IN THE SUPREME COURT OF MISSISSIPPI

NO. 2012-CT-00884-SCT

IN THE INTEREST OF A MINOR VICTORIA

DENISE WAITES: JEFFREY SCOTT WAITES

v.

AMY MARIE WAITES RITCHIE AND

TIMOTHY J. SANFORD

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 03/21/2012

TRIAL JUDGE: HON. JOHNNY LEE WILLIAMS

TRIAL COURT ATTORNEYS: WILLIAM L. PEEBLES

ROBERT R. MARSHALL

GEORGE H. GUNTER

COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: S. CHRISTOPHER FARRIS

ATTORNEYS FOR APPELLEES: GEORGE H. GUNTER

ROBERT R. MARSHALL 

NATURE OF THE CASE: CIVIL - CUSTODY

DISPOSITION: THE JUDGMENT OF THE COURT OF

APPEALS IS REVERSED AND THE

JUDGMENT OF THE LAMAR COUNTY

CHANCERY COURT IS REINSTATED AND

AFFIRMED - 12/11/2014

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

PIERCE, JUSTICE, FOR THE COURT:

¶1. This appeal stems from a petition made by Amy Waites Ritchie (“Amy”) to modify

a custody agreement created by Jeffrey Scott Waites (“Scott”) and herself following their
This case previously was designated confidential in error, and after approval from 1

all parties at oral argument before this Court, the matter is now no longer styled as such. In

the Court of Appeals’ opinion below Amy was referred to as “Anne,” Scott was “Jake,” T.J.

was “Tommie,” Victoria was “Vanessa,” and Brackston was “Brett.” See J.S.W. v. A.W.S.

and T.J.S., So. 3d , 2013 WL 6231797.

See Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983) (“We reaffirm the rule 2

that the polestar consideration in child custody cases is the best interest and welfare of the

child. The age of the child is subordinated to that rule and is but one factor to be considered.

Age should carry no greater weight than other factors to be considered, such as: health, and

sex of the child; a determination of the parent that has had the continuity of care prior to the

separation; which has the best parenting skills and which has the willingness and capacity

to provide primary child care; the employment of the parent and responsibilities of that

employment; physical and mental health and age of the parents; emotional ties of parent and

child; moral fitness of parents; the home, school and community record of the child; the

preference of the child at the age sufficient to express a preference by law; stability of home

environment and employment of each parent, and other factors relevant to the parent-child

relationship.”)

2

divorce two years earlier. Amy petitioned for modification, seeking to move with her two 1

children to Iowa, as Amy planned to remarry there. Although Amy and Scott had agreed to

joint physical and legal custody, Amy’s proposed move to Iowa would make the provisions

of the agreement unworkable. After initiating the petition, Amy contacted T.J. Sanford

(“T.J.”) to let him know she believed him to be her eldest child’s biological father;

subsequently, a DNA test proved T.J.’s paternity and he joined the matter seeking custody.

¶2. After excluding Scott from consideration under Albright as a non-natural parent, the 2

presiding chancellor awarded full physical and legal custody to Amy rather than T.J. The

chancellor allowed visitation for both Scott and T.J., with respect to the eldest child. Scott

appealed the court’s order, and the Court of Appeals reversed. Finding Scott’s fatherly

actions did rebut the natural-parent presumption afforded to Amy and T.J., the Court of

Appeals found Scott should have been considered on equal footing with the natural parents.
J.S.W. v. A.W.S. and T.J.S., _ So. 3d _, 2013 WL 6231797, at *1 (Miss. Ct. App. 3

Dec. 3, 2013). 

As the chancery court noted, Scott “was present when [Victoria] was born, . . . cut 4

[Victoria’s] umbilical cord, and . . . even helped to name her.” 

3

The Court of Appeals remanded this case to the chancery court with instructions to consider

Scott under Albright. Amy and T.J. filed a writ of certiorari, which this Court granted. We

3

find the chancellor properly excluded Scott from consideration under Albright. Accordingly,

we reverse the Court of Appeals’ decision and reinstate and affirm the judgment of the

chancery court.

