WALLER, Chief Justice, for the Court:
¶ 1. William and Sarah Smith are the grandparents of Jason Wells. Jason's mother, Tara Wells, is Sarah's daughter.
¶ 2. Under Mississippi law, a natural parent loses the legal presumption that custody should be with him or her only if there has been a clear showing of abandonment, desertion, or unfitness on the part of the parent. See infra ¶¶ 8-9. The Albright factors are not considered unless such showing has first been made. Id. Since the chancellor here proceeded to conduct an Albright analysis, he treated the natural-parent presumption as though it had been overcome; thus, he implicitly and necessarily found that it had been. We must decide whether he did so based on the doctrine of in loco parentis — which would be error — or based on a finding of desertion by Tara, which, in turn, had necessitated the Smiths standing as in loco parentis for Jason. We find the latter;
¶ 3. The Court of Appeals set out the facts and procedural background as follows:
¶ 4. The chancery court found that Tara had "failed to exercise her parental rights and fulfill her parental responsibilities" by her "long and continuous absences" from Jason. Consequently, the Smiths had raised Jason virtually his entire life and therefore stood in the position of in loco parentis. The chancery court then proceeded to conduct an analysis based on the Albright factors to determine custody. It concluded that Jason's best interest was served by allowing the Smiths to retain custody.
¶ 5. Tara appealed to this Court, and we assigned the case to the Court of Appeals. She argued that the chancery court had erroneously relied upon the Smiths' status as in loco parentis to find that Tara's right to the natural-parent presumption had been relinquished. The Court of Appeals agreed. Smith ex rel. Adoption of Wells v. Smith, 97 So.3d 88, 90-91. It reversed and remanded the case for the chancery court to determine instead whether Tara had relinquished her right to the natural-parent presumption by deserting Jason. Id.
¶ 6. The Smiths now file this petition for writ of certiorari. They argue that the chancery court did find that Tara had deserted Jason and that it had used desertion — not the doctrine of in loco parentis — as the basis for its finding that Tara had relinquished the natural-parent presumption. Alternatively, the Smiths assert that their standing as in loco parentis should overcome the natural-parent presumption in favor of Tara. We granted certiorari to address these issues.
¶ 7. A chancellor's custody decision will be reversed only if it was manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard. E.g., Johnson v. Gray, 859 So.2d 1006, 1012 (Miss.2003) (citing Mabus v. Mabus, 847 So.2d 815, 818 (Miss.2003)).
¶ 8. The best interest of the child is paramount in any child-custody case. E.g., Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994) (citing Smith v. Todd, 464 So.2d 1155 (Miss.1985)). In custody battles between a natural parent and a third party, it is presumed that it is in the child's best interest to remain with his or her natural parent. Carter v. Taylor, 611 So.2d 874, 876 (Miss.1992) (quoting Rodgers v. Rodgers, 274 So.2d 671, 672 (Miss. 1973)). To be awarded custody, therefore, the third party must first clearly rebut the natural-parent presumption or preference; if it is successfully rebutted, the chancellor must then examine the Albright factors and determine that third-party custody serves the best interest of the child. Logan v. Logan, 730 So.2d 1124, 1127 (Miss. 1998); see also In re Custody of M.A.G., 859 So.2d 1001, 1004 (Miss.2003) (stating that "a finding of unfitness is necessary to award custody to a third party against a natural parent and must be done before any analysis using the Albright factors").
¶ 9. The natural-parent presumption can be rebutted by a clear showing 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. Carter, 611 So.2d at 876 (quoting Rodgers, 274 So.2d at 672); Vaughn v. Davis, 36 So.3d 1261, 1264-65 (Miss.2010); In re Dissolution of Marriage of Leverock and Hamby, 23 So.3d 424, 429-30 (Miss.2009).
¶ 10. The doctrine of in loco parentis does not, by itself, overcome the
¶ 11. In loco parentis can — in very limited, unique situations — sometimes be used to help rebut the natural-parent presumption. In both Pell and J.P.M, a husband learned during the pendency of divorce proceedings that he was not the biological father of a child born of, or just prior to, the marriage. J.P.M., 932 So.2d at 762-65; Pell, 881 So.2d at 185. In those cases, we reasoned that the natural-parent presumption had been overcome
¶ 12. Turning to the facts before us, we have held that grandparents who stand in loco parentis have no right to the
¶ 13. Having found that in loco parentis is insufficient to overcome the natural-parent presumption, we consider the chancellor's order. The Smiths insist that the chancellor actually relied on Tara's desertion of Jason — not the Smiths' standing as in loco parentis — to find that Tara had relinquished the natural-parent presumption.
¶ 14. The chancellor's order stated, in pertinent part, that:
¶ 15. The Smiths maintain that a careful reading of the order shows that the chancellor first found that Tara had deserted Jason; he then concluded that the Smiths had assumed the role of in loco parentis because of Tara's desertion. Everything therefore — the Smiths' status as in loco parentis and Tara's relinquishment of the natural-parent presumption — stemmed from the initial finding of desertion.
