There are many situations where grandparents take care of grandchildren due to drug use or another irresponsibility on the part of the parents of the children. These caretakers may want to obtain legal custody. The case law is clear on this subject. In custody battles between a natural parent and a third party, it is presumed that it is in the child’s best interest to remain with his or her natural parent. To be awarded custody, therefore, the grandparent or another third party must first clearly rebut the natural-parent presumption or preference. If it is successfully rebutted, the chancellor must then examine the case to determine whether third-party custody serves the best interests of the child.
The natural-parent presumption can be rebutted by a clear showing that:
- the parent has abandoned the child;
- the parent has deserted the child;
- the parent’s conduct is so immoral as to be detrimental to the child; or
- the parent is unfit, mentally or otherwise, to have custody.
It is not enough to show that the grandparents or third party have been serving as the parents, a situation referred to in the law as, “in loco parentis.” In the absence of formal legal approval, taking care of children for the parents is deemed temporary in character and is not to be likened to an adoption which is permanent.