FACTS AND PROCEDURAL HISTORY

¶3. In 2004, seventeen-year-old Amy began dating twenty-one-year-old Scott. But, during

this period, Amy also had a brief relationship with T.J. In July 2004, Amy and Scott were

married, and on December 16, 2004, Amy gave birth to Victoria. Initially, Scott believed

Victoria was his child. Thereafter, Amy and Scott had a child together, Brackston. 

4

¶4. In March 2007, T.J.’s mother contacted Amy, informed her that T.J. was about to be

deployed with the military, and questioned whether T.J. was Victoria’s father. Amy denied

that Victoria was T.J.’s daughter, but Scott overheard the conversation. On March 16, 2007,

Scott had a DNA test performed which confirmed that he was not Victoria’s biological

father. Nevertheless, Amy and Scott decided not to disclose Victoria’s paternity, and that

Scott would continue to raise her as his own child. 

¶5. On December 15, 2009, the chancery court entered an Agreed Judgment of Divorce

as to Amy and Scott. The divorce judgment provided, in pertinent part, that “there were two

minor children born unto the parties,” Victoria and Brackston, and that “[t]he minor children
4

have been in the care, control and custody of” Amy and Scott. The parties were granted joint

legal and physical custody of the minor children, with custodial time divided on a week-toweek basis. Both Amy and Scott certified they were Victoria and Brackston’s biological

parents, although both Amy and Scott knew this to be untrue, as the March 2007 DNA had

test confirmed Scott was not Victoria’s father.

¶6. Following the divorce, Amy married a man known as “Mr. Ritchie.” The marriage

lasted a few months, from May 2010 to December 2010. After divorcing Ritchie, Amy

began a relationship with Nick Rhods and planned to move to Iowa with both children, where

Rhods lived, after marrying him. On January 17, 2011, Amy contacted T.J. regarding the

possibility that he was Victoria’s father. On January 28, 2011, Amy sued T.J. for support.

After a DNA test revealed a 99.999% probability that T.J. was Victoria’s biological father,

T.J. filed a Motion for Custody, Visitation and Paternity with respect to Victoria, on March

3, 2011. Then, in November of 2011, Amy initiated a Petition for Modification of the 2009

custody agreement made by Scott and herself, so that she could move the children out of

state. Scott opposed.

¶7. On March 23, 2012, the chancery court entered its Findings of Fact, Conclusions of

Law and Final Judgment. According to the chancery court, Amy, Scott, and T.J. “all seek

to have primary physical custody of [Victoria].” The chancery court found, in pertinent part,

that:

[g]iven the testimony presented at trial, [T.J.] had to have known that there was

a possibility that he may have been the father of [Victoria], especially when he

heard [Amy] was pregnant, and calculated the months in his mind. The [c]ourt

also recognizes that [T.J.] did little to nothing to inquire or otherwise try to

involve himself in the life of a child that could have been his. However, the
5

[c]ourt does not find that [T.J.’s] conduct met the criteria for abandonment as

set out in Sellers [v. Sellers, 638 So. 2d 481 (Miss. 1994)]. After weighing the

rest of the factors set out in Sellers, it would seem that [T.J.] has not engaged

in conduct that was overly immoral so as to be a detriment to [Victoria], nor

does he appear to be one who is unfit to raise a child, especially since he is

currently raising his son from a previous relationship.

. . .

Although In re Leverock[, 23 So. 3d 424 (Miss. 2009),] differs from the case

at hand, in that [T.J.] has not “chosen to take an extended holiday from

parenthood,” the circumstances are quite similar. Here, [Victoria] has been

living with the idea that [Scott] is her biological father her entire life. She has

remained in the care and custody of both [Scott] and [Amy] for the past seven

years, and has been thriving. According to the holding of Leverock, the

[c]ourt cannot now arbitrarily remove [Victoria] from the care and custody of

[Scott] and [Amy], just based on [T.J.’s] right as a natural parent.

