In Re: Custody of Brown
| Docket Number: | 2010-CA-00595-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-28-2011 Opinion Author: Irving, P.J. Holding: REVERSED AND REMANDED |
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| Additional Case Information: |
Topic: Child custody - Legal standard - Albright factors - Natural-parent presumption Judge(s) Concurring: Lee, C.J., Griffis, P.J., Myers, Barnes, Ishee, Roberts, Carlton, Maxwell and Russell, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - CUSTODY |
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| Trial Court: |
Date of Trial Judgment: 12-04-2009 Appealed from: Adams County Chancery Court Judge: George Ward Disposition: AWARDED CUSTODY OF MINOR DAUGHTER TO MATERNAL GRANDMOTHER AND GRANTED VISITATION RIGHTS TO NATURAL FATHER Case Number: 2009-463 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Earnest Brown |
SHAMECA S. COLLINS |
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| Appellee: | Lillie Hargrave | DEBORAH MCDONALD |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Child custody - Legal standard - Albright factors - Natural-parent presumption |
| Summary of the Facts: | Ernesha Brown was born on June 12, 1999. Earnest Brown and Azelia Brown, Ernesha’s parents, divorced in 2003. Pursuant to the terms of the divorce, Azelia was granted custody of Ernesha, and although Earnest was supposed to have regular visitation after the divorce, Ernesha did not spend as much time with him as was intended. Azelia eventually remarried and had more children. On May 5, 2009, Azelia died. Lillie Hargrave, the maternal grandmother of Ernesha, took custody of all of Azelia’s children, including Ernesha. Earnest made several unsuccessful attempts to obtain custody of Ernesha from Hargave, and eventually filed a suit for custody. The chancery court found that it was in Ernesha’s best interest to remain in Hargrave’s custody. The chancery court’s final judgment granted Earnest regular visitation with Ernesha. Earnest appeals. |
| Summary of Opinion Analysis: | The chancery court applied an erroneous legal standard. As Earnest has pointed out, it is not proper for a chancery court to use the Albright factors alone when determining whether to take a child away from a natural parent. Rather, it is generally presumed that the best interest of a child is served by remaining in the custody of the child’s natural parent. The primary determination in every custody case is the best interest of the child. On remand, the chancery court must consider the natural-parent presumption and whether Earnest has lost the benefit of the presumption, either through desertion or some other conduct that has made him unfit as a parent. In the absence of desertion or other indication that Earnest is unfit, the natural-parent presumption must be considered in determining who should have custody of Ernesha. |
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