                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2018-CA-01061-SCT

                               CONSOLIDATED WITH

                               NO. 2016-CA-00615-SCT


CANDICE RAE SHURDEN BALLARD

v.

JOE MARSHALL BALLARD


DATE OF JUDGMENT:                        05/23/2018
TRIAL JUDGE:                             HON. PERCY L. LYNCHARD, JR.
TRIAL COURT ATTORNEYS:                   A. E. (RUSTY) HARLOW, JR.
                                         H. R. GARNER
                                         NANCY M. MADDOX
                                         SARAH JEAN LIDDY
                                         KURT STEVEN SAUL, JR.
                                         SABRINA D. HOWELL
COURT FROM WHICH APPEALED:               DESOTO COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                  JERRY WESLEY HISAW
ATTORNEY FOR APPELLEE:                   SABRINA D. HOWELL
NATURE OF THE CASE:                      CIVIL - CUSTODY
DISPOSITION:                             AFFIRMED - 08/29/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      BEAM, JUSTICE, FOR THE COURT:

¶1.   This Court remanded this case for further proceedings on child custody. Ballard v.

Ballard, 255 So. 3d 126 (Miss. 2017). Finding that the chancellor was not manifestly wrong
or clearly erroneous in granting custody of the three minor children to Marshall Ballard, we

affirm.

                            FACTS AND PROCEDURAL HISTORY

¶2.       The facts were summarized in Ballard. Candice and Marshall Ballard were married

in 2006, and three children were born during the marriage: (1) Jane, who was born in 2007;

(2) John, who was born in 2009; and (3) Jill, who was born in 2011.1 Id. at 128-29. “Neither

party disputes the fact that Marshall is not the biological father of Jill, who was born as a

result of a marital-separation affair.” Id. at 129.2

¶3.       Marshall filed for divorce, and the parties later agreed to an irreconcilable-differences

divorce in which the chancery court would decide child custody, among other issues. Id. The

chancellor awarded custody to the Department of Human Services but placed the children

with Marshall’s parents. Id. at 130.

¶4.       Candice appealed, arguing that the chancellor relied strictly on hearsay in making the

custody determination. Id. at 131. This Court in Ballard agreed with Candice and reversed

and remanded the issue of child custody. Id. at 134.

¶5.       On remand, the chancery court awarded custody of the children to Marshall.

Aggrieved, Candice appeals, arguing that the instructions given by this Court were simply

to review the determination of Candice’s fitness without the hearsay evidence, not to conduct

a new trial on custody.


          1
        We have continued to use the aliases for the minor children fashioned by this Court
in Ballard because of the confidential nature of this case.
          2
              It is undisputed that Marshall is the biological father of Jane and John.

                                                  2
                                 LAW AND ANALYSIS

¶6.    Candice raises the following issues on appeal:

       I.     Whether the chancellor erred in following the instructions given by this Court.

       II.    Whether the chancellor erred in finding that custody of Jill could be
              awarded to Marshall.

       III.   Whether the chancellor erred in the Albright analysis.

¶7.    The standard of review in domestic-relations cases is well-established: “When this

Court reviews domestic-relations matters, our scope of review is limited by the substantial

evidence/manifest error rule. Therefore, we will not disturb the findings of a chancellor

unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard

was applied.” Darnell v. Darnell, 167 So. 3d 195, 201 (Miss. 2014) (Darnell I) (internal

quotation marks omitted) (quoting Giannaris v. Giannaris, 960 So. 2d 462, 467 (Miss.

2007)).

       I.     Whether the chancellor erred in following the instructions given by
              this Court.

¶8.    This Court reversed and remanded the issue of child custody for further proceedings,

because it found that the chancellor’s reliance on hearsay evidence in the guardian ad litem’s

report had been erroneous. Ballard, 255 So. 3d at 134. Candice contends that on remand

the chancellor was only to consider whether she was unfit or whether the presumption against

custody by a violent parent had been implicated by her.

¶9.    Relying on Darnell II, Candice asserts that the trial court cannot go beyond the

instructions of the appellate court. Darnell v. Darnell, 234 So. 3d 421, 424 (Miss. 2017)



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(Darnell II). However, the facts in Darnell II are dissimilar. In Darnell II, this Court

specifically directed the trial court to make new findings on remand about whether two

statements were admissible evidence and to conduct a new Albright analysis in light of that

evidence. Id.