Leverock is distinguishable in another important way, and that is that we have

both natural parents vying for the custody of [Victoria]. The [c]ourt’s analysis

does not ignore any and all rights that [Scott] may have to [Victoria] under in

loco parentis.

. . .

Neither [T.J.] nor [Amy] have done anything to warrant this [c]ourt to deem

them unfit to raise their daughter, [Victoria]. [Scott] discovered that [Victoria]

was not his biological child in 2007. At that time he had reason to know, or

at least should have known, that there was a natural father out there

somewhere. However, rather than seek [T.J.] out, [Scott] chose to take no

action for the sake of keeping his family together, and continued to support

and care for [Victoria]. The [c]ourt finds this to be quite admirable. As such,

[Scott] has been effectively acting in loco parentis . . . . To phase [Scott]

entirely out of [Victoria’s] life would be certainly detrimental to her well

being. . . . [Scott] is therefore entitled to visitation rights to [Victoria]. The

[c]ourt, however, must now decide who should be entitled to physical custody

of [Victoria] as between the child’s natural parents, [Amy] and [T.J.].
 The chancellor did not modify custody with respect to Brackston, which Amy and 5

Scott share.

6

After conducting an Albright analysis as to Victoria’s natural parents, the chancery court

concluded that it would be in Victoria’s “best interest” for Amy to “retain full legal and

physical custody . . . , subject to visitation of both [T.J.] and [Scott].”5

¶8. Thereafter, Scott filed a Motion to Set Aside Judgment or in the Alternative to

Reconsider the Findings of Fact, Conclusions of Law and Final Judgment and for

Modification of the Final Judgment. Scott argued that the chancery court failed to consider

him, “who was found to be the father in loco parentis, in the Albright factors[,]” along with

Amy and T.J.. The chancery court denied Scott’s motion. According to the chancery court,

Scott was not entitled to physical-custody consideration in the Albright analysis because he

failed to prove that Amy and T.J. “were unfit,” and the Albright analysis for primary physical

custody would consider only Amy and T.J. 

¶9. Finding that neither Amy nor T.J., as the child’s biological parents, was “unfit” to

raise Victoria, Scott, who had “effectively act[ed] in loco parentis[,]” was entitled only to

visitation rights. Following the Albright analysis, the chancery court concluded that it would

be in Victoria’s “best interest” for Amy to “retain full legal and physical custody . . . , subject

to visitation of both [T.J.] and [Scott].” Thereafter, the chancery court denied Scott’s Motion

to Reconsider. Scott then appealed.

¶10. The Mississippi Court of Appeals described this as “a three-way custody action

between (1) the natural mother (“Amy”), (2) the mother’s ex-husband (“Scott”), who had

supported, cared, and treated the child as his own, and (3) the man who turned out to be the
Maxwell, J., writing. Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts and 6

Fair, JJ., concur. James, J., concurs in part and dissents in part without separate written

opinion. Carlton, J., not participating.

7

child’s biological father (“T.J.”).” J.S.W., 2013 WL 6231797, at *1. The Court of Appeals

reversed the judgment awarding custody to Amy, and remanded “for the chancery court to

conduct an Albright analysis that takes into consideration whether it would be in the child’s

best interest for [Scott] to be awarded custody.” See J.S.W., 2013 WL 6231797, at **1, 6. 6

The Court of Appeals determined that:

in this “very limited, unique situation,” the fact [Scott] stood in loco parentis

by his fatherly actions towards the child does rebut the natural parent

presumption. Thus, the chancellor erred by not considering [Scott] on equal

footing with [Amy] and [T.J.] when determining which of the three should be

awarded custody.

Id. at *1 (quoting Smith, 97 So. 3d 43, 47 (Miss. 2012)) (emphasis in original). On June 3

and June 10, 2014, the Court of Appeals’ denied the motions for rehearing filed by Amy and

T.J.

ANALYSIS

I. Whether the Court of Appeals’ decision is contrary to existing law.

¶11. The Court of Appeals held that the chancery court “applied the wrong legal standard.”

