hit
by a two-by-four. The medical testimony showed that her eye
injury was "more consistent with a round . . .
object" such as "a fist" or "a
In addition to the domestic-violence issues between April and
Pablo, the record indicates that Pablo would
"discipline" Andrew by spanking Andrew on the
bottoms of his feet with a "bad belt." Andrew
described the "bad belt" as having Mexican dogs on
it. Dr. Zinkus found that such spanking was "unnecessary
and border[ed] on abusive." He explained that "the
reason we spank children, if we do spank children, on the
rear end is because it's padded. . . . [I]f you want to
inflict pain, you find an area that's not padded and has
lots of small bones in it, and you could certainly inflict
pain on a child."
On one occasion, April and Andrew were at Judi's house
when Andrew complained of his feet hurting. Judi told Andrew
to take off his shoes, but April would not allow it. When
asked about the incident, April explained that they had just
arrived at Judi's house and were not staying long, so
there was no point in Andrew's taking off his shoes. She
further stated that Andrew's feet were hurting because
his shoes were too small. While April admitted that Pablo
disciplined Andrew at times, she denied ever seeing Pablo
spank Andrew on his feet. But April agreed that she is not
always around Pablo when he disciplines Andrew and, as a
result, does not know what happens when the discipline occurs
outside her presence.
Andrew advised the GAL that April and Pablo fight all the
time. Andrew further advised that April scares him and that
he has seen April chase Pablo with a knife. During a later
meeting with the GAL, Andrew advised that April yelled at him
to tell the judge that she never chased Pablo with a knife.
While Andrew was adamant that the incident occurred, he
stated that he did not want to tell the judge about the
incident because "it really hurts when his feet get
Additionally, the chancellor heard testimony from
Andrew's foster parent Anne Dodds. Anne testified that
Andrew is "most comfortable with David" and
"tells [her] everyday" that "[h]e wants to go
home with David." Conversely, Anne testified that Andrew
gets "extremely nervous" before his visits with
April. Based on her observations of Andrew, Anne believes
Andrew loves his mother but is "afraid of her."
In support of her assertion that the chancellor erroneously
considered the domestic-violence issues as evidence of her
unfitness, April relies on Moody v. Moody, 211 So.2d
842 (Miss. 1968). In Moody, the father
"admitted that he had a high temper and did have
difficulty in controlling it." Id. at 843. But
"there was no evidence that his high temper in any way
affected his treatment of his child." Id.
Here, unlike in Moody, April denies any
domestic-violence issues with Pablo since their marriage,
despite her mysterious eye injury in 2017. She further denies
that Pablo hits Andrew on the bottoms of his feet as a form
of discipline, despite Andrew's disclosure of such
conduct to multiple people. Moreover, unlike in
Moody, the record shows that April and Pablo's
volatile relationship adversely affects Andrew, who sees them
fighting "all the time" and is
"scare[d]." As with her drug and alcohol issues,
April simply refuses to acknowledge that her relationship
with Pablo is unhealthy not only for her but also for her
April's Mental Health
April asserts she "did not have significant mental
health issues at the time of trial." Yet April admitted
that she was diagnosed with depression and bipolar disorder.
In August 2016, Andrew and Allison stayed with David at
David's house for a few days as a result of April's
depressive state. April, who was admittedly depressed, asked
David for money to buy a gun. Additionally, in September
2016, April advised CPS that she was battling depression.
Despite these mental-health issues, April was not on any
medication and was not receiving treatment. Instead, April
claims she does not need medication or treatment because she
is "well." As with her drug and alcohol addictions,
April claims that God healed her depression and bipolar
April's Refusal to Participate in Counseling with the
Child and Her Withdrawal of the Child ...