¶10.   Here, no such instructions limited the trial court’s consideration of the issue on

remand. The instructions were simply to reconsider custody of the three minor children

without using the hearsay evidence from the guardian ad litem’s report.

¶11.   “The preeminent consideration of the chancellor on remand should be the best interest

of the children.” Jerome v. Stroud, 689 So. 2d 755, 760 (Miss. 1997) (Prather, P.J., specially

concurring). On remand, the chancellor found that Marshall was best suited to have custody

both of his two biological children and also of Jill, for whom he had served in loco parentis.

Therefore, the chancellor on remand did not go beyond the instructions given by this Court.

       II.      Whether the chancellor erred in finding that custody of Jill could
                be awarded to Marshall.

¶12.   While Candice contends that the chancellor exceeded the scope of the instructions on

remand, she argues that Marshall’s having acted in loco parentis for Jill was not enough to

overcome the natural-parent presumption with regard to Candice’s custody of Jill.3 Candice

correctly states that “[t]he law recognizes that parents are the natural guardians of their

children, and ‘it is presumed that it is in the best interest of a child to remain with the natural

parent as opposed to a third party.’” Davis v. Vaughn, 126 So. 3d 33, 37 (Miss. 2013)

       3
        Candice takes issue with the court’s granting custody of all three children to
Marshall, but her argument focuses on Marshall’s having acted in loco parentis to Jill and
his being granted custody of Jill despite the natural-parent presumption.

                                                4
(quoting In re Dissolution of Marriage of Leverock and Hamby v. Leverock, 23 So. 3d 424,

429 (Miss. 2009)).

       However, the presumption in favor of the parent may be rebutted by clear and
       convincing evidence 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.”

Id. (quoting Smith v. Smith, 97 So. 3d 43, 46 (Miss. 2012)). “If the natural-parent

presumption is successfully rebutted, the court may then proceed to determine whether an

award of custody to the challenging party will serve the child’s best interests.” Id. (citing

Smith, 97 So. 3d at 46).

¶13.   Candice contends that this case is controlled by In re Waites v. Ritchie, 152 So. 3d

306 (Miss. 2014). In Waites, the mother sought to modify a custody agreement. Id. at 307.

She subsequently notified T.J., her child’s biological father who had joined her petition

seeking custody. Id. Although her husband, Scott, had cared for the child from the

beginning, the chancellor excluded Scott from the Albright consideration because he was not

a natural parent; the chancellor awarded full custody to the mother. Id. However, the

chancellor allowed Scott and T.J. visitation. Id. Scott appealed, and the Court of Appeals

reversed and remanded, finding that Scott should have been considered on equal footing with

the natural parents. Id. The mother and T.J. filed a petition for a writ of certiorari, which this

Court granted. Id. This Court found that the chancellor had properly excluded Scott from

consideration. Id.




                                                5
¶14.   Candice further argues that the chancellor erroneously relied on a Court of Appeals

case, Welton v. Westmoreland, 180 So. 3d 738 (Miss. Ct. App. 2015), to support awarding

Marshall custody of Jill. In Welton, the natural father sought a modification of custody of

his daughter Alexice and subsequently amended his complaint to seek custody of his

daughter Justice. Id. at 740. Although Daniel was not Justice’s biological father, she

believed he was until she was twelve years old. Id. Her biological father abandoned her and,

after her birth, had never made an attempt to see her. Id. While Daniel knew he was not

Justice’s biological father, he raised her like she was his own from the time she was four

months old. Id. Further, Justice’s mother requested that Justice retain Daniel’s last name.

Id.

¶15.   In determining custody of Justice, the court acknowledged that,

       [i]n general, the natural parent presumption precludes a court from granting
       custody to a “third party” over the objection of a natural parent absent clear
       and convincing evidence that the natural parent has abandoned or deserted the
       child, has engaged in immoral conduct harmful to the child, or is an unfit
       parent.

Id. at 744. “The chancellor did not find that any of the grounds for overcoming the natural-

parent presumption had been established,” but he did find that, “on the ‘unique’ facts of this

case, Daniel ‘stands in the place of a natural parent for purposes of custody of Justice.’”Id.

