A Different Presumption–this one from Mississippi

I’ve got a couple of recent posts up about the marital presumption.  I thought I’d add another case–this one from Mississippi.  It’s not a marital presumption case, as you can see.   (If anyone can help me understand why it isn’t, I’d be grateful. Is it possible that MS no longer uses the presumption?   Do tell if you know.)  But the facts are similar to the recent CA case I wrote about and there is a presumption at work.

So here’s the story.   Anne and Jake had an intimate relationship before the married.   But during that time, apparently unbeknownst to Jake, Anne had a one-night stand with Tommie.  Anne got pregnant.  Tommie suspected the child might be his, but he knew about Jake, too.  Jake didn’t know about Tommie and so assumed that he was the father of the child.

Anne and Jake got married in June 2004 when Anne was 17 weeks pregnant.  When Vanessa was born Jake was there in the delivery room and cut the umbilical cord.  (Yes, this is one of those cases that includes that detail.  I relate it not because I think it is crucial but because we’ve talked about how courts fasten on this in the past.)

Now I don’t know where Tommie was or what he was up to in the following years, but in 2007 when Vanessa was around three Jake and Anne got a phone call from Tommie’s mother.   She said Tommie was about to deploy with the military, that she had heard that Anne had a baby and she (Tommie’s mother) wondered if it was Tommie’s.   Anne said no, but Jake decided to have a paternity test.  It ruled him out as Vanessa’s genetic father.  Even with that certain knowledge, Jake and Anne decided to continue raising Vanessa as Jake’s daughter.

But whether for that reason or for some other, things did not go well and in  2009 the marriage ended in divorce.  (By then Vanessa must have been about five or six.)   During the post-divorce custody proceedings (it appears that both Jake and Anne sought custody) Anne contacted Tommie.   They did DNA tests and confirmed that Tommie was the genetic father of Vanessa.   He filed for custody and a declaration of paternity.    Hearings were held through March 2012, by which time Vanessa must have ben around 8, I think.

The trial court determined that Tommie was the genetic father of Vanessa (which I don’t think was really disputed) and was therefore entitled to the “natural parent presumption.”  This presumption is one which I assume will please many readers.   It is a presumption that as between the natural parent and a third-party (which is what Jake is) it is in the best interests of the child for custody to be with the natural parent.   Anne is also a natural parent, of course.

While Jake was found to have status as in-loco parentis (basically someone acting as a parent, I believe) this didn’t rebut the presumption in Tommie’s favor, so custody was awarded between Tommie and Anne.   It appears that they were not together as Anne got custody and Tommie visitation.   Tommie was ordered to pay child support.   While Jake got no custody, the court found that phasing him out of Vanessa’s life would be harmful to her and so Jake was awarded visitation commensurate with Tommie’s.

Jake appealed.   And on appeal the court noted the particular facts of this case:

But there is a body of more relevant cases dealing with this very scenario—when a husband acts under the assumption that he is the father of the child his wife bore. And in these cases, the doctrine of in loco parentis has been used to put the presumed father on equal footing with the natural parent.

(Emphasis mine.)   Quoting an earlier MS Supreme Court decision, the appellate court continued:

“Merely because another man was determined to be the minor child’s biological father does not automatically negate the father-daughter relationship held by [the husband] and the minor child.”  Id.  Further, the supreme court cited with approval other jurisdictions that have held full-blown parental rights do not spring merely from a biological connection. In these cases, the burden is on the biological father to show a sufficient relationship with the child to entitle him to parental rights.

Ultimately Jake is found to have overcome the parental presumption and has parental rights.  I think these arise from a the fact that 1) he was married to Anne and 2) he developed a relationship with the child.   It’s not exactly the marital presumption, but it is a status that arises at least in part from the fact of the marriage.

In the end the court remands to consider custody with the understanding that Jake stands on equal footing with Anne and Tommie.   I have no idea what this means the court below might do.  And Tommie certainly fares better than the genetic fathers in the other cases we’ve looked at.   I’d love to hear what happens on remand.


31 responses to “A Different Presumption–this one from Mississippi

  1. It seems that if they had not divorced, they wouldn’t have considered tommir in the first place?

    • Maybe but maybe not. It is possible that Tommie could not have initiated a proceeding all on his own. But it may also be that he just had no interest in doing so. I think Vanessa prompted him to express his interest, possibly to displace Jake. But I’m really just speculating. Yet it is a good question–worth thinking about.