J.S.W., 2013 WL 6231797, at *3. According to the Court of Appeals:

[t]he chancellor found that Scott stood in loco parentis to Victoria; that he had

supported, cared, and treated her as his own child, even after he learned about

her biological parentage; and that he had shared her custody and expenses after

the divorce. This put Scott in a “very limited, unique situation[,]” where his

supportive actions towards the child – versus the natural parent’s harmful

actions – rebutted the natural-parent presumption.
8

Id. (quoting Smith, 97 So. 3d at 47). Relying upon Griffith v. Pell, 881 So. 2d 184 (Miss.

2004), and J.P.M. v. T.D.M., 932 So. 2d 760 (Miss. 2006), the Court of Appeals found that

“the doctrine of in loco parentis has been used to put the presumed father on equal footing

with the natural parent.” J.S.W., 2013 WL 6231797, at **4-5. According to the Court of

Appeals, “[t]he only difference between this case and Pell and J.P.M. is that, in those cases,

the natural father either disclaimed any rights to the child or could not be conclusively

established.” Id. at *5. By the Court of Appeals’ estimation, Scott “overc[a]me the naturalparent presumption,” and “should have been considered on equal footing with Amy and T.J.

in the chancellor’s Albright analysis.” Id. at *6.

¶12. Amy and T.J. assert that:

in a custody dispute between one standing in loco parentis and a natural

parent, the parent is entitled to custody unless the natural parent presumption

is rebutted. The court may not consider granting custody to a third party,

including one standing in loco parentis[,] unless and until the third party rebuts

this presumption.

According to Amy and T.J., the “three-way Albright analysis” contemplated by the Court of

Appeals should not be undertaken “until the natural parent presumption is overcome by a

finding of unfitness . . . .” They added that “[i]f this law is going to be changed, the change

needs to be initiated by” this Court. 

¶13. “A chancellor’s custody decision will be reversed only if it was manifestly wrong or

clearly erroneous, or if the chancellor applied an erroneous legal standard.” Smith, 97 So.

3d at 46. Scott’s argument, accepted by the Court of Appeals, is that in his role “as in loco

parentis[,] [he] did not have to rebut the natural parent presumption. He had just as much

right to custody of [Victoria] as did [T.J.] and [Amy].” In other words, as stated by the Court
See id. at 34-35 (citing Smith, 97 So. 3d at 43). 7

9

of Appeals, the chancery court “applied the wrong legal standard.” J.S.W., 2013 WL

6231797, at *3.

¶14. Recently, in Davis v. Vaughn, 126 So. 3d 33 (Miss. 2013), which involved a custody

dispute between a natural father anda maternal grandmother, this Court affirmed that a third

party’s in loco parentis status, standing alone, could not rebut the natural-parent

presumption. According to this Court, “[i]n loco parentis status carries with it the same 7

duties and liabilities that belong to a natural parent, including a right to custody of the child

‘as against third persons.’” Davis, 126 So. 3d at 37 (quoting Farve v. Medders, 128 So. 2d

877, 879 (Miss. 1961)) (emphasis in original). But, in custody disputes involving natural

parents, the natural-parent presumption may only “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.’” Davis, 126 So. 3d at 37 (quoting Smith, 97

So. 3d at 46). So:

in a custody dispute between one standing in loco parentis and a natural

parent, the parent is entitled to custody unless the natural-parent presumption

is rebutted. The court may not consider granting custody to a third party,

including one standing in loco parentis, unless and until the third party rebuts

this presumption. In other words, “[t]he doctrine of in loco parentis does not,

by itself, overcome the natural-parent presumption,” although it may be a

factor in determining whether the presumption has been rebutted.
See also Leverock, 23 So. 3d at 431; Sellers, 638 So. 2d at 485 (quoting Moody v. 8

Moody, 211 So. 2d 842, 844 (Miss. 1968)) (“it is the strong policy of the law of this State

that a child shall remain in the custody of one of the parents unless there has been a clear

showing that both are unfit”). 

