Lauren Lee v. Beau Bramlett ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CA-01202-COA
LAUREN LEE APPELLANT
v.
BEAU BRAMLETT APPELLEE
DATE OF JUDGMENT: 08/08/2017
TRIAL JUDGE: HON. M. RONALD DOLEAC
COURT FROM WHICH APPEALED: LAMAR COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: WILLIAM C. WALTER
ATTORNEYS FOR APPELLEE: ROBERT R. MARSHALL
KIMBERLY-JOY LOCKLEY MIRI
NATURE OF THE CASE: CIVIL - CUSTODY
DISPOSITION: AFFIRMED - 02/26/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
BARNES, C.J., FOR THE COURT:
¶1. Lauren Lee and Beau Bramlett are the natural parents of a minor child, Gregory,1 born
out of wedlock in 2010. For the first four years of the child’s life, Lee and Gregory lived
with Bramlett at his residence in Hattiesburg, Mississippi. Bramlett worked offshore for
three-week intervals (twenty-one days on/twenty-one days off); Lee primarily stayed at home
with Gregory but occasionally worked at a part-time job. In May 2015, the couple ended
their relationship, and Lee filed a complaint to establish child custody, seeking child support
and temporary and permanent legal and physical custody of Gregory. Acknowledging he was
1
A fictitious name has been used for the minor child to protect his identity.
the child’s natural father, Bramlett requested emergency custody.
¶2. In a temporary order, the Lamar County Chancery Court adjudicated Bramlett as the
natural father and ordered the parties to share physical custody of Gregory on a week-to-
week basis. Bramlett was ordered to pay Lee monthly child support of $1,000 and to provide
medical insurance for the child. On September 16, 2016, the chancery court appointed
Stacey Sims as the guardian ad litem (GAL). Kristin McGee was later substituted as the
GAL.
¶3. On June 10, 2017, Lee moved to Madison, Mississippi, with her fiancé, Matthew
Pringle, and their newborn daughter so Pringle could start a new job.2 A few days later, Lee
and Pringle were married. Bramlett filed a petition for emergency relief requesting
permanent physical custody of Gregory. A trial was held June 29, 2017, and July 31, 2017.
Lee admitted Gregory had an extensive family-support system in Hattiesburg and was doing
well in his school there. But she argued that she should be given primary physical custody
because she is a stay-at-home mother and that Gregory would do equally well in the Madison
County School District. Lee also noted Bramlett’s work schedule as a reason she should
have custody. Bramlett, who has worked offshore in three-week intervals for fifteen years,
testified that he earned a very good income at his job, enabling him to provide financially for
all of Gregory’s needs. Bramlett also said he could not earn a comparable income if he
changed jobs to be home more often. His parents, who live nearby, testified they would take
care of Gregory when Bramlett was away at work. Bramlett also lived with his fiancée (now
2
Lee had been dating Pringle since she separated from Bramlett in May 2015.
2
wife) who could take care of Gregory.
¶4. The chancery court entered its opinion and final judgment on August 8. Considering
the Albright3 factors in conjunction with the GAL’s report, the court awarded primary
physical custody to Bramlett and joint legal custody to both parties. Lee was granted
visitation every other weekend. Lee appeals the chancery court’s decision. Finding no
manifest error in the court’s ruling, we affirm.
STANDARD OF REVIEW
¶5. “This Court will only reverse a chancery court’s decision ‘if it was manifestly wrong
or clearly erroneous, or if the chancellor applied an erroneous legal standard.’” Mitchell v.
Mitchell, 180 So. 3d 810, 815 (¶6) (Miss. Ct. App. 2015) (quoting Smith v. Smith, 97 So. 3d
43, 46 (¶7) (Miss. 2012)). We review questions of law de novo. Id. (citing Irving v. Irving,
67 So. 3d 776, 778 (¶11) (Miss. 2011)).
DISCUSSION
I. Whether the chancery court erred in disregarding the natural
parent presumption.
¶6. A “bedrock principle of Mississippi family law” is the natural parent presumption,
which gives preference to a child’s natural parents, “even against those who have stood in
their place, honor[ing] and protect[ing] the fundamental right of natural parents to rear their
children.” Neely v. Welch, 194 So. 3d 149, 155 (¶19) (Miss. Ct. App. 2015). It is not
disputed that Bramlett is Gregory’s natural parent. However, Lee argues that because
Bramlett works offshore and must rely on his parents and his wife to care for the child during
3
Albright v. Albright, 437 So. 2d 1003 (Miss. 1983).