  2. I’ve seen cases that arrive at the opposite conclusion and in the interest of fairness I’d love it if you would discuss cases that arrive at conclusions that don’t advance your position that fatherhood is arbitrary and constructed where as motherhood is fixed and unchangeable.

    I have kind of thought the point of the blog, might be to function as a lab to test theories to see if presenting information from a particular angle might be enough to slowly but permanently alter strong convictions (like mine) about biological parenthood tied to legal parentage. And I kind of think the answer is yes actually (sadly). So I understand if presenting cases where results favor the bio father over the husband can’t be presented.

      • Do you mean Caban? That’s a case I do know but I think it is slightly different. The unmarried genetic father had a social relationship with the child, I believe. I can go check. The other case on that page is Santosky–one I don’t know, but I’ll go look.

    • In truth all I’ve done is take the three cases that happened across my desk in the past couple of months that really deal with similar facts. I didn’t otherwise select and I didn’t omit mention of any recent cases. I don’t mean to present a one-sided view, but I thought it was striking that there is similar reasoning (though different in important respects) from MS and CA–two states that do not share much in the way of general philosophy.

      In addition, I don’t mean to make any point at all about motherhood here. Motherhood is, in all these cases, a given. No questions are raised and thus, none are answered. I only meant these to be cases about fatherhood.

      Now you’ve got me thinking, though. I’m trying to remember a case with facts like these–where the husband wants to claim sort of legal right and where he has a developed social relationship but where another man is the genetic father–that comes out the other way–the husband loses his claim. I cannot say I’ve seen one, but that I don’t mean to make that sound definitive. I will continue to think about that. If I’ve written about one (certainly possible) that you remember, flag it. Or if you know of one, let me know where. I would, in fact, love to have the contrast for discussion. I’m just not sure I can recall having read one, and certainly not in the last several months.

      • No no I don’t mean to imply that you play with facts or omit cases – just thinking that maybe by presenting good supporting examples of that position almost exclusively you could almost make people forget they ever thought the other way.

        I actually took a time machine back to your first three posts on this topic but focused more on your views than a case but about marital presumption and how you see it as only reasonable for men because their parenthood is contrived where you said motherhood is as real natural and unchangeable as the weather. You were talking about how we don’t see marital presumption operate for women with motherhood because motherhood is an unchangeable fact. You asserted mothers pretty much pick who will play the roll of father and that guy is not always related to the kid biologically and many times he knows it and nobody seems to really care its all up to her and him who she’s allowing to play that roll which is why the results don’t bother you if its non -bio.

        • I recall (probably imperfectly) that run of posts. I think I meant to offer this as an observation about how the law structures are thinking rather than as a statement about what is good/bad or how things should be. An I would still say much the same thing. Rather than go back and look, though, maybe I’ll just say a bit here?

          There’s this really obvious way to identify the mother of a child–the woman gives birth. But the father is hard to tell. Is it the guy who cuts the cord, or the man she’s married to, or the man who is genetically related or what? Of course if one man is all those things it’s easy. But the law (and society) has always had to answer these questions about men somehow. Various ways have been tried at various times/places.

          What that means is that on some level we tend to think of fatherhood as a category we can and must define. We have, in the past, made it be the husband. We have assigned it to any man who steps up and becomes a social father to the child if the woman isn’t married. We’ve tried all sorts of things–and they have come into conflict into the past.

          Until recently (IVF) we have never had to do this with motherhood. A woman who gave birth to a child was, by definition there and identified. And she was genetically related. We face challenges now that seem unfamiliar to us.

          I always ask my classes if they can imagine the marital presumption applied in a gender neutral fashion. That would mean that if a married man had an affair and his lover gave birth to a child we would assign legal motherhood to the man’s wife. Most people cannot even imagine doing this. I think this is evidence that we are culturally more comfortable messing around with the assignment of legal fatherhood than we are with legal motherhood. Not saying this is good or bad, particularly. But I do think it is true.

          • Yes and I agree that society does appear to be more comfortable getting rid of a person’s father than getting rid of their mother although I think the thought of either is appalling. A person’s parents are not replaceable. You can get extra people to fill in but in general people are not something you can just swap.

            • It makes sense from a historical perspective. People always knew who the mother was, but not the father.

              • Certainly people didn’t feel like they needed to look around and assign someone the role of mother. The woman who gave birth got that assignment. But we had to have some way to figure out who the legal/social father would be, if there was going to be a legal/social father. Remember that at some times in history children born to unmarried women had no legal fathers. (There’s also times when they had no legal mothers, which is really interesting, too.)