See also Leverock, 23 So. 3d at 431 (“If the court finds one of these factors has been 9

proven, then the presumption vanishes, and the court must go further to determine custody

based on the best interests of the child through an on-the-record analysis of the Albright

factors”).

10

Davis, 126 So. 3d at 37 (quoting Smith, 97 So. 3d at 46-47) (internal citations omitted)

(emphasis added). This Court added that “[i]f the natural-parent presumption is successfully 8

rebutted, the court may then proceed to determine whether an award of custody to the

challenging party will serve the child’s best interests.” Davis, 126 So. 3d at 37 (citing Smith,

97 So. 3d at 46).9

¶15. Smith involved a custody dispute between a child’s grandparents and his natural

parents. Smith, 97 So. 3d at 44. According to this Court, “a natural parent loses the legal

presumption that custody should be with him or her only if there has been a clear showing

of abandonment, desertion, or unfitness on the part of the parent. The Albright factors are

not considered unless such showing has first been made.” Id. (internal citations omitted)

(emphasis added). In so holding, this Court emphasized that “[t]he doctrine of in loco

parentis does not, by itself, overcome the natural-parent presumption.” Id. at 46-47. And

this Court specifically referenced the decisions relied upon by the Court of Appeals in the

case sub judice (i.e., Pell and J.P.M.). See id. at 47. According to this Court:

[i]n loco parentis can – in very limited, unique situations – sometimes be used

to help rebut the natural-parent presumption. In both Pell and J.P.M., a

husband learned during the pendency of divorce proceedings that he was not

the biological father of a child born of, or just prior to, the marriage. In those

cases, we reasoned that the natural-parent presumption had been overcome
J.P.M. indicated that the “legal father” since the child’s birth, who had supported

10

the child under the assumption that he was her natural father and had sustained a “strong

father-daughter relationship[,]” was her “father in fact[,]” with “legal rights and obligations”

different from those of other third parties (e.g., aunts, grandparents). J.P.M., 932 So. 2d at

768-70. It is unclear whether the rights afforded were truly custody rights, or whether they

were mere visitation rights, but it appears the latter was intended, as this Court ultimately

affirmed the chancery-court judgment in J.P.M. Additionally, the chancellor in the case sub

judice interpreted J.P.M. as providing solely for visitation. See Griffith, 881 So. 2d at 186,

(“[M]erely because another man was determined to be the minor child’s biological father

does not automatically negate the father-daughter relationship held by [the in loco parentis

father] and the minor child.”)

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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.

Though in loco parentis was considered in Pell and J.P.M., those cases do not

support – nor have we ever suggested – that in loco parentis alone can rebut

the natural-parent presumption.

Id. (internal citations omitted) (emphasis added).

¶16. However, Smith also included the following footnote:

[i]n Pell, we reversed the chancellor’s termination of the husband’s parental

rights and remanded the case for a best-interest Albright analysis; thus, we

implicitly found that the natural-parent presumption had been overcome. And

in J.P.M., we relied on Pell to affirm the chancellor’s decision to award

physical custody to the husband. In doing so, we specifically rejected the

wife’s argument that the chancellor had not had the authority to award

custody to the husband without first finding that she had abandoned the child,

that her conduct was immoral as to be detrimental to the child, or that she was

mentally or otherwise unfit for custody.[ ]

10

Smith, 97 So. 3d at 47 n.3 (internal citations omitted) (emphasis added). And while this

Court further noted Presiding Justice Cobb’s “well-taken” special concurrence in J.P.M.,

which critiqued the majority for “us[ing] in loco parentis to strip custody from [a natural
See Davis, 126 So. 3d at 37 (quoting Smith, 97 So. 3d at 46). 11

See Davis, 126 So. 3d at 34-35, 37 (“a third party’s in loco parentis status, standing 12

alone, could not rebut the natural-parent presumption”; at most, in loco parentis “may be a

factor in determining whether the presumption has been rebutted”); Smith, 97 So. 3d at 47

(“[i]n loco parentis can – in very limited, unique situations – sometimes be used to help rebut

the natural-parent presumption”; Pell and J.P.M. “do not support – nor have we ever

suggested – that in loco parentis alone can rebut the natural-parent presumption”).

