               IN THE SUPREME COURT OF MISSISSIPPI

                       NO. 2002-CT-00532-SCT


JOSEPH GRIFFITH

v.

SUE ANN PELL, NEXT FRIEND AND PARENT
OF S. A. P., MINOR

                      ON WRIT OF CERTIORARI

DATE OF JUDGMENT:              2/12/2002
TRIAL JUDGE:                   HON. JANE R. WEATHERSBY
COURT FROM WHICH APPEALED:     WARREN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:        PATRICIA PETERSON SMITH
ATTORNEY FOR APPELLEE:         MARK W. PREWITT
NATURE OF THE CASE:            CIVIL - DOMESTIC RELATIONS
DISPOSITION:                   AFFIRMED - 07/29/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

                       CONSOLIDATED WITH
                       NO. 2003-CA-00202-SCT

ROBERT "SONNY" PELL

v.

SUE ANN PELL


DATE OF JUDGMENT:              11/22/2002
TRIAL JUDGE:                   HON. JANE R. WEATHERSBY
COURT FROM WHICH APPEALED:     WARREN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:        DAVID M. SESSUMS
ATTORNEY FOR APPELLEE:         MARK W. PREWITT
NATURE OF THE CASE:            CIVIL - DOMESTIC RELATIONS
DISPOSITION:                               AFFIRMED IN PART AND REVERSED
                                           AND REMANDED IN PART - 07/29/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       EN BANC.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:


¶1.    These consolidated appeals arise from proceedings in which Robert "Sonny" Pell

sought a divorce from Sue Ann Pell and from proceedings in which Sue Ann sought a

determination of paternity of her minor daughter. Prior to their marriage, but while Robert

and Sue Ann were dating and then cohabiting, Sue Ann gave birth to a minor daughter.

During their marriage and under the belief that he was the minor's biological father, Robert

acted as a father to the minor. In her response to the complaint for divorce, Sue Ann averred

that Robert had been "a good father to her minor child."

¶2.    About a year after the divorce proceedings were commenced, Sue Ann gave birth to

a second child, and Robert, believing he was not the father of the second child, filed a

motion for genetic testing to determine paternity of Sue Ann's first child who was the subject

of the custody issue in the divorce proceedings. The genetic testing conclusively showed

that Robert was not the natural father of the minor child in question.

¶3.    After this turn of events, the chancellor granted Sue Ann's motion for partial summary

judgment, ruling that Robert had "no legal standing in law or fact on the issue of custody as

presented by his pleadings herein." Sue Ann then filed a motion to terminate Robert's rights



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of visitation with the minor child. The final decree of divorce did not grant Robert any rights

of visitation.

¶4.    Thereafter, Sue Ann filed a paternity action against Joseph “Joe” Griffith, the

biological father of the child. The parties to the paternity suit entered into an agreed order

declaring Griffith the biological father, ordering child support, and stating that all other

matters would be decided by the chancellor at a later date. Later, Sonny and Griffith filed

a motion for declaratory judgment, requesting that Sonny be declared the legal father of the

child arguing that not only that this declaration would be in the best interest of the child but

that Sue Ann should be estopped from denying Sonny’s paternity as well. Griffith agreed to

relinquish all parental rights and allow Sonny to adopt the child. The chancellor denied their

motion for declaratory judgment, set child support payments, and granted Griffith reasonable

visitation.

¶5.    Both actions were separately appealed to this Court. The Court of Appeals affirmed

the chancery court which held that, due to the peculiar circumstances of these cases, the issue

of what was in the best interest of the minor child should be decided in the appeal of the

divorce action. Griffith v. Pell, 2003 WL 22038733 at *4 (Miss. Ct. App. 2003). We

granted certiorari on the paternity appeal and have, pursuant to Miss. R. App. P. 3(b),

consolidated the two appeals because they involve common questions of law or fact.

                                       DISCUSSION

       I.        TERMINATION OF ROBERT'S PARENTAL RIGHTS.

¶6.    The chancellor held, and Sue Ann argues, that the paternity proceedings foreclosed

any rights of custody or visitation Robert may have had with regard to the minor child. We

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disagree. Merely because another man was determined to be the minor child's biological

father does not automatically negate the father-daughter relationship held by Robert and the

minor child. Indeed, in Logan v. Logan, 730 So. 2d 1124 (Miss. 1998), we held that the

custody of a minor child should be awarded to its stepfather upon the divorce between the

stepfather and the child's biological mother. Id. at 1127. We reiterated our recognition of

the doctrine of in loco parentis,1 id. at 1126, which clearly applies to Robert.

¶7.    In Logan, we further held:

                      Where a stepfather, as an incident to a new marriage, has
              agreed to support the children of a previous marriage, or where
              he does so over a period of time and the mother and the children
              in good faith rely to their detriment on that support, the best
              interests of the children require entry of a child support decree
              against the stepfather. Thus, it follows that if a stepparent can
              be required to pay child support for a stepchild based on his
              support of the stepchild over a period of time, where it is in the
              best interests of the child, he should be allowed to have custody
              of the stepchild based on the affection for and support of that
              child over a period of time. With the burden should go the
              benefit.

Id. at 1126 (citation omitted & emphasis added).