            • I don’t think you are stating it fairly, really, because you’re using an unmodified “mother” and “father.” I don’t think society is particularly comfortable getting rid of either social/psychological mothers or social/psychological fathers. Indeed, I think that is partly what is going on in these cases–the husbands are social/psychological fathers with developed relationships with the children and we (as a society) are unwilling to just toss them aside.

              But we have often been unsure about who the genetic father is (where historically we have had no doubt about who the genetic mother is.) We also, historically, have not been convinced that assigning social/legal fatherhood to the genetic father is a good idea. So we have often assigned social/legal fatherhood on other grounds. Indeed, historically we’ve had to have some basis for assigning fatherhood that wasn’t genetics because we didn’t know about genetics with any certainty.

              So perhaps it is fair to say that we have been willing to oust a genetic father in favor someone else while the genetic mother has generally been recognized as a legal/social mother. But I don’t think that latter point is because of the genetics–I think it was because she gave birth. Again, it long pre-dated any ideas we had about genetics. .

            • But essentially Jake was her father until Tommie decided he wanted to parent. Don’t you think there was a reason Jake was allowed to continue to be a part of Vanessa’s life because it would be damaging to her if he was phased out?

              Both Anne and Tommie are ver low human beings. I feel awful for Jake and most importantly Vanessa. If anything I think the law and the ruling in this case is fair. Jake should have a role in her life (Tommie as well if he wishes) and him leaving her life would damage her forever. It’s not her fault the people who conceived her have no regard for how their actions can hurt others.

              • the unique thing about this ruling is that a person who was declared to be a non-parent was still accorded visitation. That’s unusual. I see it as a positive development.
                Julie posted an Australian case that ended similarly, but in the US I think this is a very uncommon outcome.

                • I agree about it being a positive development. I understand the need for protocols in the law but think there needs to be flexibility where each situation is evaluated and decisions are based on that situation.

              • Now I do believe you just said what I’m always saying which is that the child deserves the attention of her father as well as the attention of her Mom’s husband and that these people should all be required to cooperatively collaborate in this child’s best interests rather than any of the individuals being divisive and trying to keep her all to themselves. She owes none of them anything two of them have an obligation from having caused her to exist and the other has an obligation that he took on when he married her mother. As long as his optional involvement is not objected to by the mother and both parents are doing what they are required to do for her everything should be fine. Its when people vie for pull position that things get ugly. Nobody should interfere with fulfillment of a bio parent’s obligation and everyone should be mindful of maintaining positive healthy relationships that she already has while ensuring that she gets what she’s owed from her father and hopefully the possibility of a full and meaningful relationship with him and his family as well. How could that be bad

                • What you are missing is that her mom and the low life that conceived her who only decided five years into her life that he wanted to parent do object to her dad wanting to continue to have an active role in her life. That’s why this has gone to trial. So this is a bad situation.

                  I think this case shows how damaging divorce can be for a child. It’s where one parent has custody while the other has visitation rights. Take the whole affair out go the picture and that’s what this would be. Put the affair into the picture and it creates an extremely complicated situation. All I can say is that I really feel bad for this little girl who when she gets older will learn how low the people who conceived her are and what a great person her dad is.

  3. I’m confused about this portion of the transcript where it states the natural parents actions were harmful:
    Ҧ17. The chancellor found that Jake stood in loco parentis to Vanessa; that he had supported, cared, and treated her as his own child, even after he learned about her biological parentage; and that he had shared her custody and expenses after the divorce. This put Jake
    in a “very limited, unique situation[]” where his supportive actions towards the child—versus the natural parent’s harmful actions—rebutted the natural-parent presumption”.

    I went backward from that point and read very carefully and could not see where they’d written about any harmful actions by Tommie or the husband presented in the transcript, they both appear to have acted in the best interest of the children they were concerned with. The only harmful actions in my opinion are those of the biological mother but the transcript does not present her actions as harmful either. Whose harmful actions are they describing there? The mother’s or the fathers? Or the husbands? They clearly state that Tommie is the natural parent and that Jake is not the natural parent in 17 above, so they don’t mean the husband Jake is the natural parent.

    • I cannot look at the case just now, but I’ll make a note to go back and look. It’s certainly a fair question? Could Tommie’s harmful action be not paying any attention to the child? It does not appear that he made any effort to have any involvement with the child during the first few years. That might actually count as abandonment. But, as I said, I’m not looking at the case and I do not know. I’m just speculating.