¶16.   Welton relied upon two Supreme Court cases, Griffith v. Pell and J.P.M. v. T.D.M.,

for guidance. While the facts in Pell and J.P.M. vary slightly from the facts in Welton, the

Court of Appeals appropriately extended the reasoning in those cases to apply to Welton,

and, we find that the same principles apply to the present case. In Pell, as discussed in



                                              6
Welton, this Court held that “a husband who learned during divorce proceedings that he was

not the biological father of a child born just prior to the marriage could be granted visitation

and, custody over the objections of his wife (the child’s mother).” Id. at 745 (citing Griffith

v. Pell, 881 So. 2d 184, 185-87 (Miss. 2004)). Moreover, as discussed in Welton, in J.P.M.,

this Court “affirmed an order granting custody to a husband who had learned during divorce

proceedings that he was not the biological father of a child born to the marriage” because

“[h]e was deemed the ‘father in fact’ and was not required to present additional evidence to

rebut the natural parent presumption.” Id. (citing J.P.M. v. T.D.M., 932 So. 2d 760, 762-70

(Miss. 2006)).

¶17.   This Court reasoned in both Pell and J.P.M.

       that the natural-parent presumption had been overcome based on several facts:
       (1) the husbands stood in loco parentis; (2) they had supported, cared for, and
       treated the child as their own; (3) they could have been required to pay child
       support (“with the burden should go the benefit”); and (4) the biological
       fathers were not really in the picture: the one in Pell had disclaimed any
       interest in the child and had agreed to relinquish his parental rights, while the
       one in J.P.M. could not even be determined conclusively.

Id. (quoting Waites, 152 So. 3d at 312).

¶18.   In Welton, the Court of Appeals found that the facts necessary to overcome the

natural-parent presumption were present but questioned whether the facts were sufficient to

place Daniel in the position of a natural parent for purposes of Justice’s custody because

Daniel had not been defrauded like the fathers in Pell and J.P.M. Id. at 747.

¶19.   Welton held, “although the relevant Supreme Court decisions do not directly address

the unique facts of this case, Pell’s reasoning and Waites’s emphasis on whether the



                                               7
biological father is ‘really in the picture’ are instructive and should control.” Id. “[T]he

mere existence of a biological father who abandoned a child years ago should not be used ‘to

defeat an existing father-child relationship when [that] biological father [is not] seeking to

assume care, support and nurturance of the child.’” Id. (alterations in original) (quoting Pell,

881 So. 2d at 187). The mother led Justice to believe that Daniel was her father and

confirmed that Justice’s biological father had abandoned her at birth. Therefore, the Welton

court affirmed the chancellor, who had found “that Pell and subsequent Supreme Court

decisions provided legal authority to grant physical custody of Justice to Daniel.” Id. at 748.

¶20.   Welton logically extended the principles articulated in Pell and J.P.M.. The unique

facts of Welton—allowing an in loco parentis figure to have custody—also are present here.

There was no question that Marshall acted in loco parentis to Jill. Further, the trial court’s

in loco parentis finding was neither raised as an issue on appeal nor was it overturned by the

appellate court in Ballard.

¶21.   Marshall always supported, cared for, and treated Jill as his own child, even though

he knew she was not his biological child. Candice concedes that Marshall has always

provided for Jill, as he did for John and Jane. She admitted even that Marshall is the only

father Jill has ever known. Further, no evidence was presented that Candice sought support

of Jill from the biological father. In fact, the biological father received notice of the hearing

and did not attend, nor has he ever attempted to visit or to support Jill. It is clear that the

biological father is absent.




                                               8
¶22.   Lastly, Candice argues that Welton is both distinguishable and predates this Court’s

ruling in Miller v. Smith, 229 So. 3d 100 (Miss. 2017). This Court finds, however, that the

facts of Miller are dissimilar. There, the Court found that the circumstances did not give

Miller in loco parentis status. Miller, 229 So. 3d at 105. Miller had been sentenced to prison

for eighteen months when the minor child, Smitty, was only a few months old. Id. at 104.

After prison, Miller did not remain a constant in Smitty’s life. Id. Miller provided no

financial assistance to Smitty, nor did he visit Smitty while his mother was in prison during

2012 and 2013. Id. Therefore, Miller did not rebut the natural-parent presumption, and the

Court found substantial evidence in the record to support the chancellor’s conclusion that

Miller did not stand in loco parentis. Id. at 104-105.

¶23.   Accordingly, this Court finds that the chancellor appropriately held that custody of Jill

could be awarded to Marshall pending an Albright analysis.