3
that time, the chancery court’s ruling essentially constituted “a de facto award of custody
and/or visitation rights to the grandparents over [Lee] who was expressly found to be a fit
parent.”
¶7. Custody was awarded to Bramlett, Gregory’s natural father. Bramlett’s parents were
not a party to this proceeding and have no custody rights under the order. The chancery court
and GAL simply factored the paternal grandparents into the custody analysis because they
volunteered to provide child care when Bramlett is working. There are no Mississippi cases
on point with these facts, but we find instructive a holding by the South Carolina Court of
Appeals. In Brown v. Brown, 606 S.E.2d 785, 791 (S.C. Ct. App. 2004), the court expressly
rejected the principle of “de facto” custody where the father, who was awarded physical
custody, worked long late-night shifts and lived with his parents. Similarly, in Burns v.
Burns, No. COA10-50, 2011 WL 531473, **7-8 (N.C. Ct. App. Feb. 15, 2011), the North
Carolina Court of Appeals found that although the minor children were often in the care of
the paternal grandparents while in the father’s custody, the grandparents had no rights under
the trial court’s order, “much less . . . any kind of ‘de facto custody’ of the minor children or
any other legally enforceable rights.”
¶8. The dissent agrees with Lee, finding that she “should have been favored in a custody
analysis to provide care instead of the paternal grandparents.” Applying the dissent’s
reasoning, no parent who works offshore or out-of-town for extended periods of time would
be granted custody without a finding that the other parent is unfit or has abandoned the child.
We cannot adopt such a general rule as it disregards the chancery court’s responsibility to
4
decide what is in the best interest of the child. Here, it is clear that custody was awarded to
Bramlett, not his parents; therefore, the “natural parent presumption” applies equally to Lee
and Bramlett. And, while the dissent is correct that Gregory lived with Lee for the first six
years of his life, it fails to mention that Bramlett also lived in the home for the first four years
of the child’s life. The record further shows that both parties have extended family living in
the Hattiesburg area; Lee’s move to Madison uprooted Gregory not only from his father, but
also from these close relatives. Bramlett’s mother testified that before Bramlett and Lee
split, she was Gregory’s sole babysitter, stating:
[Gregory] was at our house constantly. I was at [Gregory’s] keeping him, and
I kept [Gregory] even when [Lee] wasn’t in school and – she would go do
things, whatever. No, I kept – he stayed at our home. He has his own rooms
at our home. He has everything he needs. He was there that often.
Bramlett’s father also testified that Gregory had spent a lot of time at their home during the
first four years of his life. Gregory will live with Bramlett for the three-week period when
he is not working. The dissent fails to note that Lee will have visitation with Gregory two
of the three weekends that Bramlett is gone for work and that Gregory will be in school
during the week.
¶9. It is for the chancery court to take all of these factors into account in determining the
best interest of the child; it has done so. We find no merit to this argument.
II. Whether the chancery court erred in accepting the GAL’s
recommendations.
¶10. Although not obliged to follow the GAL’s recommendations, the chancery court
nevertheless found that her report was “supported by the preponderance of the credible
5
evidence presented at trial.” Lee argues that the GAL only spent 5.8 hours working on the
case before compiling her report and failed to comply with Mississippi’s standards governing
a GAL’s investigation. Specifically, Lee says the GAL did not interview key witnesses, such
as Bramlett’s parents, or investigate her complaints regarding Bramlett’s “anger issues and
violent propensities.”
¶11. “The requirements of a [GAL] are that [s]he be ‘competent, without interests adverse
to the child, and . . . adequately informed as to [her] duties.’” R.L. v. G.F., 973 So. 2d 322,
325 (¶11) (Miss. Ct. App. 2008) (quoting S.N.C. v. J.R.D., 755 So. 2d 1077, 1082 (¶16)
(Miss. 2000)). The GAL’s role “is to act as a representative of the court and to assist the
court in protecting the interests of an incompetent person by investigating and making
recommendations to the court.” Id. In appointing the GAL, the chancery court instructed:
Specifically, the [GAL] shall investigate all allegations in the pleadings
concerning custody, visitation, support, and any and all other issues or
concerns affecting the welfare and best interest of the minor child. . . . The
[GAL] may interview the parties and witnesses and participate in discovery
and pretrial preparations in this case as necessary for her investigation.