      • OK, I figured out a way to go look. I think that paragraph 17 is recounting what the lower court did–and the appellate court finds that the reasoning is wrong, though the conclusion isn’t too far off. The citation is to the Smith case–and if you look in paragraph 19 you’ll see a little more discussion. That’s where the harmful actions of the natural parent come from, I think.

        But the appellate court doesn’t use this line of reasoning and so it doesn’t actually discuss any harmful actions. (I think from context it might have been abandonment, though. Still guessing on that.). The appellate court invokes Pell and JPM (see Para. 29.). In those cases the ability of the husband to claim rights does not depend on any failing by the biological father but seems to arise entirely from his own conduct.

        All of which may not fully answer your question, but at least it might move us a bit of the way?

        • Yes thank you. I just did not see them write anything derogatory in the pages that preceded that paragraph, the word harm I actually did not see written. He was away at war. Abandonment. Sheesh. Many fathers I’ve helped were away in Vietnam and when they got back their children were sometimes fully adopted out (believe there is a recent Utah case like that) or they were swept up in paternity fraud or paternity fraud with that marital presumption collusion which nets a black market step parent adoption where mom’s spouse is on orig birth, no formal step adoption, no record bio dad), and lastly children legally step parent adopted. All without their consent and people would back then encourage fathers in those situations to not disturb their children or the family because they believe the other guy is their father. Most of their kids found out as adolescents and were angry that their mother’s thought they could just pick them a different father and think that was perfectly OK. The Mom’s had lost track of the fathers and so from her divisive and controlling actions 20, 30 even 40 years these families spent apart because she was not adult enough to just cooperate with their father. She wanted them all to herself. If I were I judge I’d favor the situation that gave the kid everything they deserve in a collaborative non exclusionary kind of way. The person trying to sequester, separate and isolate would be suspicious to me.

          • I don’t know that we know if he was away at war during the first years of the child’s life. When his mother called when the child was three he was about to go off to war. But I don’t see that we know where he had been before that. Do we? I might have missed it.

            • Alright ya got me.

            • we don’t know where the father was, but the story seems to say that it was the grandmother who first reached out. this is reminder, whatever the facts of this case, even in a case where the father is unwilling or unavailable, there may be grandparents who are interested in their kin and it would be unfair in my opinion to block the relationship.

              • Thanks for pointing that out. They probably also feel that way if their son was a sperm donor.

                • Yay John and Ki! And sometimes those grandparents aunts and uncles and cousins and siblings ask for help from diggers like me because they are outraged at what their adolescent nimrod relative did by abandoning his or her kids like they own them – they are family and they need to be treated like it.

              • I’m not sure if this is about blocking the relationship. Everyone knows who the genetic father is. For all we know there would be contact between the genetic kin and the child. This is about who gets legal recognition and this case in particular is actually about protecting the relationship between the (now-ex)husband and the child. (And we don’t know what the court will do in the end, remember.)

                • oh i was just making a general observation

                • No you don’t get to do that. Legal is everything because unfortunately the way the law currently is the kids and the relatives rights to legal kinship stupidly is tied to the person who is named legal parent. If the bio dad looses his legal fatherhood the rights of everyone in the family are lost. He must be named as the father in order for their kinship rights to be recognized. You could strip him of his authority for good cause without stripping him of his title on the birth record and that would leave the rights of the family intact. But put the step father’s name on the certificate and the kid gains nothing he would not have already had and neither to the relatives of the step dad. They’d have all kinds of rights even though the step dad is not named on the birth record despite the naming of the father on the birth record. For instance step dad can add him to his medical insurance or one step sibling could claim another step sibling on their taxes if they cared for them in their elderly years as a relative dependent. Name the step dad as father and guess what, the kid could not name his own flesh and blood sibling as a relative dependent if they cared for them in their elderly years. Maternal presumption of paternity is a loss for everyone. So what if they have visitation? Rights Julie rights are critical

                  • Legal recognition is important but legal recognition isn’t everything. I know, for example, lots of people who’ve used known sperm providers where the man and his extended family are important players in the child’s life even though they have no legal status. It’s true that their relationships aren’t legally protected, but it’s hardly the same as saying they don’t exist.

                    And this case isn’t really one of those anyway, as it appears that no one is challenging the legal status of the genetic father. The question is the recognition of the child’s relationship (social and psychological) with the ex-husband.

                  • To Julie’s point below certainly as long as there is legal recognition of the members of the bio family as kin and the social father poses no risk and continued contact would in fact be in the best interest of preventing trauma to the person then its always better to be inclusive than exclusive, Better to unify and work together than to divide and sequester.

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