       III.   Whether the chancellor erred in the Albright analysis.

¶24.   “In child custody cases, the polestar consideration is the best interest of the child, and

this must always be kept paramount.” Lee v. Lee, 798 So. 2d 1284, 1288 (Miss. 2001) (citing

Sellers v. Sellers, 638 So. 2d 481, 485 (Miss.1994)).

       To help guide us to a proper determination as to custody, the court considers
       the following factors in determining the child’s best interests: (1) age, health
       and sex of the child; (2) a determination of the parent that has had the
       continuity of care prior to the separation; (3) which has the best parenting
       skills and which has the willingness and capacity to provide primary child
       care; (4) the employment of the parent and responsibilities of that employment;
       (5) physical and mental health and age of the parents; (6) emotional ties of
       parent and child; (7) moral fitness of the parents; (8) the home, school and
       community record of the child; (9) the preference of the child at the age
       sufficient to express a preference by law; (10) stability of home environment

                                               9
       and employment of each parent and other factors relevant to the parent-child
       relationship.

Id. (citing Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983)).

¶25.   “While the Albright factors are extremely helpful in navigating what is usually a

labyrinth of interests and emotions, they are certainly not the equivalent of a mathematical

formula. Determining custody of a child is not an exact science.” Id. Candice argues that the

chancellor failed to address each of the factors with specificity. We disagree and find that

the chancellor’s findings are supported by substantial evidence. “Where the chancellor

properly considers and applies the Albright factors, the appellate court cannot say the

chancellor is manifestly wrong; such careful consideration and application by the chancellor

precludes reversal on appeal.” Jerome, 689 So. 2d at 757 (citing Smith v. Smith, 614 So. 2d

394, 397 (Miss. 1993)).

¶26.   Because Candice contends that the chancellor did not apply the Albright factors with

specificity, we review the chancellor’s analysis to see if he committed manifest error.

       1) Age, Health, and Sex of the Child

¶27.   The three minors, two who are females and one who is male, are healthy, intelligent

children between the ages of six and eleven. The chancellor found that the son can benefit

from a strong male influence in his life and that the daughters can benefit from a strong

female influence. Because of these facts, the chancellor agreed with the guardian ad litem,

who recommended that the factor favored neither Marshall nor Candice.

       2) Continuity of care




                                              10
¶28.     Although the children have been in neither party’s custody since shortly after the

original trial, the evidence reflects that both parents had been greatly involved before in the

children’s day-to-day care. Thus, the continuity-of-care factor is neutral.

         3) Best parenting skills and willingness to provide primary child care

¶29.     While the guardian ad litem found that the willingness factor favored Candice, that

the capacity factor favored Marhsall, and that the parenting-skills factor favored both parties,

overall, the chancellor found that both factors favored Marshall, who had raised Jill as his

own even though he knew the situation of her birth. While he has paid child support as

directed by the Department of Human Services, Candice has not. Additionally, he has moved

in order to be closer to the children.

         4) Employment of the parties and responsibilities of that employment

¶30.     The chancellor found that the employment factor favored Marshall because of his

flexible work schedule and his ability to work from home. While Candice is employed, she

chooses to maintain part-time employment, causing her to live in poverty.

         5) Physical and mental health and age of the parties

¶31.     Neither party has any infirmities or an age gap that would hinder their care for the

children, so the chancellor found the physical-and-mental-health factor to be neutral, and we

agree.

         6) Emotional ties of the parties and child

¶32.     The chancellor noted that the children are loved equally by both parents, and found

the emotional-ties factor to be neutral. We agree.



                                              11
         7) Moral fitness of the parties

¶33.     The court disagreed with the guardian ad litem, who had found that the moral fitness

factor favored Candice. The chancellor found that, while “[n]either of the parties should be

ecstatic about the light of morality shining upon them,” Marshall has made remarkable

progress, while Candice has continuously denied responsibility for her actions. We agree.

         8) Home, school, and community record of the child

¶34.     The chancellor found that Marshall and Candice are both active in church and have

positive support systems at home. Thus, this factor is neutral.

         9) Preference of the child

¶35.     The chancellor properly found that the preference-of-the-child factor to be

inapplicable because the children have not reached the age of twelve, which would allow

them to testify about their preference. Miss. Code Ann. § 93-11-65(1)(a) (Rev. 2018). We

agree.

         10) Stability of home environment and employment

¶36.     The chancellor found that both parties have positive home environments. Marshall

changed his residence to be closer to the children, and Candice has a supportive husband at

home.