¶ 16. We agree with the Smiths. The chancellor found that Tara's "long and continuous absences," her failure "to exercise her parental rights," and her failure to "fulfill her parental responsibilities" had caused the Smiths to stand in loco parentis. These actions are consistent with desertion, which means "`[t]o forsake (a person, institution, cause, etc., having a moral or legal claims upon one) ... [or][t]o forsake one's duty, one's post or one's party." Leverock, 23 So.3d at 430 n. 2 (quoting Ainsworth v. Natural Father, 414 So.2d 417, 420 (Miss.1982)). Though the chancellor never explicitly used the term "desertion," his description of Tara's behavior met the definition of the term. The record supports desertion as well. The GAL, for example, asserted that Jason had been in Tara's "exclusive care and custody for a period totaling no more than twelve weeks since he had been born[,]" and that Tara had "constructively abandoned or deserted [Jason] because she [had] not offered any financial support, or made any reasonable efforts to be with the child prior to the initiations of [the] proceedings[.]" (Emphasis added.) In sum, the chancellor made findings consistent with desertion, and the record supports such a finding. We will not reverse simply because the chancellor omitted or neglected to use the specific word "desertion."
¶ 17. The chancellor's order further stated that "due to [the Smiths] being
¶ 18. Because the chancellor found that Tara had deserted Jason, we hold that he did not err in treating the natural-parent presumption as having been overcome. A best-interest, Albright analysis, therefore, was proper. And since no assignment of error has been raised regarding the chancellor's Albright analysis, we affirm his decision.
¶ 19. We find that the chancellor did not err in treating the natural-parent presumption as having been overcome. Though the chancellor did not use the word "desertion," his factual findings regarding Tara's behavior satisfied the definition of the term. Accordingly, the chancellor properly reviewed the Albright factors and concluded that it was in Jason's best interest to award custody to the Smiths. Therefore, we reverse the judgment of the Court of Appeals and affirm the judgment of the chancery court.
¶ 20.
CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.
DICKINSON, Presiding Justice, dissenting.
¶ 21. The chancellor awarded primary custody of Jason, a minor child, to his grandparents without making a specific finding — by clear and convincing evidence — that Jason's natural parents had abandoned him. This error, in my view, requires reversal, so I respectfully dissent.
¶ 22. The chancellor did not find, by clear and convincing evidence, that Tara had abandoned or deserted her child. So, according to this Court's precedent, the evidence in the record is insufficient to overcome the natural-parent presumption. Forced to recognize that the chancellor didn't actually say the natural-parent presumption was overcome, and didn't actually find Tara had abandoned or deserted her child — indeed, the chancellor refused to terminate Tara's parental rights — the majority engages in an episode of appellate fact-finding that is as incorrect for the case before us today as it is dangerous for cases later to come. The majority simply says that Tara's actions "are consistent with desertion." (Emphasis added.)
¶ 23. A chancellor's discretion to award custody of children to third parties, rather than their natural parents, must be exercised within the parameters of the law. The controlling statute in Mississippi limits a chancellor's authority to award custody to third parties by requiring
¶ 24. And this Court has long recognized, "our society demands, and the law approves the rule, that the natural parents of children have the natural right to the nurture, care and custody of their children."
¶ 25. At the conclusion of the hearing in this case, the chancellor discussed Jason's custody for six pages of transcript without ever saying Tara had abandoned or deserted Jason. In fact, the chancellor specifically stated that Tara had "good intentions," but (as the chancellor put it):
¶ 26. After discussing his concerns from the bench, the chancellor never mentioned abandonment or desertion or that Tara had failed to exercise parental rights. The chancellor's order — prepared by the grandparents' counsel — says nothing about the moral concerns the chancellor voiced from the bench. Instead, it states as the reason for granting custody to the grandparents, the following:
¶ 27. While I am somewhat concerned with the difference in the chancellor's concerns announced from the bench and those stated in the order, the fact is that neither the bench opinion nor the order states proper grounds for bypassing a natural parent and awarding custody to third parties.
¶ 28. The majority — recognizing that the grandparents' in loco parentis status was not a sufficient basis to require examination of the Albright factors
¶ 29. The majority then proceeds to make an astonishing statement. Says the
¶ 30. This Court has never held that "long and continuous absences" and failure to exercise parental rights and fulfill parental responsibilities are the test for a finding of abandonment. Abandonment requires an intent to abandon and relinquish all rights, and this Court has steadfastly required a chancellor to find that the natural parent intended
Nothing in this record suggests that Tara intended to relinquish her rights and sever all ties with her child.
¶ 31. A parent's long and continuous absence and failure to exercise parental rights may, or may not, be of sufficient duration — and so lacking in reasonableness under the circumstances — as to justify a finding of abandonment or desertion. But a chancellor must make that call-and the law requires that it be made by clear and convincing evidence.
¶ 32. The chancellor in this case did not make a finding of abandonment or desertion. The majority assumes not only that the chancellor meant to find abandonment or desertion, but also that he meant to do so by clear and convincing evidence. The chancellor never did. I cannot join the majority's dangerous course of speculation. A natural parent's rights are far too important for appellate courts to make assumptions about a chancellor's required findings and the burden of proof.
¶ 33. Ultimately, the law holds the chancellor responsible for evaluating the quality and quantity of evidence in finding abandonment.
¶ 34. I find the law to be crystal clear on this point: A chancellor must make an on-the-record finding that, under the totality of the facts and circumstances of the case, the natural parent's conduct evinces an intent to relinquish parental rights and abandon or desert the child. Any failure by the chancellor to make this finding — by clear and convincing evidence — requires reversal. The chancellor failed to do so in this case, so I would reverse and remand this case for further review.
KING, J., JOINS THIS OPINION.
