JACKSON – A Tippah County child custody case should go back to chancery court for retrial, the Mississippi Court of Appeals said Tuesday.
The problem, it said, was that Chancellor Glenn Alderson should have considered whether the child’s mother deserted him as the basis for his decision, not the legal principal of “in loco parentis,” which means whoever is acting in place of his parent.
The case, which uses fake names to protect the minor child’s privacy, is a dispute between William and Sarah Smith, the grandparents of Jason Wells, and Tara Wells, Jason’s natural mother.
Essentially, the Smiths said Tara left the child with them and visited him infrequently since his birth in 2003.
In October 2008, they filed a petition for adoption and termination of the parental rights of Tara and Jason’s natural father, Robert Johnson. Later, Johnson joined their petition agreeing to his son’s adoption.
While the chancellor declined to terminate their parental rights, he found the child’s best interest would be served by granting the Smiths primary custody. Tara was granted visitation rights.
Tara appealed, saying he was wrong to use “in loco parentis” to grant custody to the Smiths.
The Court of Appeals agreed, saying a recent state Supreme Court decision set the precedent for such situations, and its 8-1 vote reversed Alderson and sent the case back to him.
The judge should “determine whether Tara deserted Jason” and consider the child’s current circumstances for a custody decision, the court said.
Judge Ken Griffis disagreed, but only that he said Alderson’s decision was not reversible error because he based it on the child’s best interest.
Contact Patsy R. Brumfield at (662) 678-1596 or firstname.lastname@example.org.
Patsy R. Brumfield/NEMS Daily Journal