         11) Other factors

¶37.     While “there is no requirement that the Court defer to the findings of the guardian ad

litem,” “when a chancellor’s ruling is contrary to the recommendation of that statutorily

required guardian ad litem,” “the reasons for not adopting the recommendation . . . [should]



                                               12
be stated by the Court in its opinion.” Porter v. Porter, 23 So. 3d 438, 449 (Miss. 2009)

(internal quotation marks omitted) (quoting S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (Miss.

2000)). Although the chancellor mostly agreed with the guardian ad litem’s report, he failed

to understand why her testimony changed from the first trial to the second.

¶38.   The guardian ad litem changed her recommendation despite finding 1) that Marshall’s

conduct had improved more dramatically than Candice’s had; 2) that Marshall had obediently

paid support as ordered, while Candice never voluntarily paid anything; and 3) that Candice’s

testimony and interview questions were questionably truthful.

¶39.   While the chancellor acknowledged “that in the absence of some unusual and

compelling circumstances dictating otherwise, it is not in the best interest of children to be

separated,” unusual circumstances do exist here that justify not keeping the siblings together.4

Sellers v. Sellers, 638 So. 2d 481, 484 (Miss. 1994) (quoting Sparkman v. Sparkman, 441

So. 2d 1361, 1362 (Miss. 1983)). The chancellor found that placing three more children in

the mother’s home under the financial circumstances that exist simply to keep the siblings

together would not serve the children’s best interest.

¶40.   Accordingly, the chancellor found that the best interest of the children would be

served by placing them in the full care, custody, and control of Marshall, subject to a

visitation schedule for Candice. In considering the Albright factors, the chancellor was

within his discretion in finding that the factors favored Marshall.

                                      CONCLUSION

       4
        Candice has seven children and argued that John, Jane, and Jill should be kept with
their other siblings.

                                              13
¶41.   Because the chancellor did not exceed the scope of the instructions on remand or err

in awarding custody of the three minor children to Marshall, we affirm. The chancellor was

within his discretion in finding that Marhsall’s in loco parentis status entitled him to be on

equal footing with Candice in the custody determination about Jill. As to Marshall’s two

biological children, we cannot say the chancellor was manifestly wrong in his Albright

analysis.

¶42.   AFFIRMED.

      RANDOLPH, C.J., KING, P.J., CHAMBERLIN, ISHEE AND GRIFFIS, JJ.,
CONCUR. MAXWELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN
OPINION JOINED BY RANDOLPH, C.J., BEAM, CHAMBERLIN AND GRIFFIS,
JJ. COLEMAN, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE
WRITTEN OPINION. KITCHENS, P.J., NOT PARTICIPATING.

       MAXWELL, JUSTICE, SPECIALLY CONCURRING:

¶43.   I agree this case should be affirmed based on the special application of the in loco

parentis doctrine established in Griffith v. Pell, 881 So. 2d 184 (Miss. 2004), and J.P.M. v.

T.D.M., 932 So. 2d 760 (Miss. 2006). I write to point out that recently, in In re Waites v.

Ritchie, 152 So. 3d 306, 314 (Miss. 2014), this Court muddied the water quite a bit over

application of the in loco parentis doctrine. In Waites, this Court held the Court of Appeals

in error for applying Pell and J.P.M. to find a presumed father’s in loco parentis status put

him on equal footing with the biological parents. Id. at 311-14. And this Court used strong

language that indicated the Pell and J.P.M. exception to natural-parent presumption may no

longer be viable. The Waites opinion emphatically concluded that, “[u]nder the present state

of the law, in the absence of rebutting the natural-parent presumption via clear and



                                             14
convincing evidence of abandonment, desertion, immoral conduct detrimental to the child,

and/or unfitness, ‘the court may not consider granting custody to a third party, including one

standing in loco parentis . . . .’” Id. at 314 (quoting Davis v. Vaughn, 126 So. 3d 33, 37

(Miss. 2013)). I find that case went too far.

¶44.   Here, I concur with the majority to the extent it backs away from the strong language

in Waites and reaffirms Pell and T.D.M.’s holding that, under unique circumstances like

these, a nonbiological parent’s in loco parentis status can be used to reach an Albright

custody analysis without having to first rebut the natural-parent presumption.

     RANDOLPH, C.J., BEAM, CHAMBERLIN AND GRIFFIS, JJ., JOIN THIS
OPINION.




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