¶8.    Under Logan, because Robert supported and cared for the minor child as if she were

his own natural child, under state law, he may be required to pay child support for the minor



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         A person acting in loco parentis is one who has assumed the status and obligations
of a parent without a formal adoption. Logan v. Logan, 730 So. 2d 1124, 1126 (Miss.
1998). "Any person who takes a child of another into his home and treats it as a member of
his family, providing parental supervision, support and education, as if it were his own child
is said to stand [in loco parentis]." Id. (quoting W.R. Fairchild Constr. Co. v. Owens, 224
So. 2d 571, 575 (Miss. 1969)).

                                              4
child. It therefore follows that he may be awarded custody and/or visitation rights with the

minor child.

¶9.    Courts of at least two other states have spoken to the question before us here. The

Supreme Court of Wisconsin has held that, even when a third party to a marriage is the

biological father of a child of the marriage, the biological father does not have any paternity

rights if he fails to establish that he had a substantial relationship with the child. A.J. v. I.J.,

677 N.W.2d 630, 642 (Wis. 2004). The court noted that the biological father "did not

support [the minor child] emotionally or financially; that occasionally buying formula and

diapers was insufficient to show his assumption of parental responsibility, as was his failure

to assert parental rights . . . at her birth." Id. at 636. The court also stated:

                       A parent has a constitutionally protected liberty interest
               in the "companionship, care, custody and management of his or
               her children." Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct.
               1208, 31 L. Ed. 2d 551 (1972). However, parental status that
               rises to the level of a constitutionally protected liberty interest
               does not rest solely on biological factors, but rather, is
               dependent upon an actual relationship with the child where the
               parent assumes responsibility for the child's emotional and
               financial needs. [Citation omitted.] . . . As Justice Stewart
               observed in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct.
               1760, 60 L. Ed. 2d 297 (1979): "Parental rights do not spring
               full-blown from the biological connection between parent and
               child. They require relationships more enduring." Id. at 397 (J.
               Stewart, dissenting).

A.J., 677 N.W.2d at 636.

¶10.   A California Court of Appeal has stated that "[w]hatever role genetic testing may play

in resolving disputes between competing would-be fathers, . . . we fail to see what purpose

is served by using genetic testing to defeat an existing father-child relationship when there


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is no biological father seeking to assume care, support and nurturance of the child." In re

Raphael P., 118 Cal. Rptr. 2d 610, 625 (Cal. Ct. App. 2002). We agree wholeheartedly.

¶11.   We therefore reverse the chancellor's termination of Robert's parental rights and

remand for a prompt determination of custody, support and visitation issues. The chancellor

should consider, among other things, the agreement between Robert and Griffith as to the

custody and support of the minor child2 and any other evidence pertaining to the best interest

of the child insofar as Robert is concerned.

       II.    WHETHER THE BEST INTERESTS OF A CHILD IN
              REGARDS TO CUSTODY, VISITATION AND SUPPORT MAY
              BE DETERMINED IN A PATERNITY ACTION.

¶12.   The Court of Appeals answered this issue in the negative and held that paternity

actions were limited to issues of biology and support. Griffith v. Pell, 2003 WL 22038733,

at *2, 4 (Miss. Ct. App. 2003). The Court of Appeals stated:

                     Current case law provides that paternity suits have
              limited purposes. Where scientific evidence points
              overwhelmingly towards one man as the father of a child,
              paternity is established, and the only matter left to resolve in the
              paternity action is that of support. Rafferty v. Perkins, 757
              So. 2d 992, 996 (Miss. 2000).

                                             ***

              The best interest of the child standard is to be applied when
              determining custody issues, such as in a divorce proceeding.
              Although a natural parent is entitled to custody of a minor child,
              there are circumstances under which that entitlement may be set


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        In the paternity action, Griffith submitted an affidavit that he did not know the child,
did not wish to initiate a relationship with her, and felt her interests would better be served
by permitting Robert to adopt the minor child. He also submitted a document in which he
agreed to relinquish all parental rights in favor of Robert.

                                               6
              aside in favor of a third party, including a stepparent. That,
              however, is a matter better resolved in the appeal of the Pell
              divorce proceedings and not in the Griffith paternity action.

Id. at *4 (citations omitted). We agree. Paternity actions are about biology. However, it

also important to note that custody issues such as visitation and support issues are routinely

decided in paternity actions, as they were in Sue Ann Pell’s paternity action against Griffith

here, such that conflicts arise which may eventually necessitate consideration of the best

interests of the child. Yet, a paternity action is not the most convenient or appropriate forum

for determining the best interests of the child where custody actions are arranged to

effectively and exhaustively address the issue. The best interests of the minor child at the

heart of this action were best addressed in the divorce proceeding or in a separate custody

action, not in the paternity action.

                                       CONCLUSION

¶13.   The chancellor erred when she terminated Robert's parental rights. We reverse her

ruling on this issue, and we affirm the grant of divorce. We remand for a new hearing as set

forth above, and we instruct the chancellor to appoint a guardian ad litem for the minor child,

and for a hearing and a determination of what would be in the best interests of the minor

child. In making its decision the chancery court shall make a full on-the-record discussion

of the application of the Albright factors. See Albright v. Albright, 437 So. 2d 1003, 1004-

05 (Miss. 1983). We affirm the Court of Appeals' holding that paternity suits should

properly decide only issues of biology and support. We further affirm the Court of Appeals'

holding that a best interest determination is inappropriate for paternity suits. Thus, in the

paternity appeal we affirm the judgments of the chancery court and the Court of Appeals.

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¶14.   NO. 2002-CT-0532-SCT: AFFIRMED.

¶15. NO. 2003-CA-00202-SCT: AFFIRMED IN PART AND REVERSED AND
REMANDED IN PART.

    SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.




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