12

parent][,]” it added that Pell and J.P.M. “are limited to their unique facts[,]” and that “in loco

parentis was just one of the factors that influenced the Court’s decision in those cases.”

Smith, 97 So. 3d at 47 n.4 (quoting J.P.M., 932 So. 2d at 781 (Cobb, P.J., specially

concurring)).

¶17. This Court does not find, per the Court of Appeals’ conclusion, that the chancery court

applied the wrong legal standard. J.S.W., 2013 WL 6231797, at *3. This Court has stated

that the grounds for rebutting the natural-parent presumption involve negative

actions/dispositions of the natural parents in relation to the child (i.e., abandonment,

desertion, immoral conduct detrimental to the child, unfitness). And the chancery court’s 11

finding, which was not challenged on appeal by Scott or in the Court of Appeals decision,

was that Amy and T.J. had not conducted themselves in such a manner as to rebut the

natural-parent presumption. Yet, the Court of Appeals determined that Scott’s positive,

“supportive[,]” “fatherly actions” operated to rebut the natural-parent presumption and placed

him on “equal footing” with Amy and T.J. for purposes of an Albright analysis. J.S.W.,

2013 WL 6231797, at **1, 3. This Court does not find that the Court of Appeals’ position

is congruent with the present state of the law. 

12
 T.J. testified, “[Scott] can have visitation . . . [w]hen he goes and picks up 13

[Brackston], his son, he can visit with my daughter . . . because I’m the father.”

13

¶18. The facts of this case strike this Court as somewhat distinguishable from the “unique

facts” in Pell and J.P.M. Unlike those cases, in which “the biological fathers were not really

in the picture[,]” here, upon confirming that Victoria was his daughter, T.J. instituted custody

proceedings. Also, the fact remains that, as early as March 2007, Scott was aware that he

was not Victoria’s biological father, yet in the 2009 divorce proceedings, both he and Amy

actively purported his paternity to the chancery court. Moreover, in Pell, the in loco parentis

party had support from the biological father, who sought to wholly relinquish his parental

rights and transfer them to the nonbiological father via adoption. 

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

[the in loco parentis party and the biological father] filed a motion for

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

child arguing . . . 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.

Pell, 881 So. 2d at 185. Unlike the biological father in Pell, in this action, the biological

father not only sought custody, but did so to the exclusion of the in loco parentis party. For 13

reasons unknown, the chancellor in Pell denied the natural and in loco parentis fathers’

requests for what was, essentially, an intended adoption. And it appears from Smith that this

Court found the presumption rebutted by the exception created in Pell, based upon what the

biological father wanted. 
14

¶19. Under the present state of the law, in the absence of rebutting the natural-parent

presumption via clear and convincing evidence of abandonment, desertion, immoral conduct

detrimental to the child, and/or unfitness, “[t]he court may not consider granting custody to

a third party, including one standing in loco parentis . . . .” Davis, 126 So. 3d at 37 (quoting

Smith, 97 So. 3d at 46-47). 

¶20. We find the chancellor’s determination in this case to be correct, given the controlling

law discussed above. 

CONCLUSION

¶21. We find the chancellor applied the correct legal standard, and, on this basis, we

reverse the Court of Appeals’ decision. Absent a finding that the natural parents had

abandoned, deserted, or were unfit to rear their child, the chancellor properly conducted the

requisite analysis for custody and thereby properly excluded the in loco parentis party from

consideration. Accordingly, we reverse the Court of Appeals’ decision and reinstate and

affirm the judgment of the Lamar County Chancery Court.

¶22. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE

JUDGMENT OF THE LAMAR COUNTY CHANCERY COURT IS REINSTATED

AND AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,

CHANDLER, KING AND COLEMAN, JJ., CONCUR.