Custody and the Natural Parent Presumption in Mississippi

The Mississippi Courts presumes that the best interests of a child is that the child remains with the natural (biological or adoptive) parent as opposed to a third party. The presumption is that a natural parent should have custody of a child over third parties. And rightly so. Section 93-13-1 of the Mississippi Code states: “The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education...If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent.”

However, this presumption that the child be in the custody of the natural parents is not an absolute right. This presumption goes away if it is proven that the natural parents have (a) abandoned the child, or (b) deserted the child, or (c) is proven to be otherwise unfit, and (d) if the best interest of the child dictates that a third party should be granted custody. If the presumption is overcome because of the conduct of the natural parents, the Court goes through its standard on-the-record analyses of the proof based on the Albright custody factors to determine whether the natural parents or the third party should be granted custody.

Such would be the analysis in the event that a stepparent and the natural parent fight over custody of the child of the natural parent from a previous relationship or marriage. In such instance, the stepparent may be deemed to be in loco parentis (see earlier post).

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