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.