The Mississippi Supreme Court has held:
In Mississippi jurisprudence, the role of a [GAL] historically has not been
limited to a particular set of responsibilities. In some cases, a [GAL] is
appointed as counsel for minor children or incompetents, in which case an
attorney-client relationship exists and all the rights and responsibilities of such
relationship arise. In others, a [GAL] may serve as an arm of the court—to
investigate, find facts, and make an independent report to the court. The
[GAL] may serve in a very limited purpose if the court finds such service
necessary in the interest of justice. Furthermore, the [GAL’s] role at trial may
vary depending on the needs of the particular case. The guardian ad litem
may, in some cases, participate in the trial by examining witnesses. In some
cases, the [GAL] may be called to testify, and in others, the role may be more
limited.
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S.G. v. D.C., 13 So. 3d 269, 280-81 (¶47) (Miss. 2009).
¶12. We find that the GAL met the requirements set forth by the chancery court. She
reviewed the pleadings, as well as Gregory’s school records. McGee acknowledged at trial
that she did not interview Bramlett’s parents, but she explained: “Regarding the
grandparents, there were no allegations that there was anything unfit about them. There were
no allegations of abuse, neglect, that their home was unsafe, or anything to that matter.” She
interviewed Bramlett’s new wife at the hearing and had no changes to her report or
recommendation. The GAL’s report also referred to Lee’s claim that Bramlett had acted in
a threatening manner toward her. McGee testified at trial:
I met with the parties. I reviewed the municipal court records relating to the
allegations of domestic abuse from [Bramlett] to [Lee]. That matter, from what
I understand, is still pending before the municipal court. . . . But as far as that
goes, I’m going to defer to what the outcome in the court is, and I can’t really
opine either way because I don’t have that full information about that case file.
We find no merit to Lee’s claim that the court erred in accepting the GAL’s
recommendations.4
III. Whether the chancery court erred in awarding custody to
Bramlett.
¶13. Lee disputes the chancery court’s findings in awarding primary physical custody to
Bramlett based on its analysis of the Albright factors and the recommendation by the GAL.
We will address only those Albright factors at issue on appeal.
A. Age, Health, and Sex of the Child
4
As the dissent essentially reiterates Lee’s arguments, we likewise disagree with its
analysis on this issue.
7
¶14. The court found this factor to be neutral because Gregory, at age six, was “well past
the age of tender years” and could be “equally cared for by persons other than the mother.”
See Price v. McBeath, 989 So. 2d 444, 454 (¶39) (Miss. Ct. App. 2008) (“[C]hildren who are
at least four years old may not be subject to the tender years doctrine.”). We find no error
in the court’s finding. Moreover, Lee simply reiterates her argument regarding the “natural
parent presumption,” which we have already found to be without merit.
B. Parenting Skills
¶15. The chancery court found this factor favors Bramlett, noting Lee’s recent move to
Madison to be with her fiancé: “It would appear that [Lee’s] recent move and transferring
[Gregory] to another school was made for the sole purpose of moving closer to her fiancé,
now husband, not what was best for her child.”
¶16. Lee argues that her move was in the child’s best interest and that the court ignored the
fact that Bramlett spends weeks away from Gregory while working. She cites Buntyn v.
Smallwood, 412 So. 2d 236, 237 (Miss. 1982), in which the Mississippi Supreme Court
reversed a chancery court’s denial of a mother’s request for modification of custody. Similar
to the present case, the father worked offshore, and the child was in the care of her
stepmother and grandparents during that time. Id. The mother, who had previously
relinquished custody, had since remarried, was living in “stable environment,” and could be
with the child every day. Id. at 237-38. Decided a year prior to Albright, Buntyn involved
a female child of tender years (age three), and the supreme court held that “if the mother of
a child of tender years—especially a female—is so fit, then she should have custody.” Id.
8
at 238. Under Albright, “the age and sex of a child are merely factors to be considered,” and
“the tender[-]years doctrine has been gradually weakened in Mississippi jurisprudence to the
point of now being only a presumption.” Lee v. Lee, 798 So. 2d 1284, 1289 (¶17) (Miss.
2001). As previously noted, Gregory is not of tender years.
¶17. In Hill v. Hill, 942 So. 2d 207, 213 (¶23) (Miss. Ct. App. 2006), this Court found no
error in a chancery court’s determination that the father had better parenting skills because
he “[made] his life decisions with [his child] as the number one priority at all times.” Here,
although Bramlett has to be away from the child periodically for his job, that job provides
him with the opportunity to provide financial stability for his family. Lee testified that she
had to move to Madison to be with Pringle because she needed his help in raising their
newborn daughter. The chancery court reasoned that while it “appreciate[d] [Lee’s] decision
as to what is best for her, her new daughter, and her new husband[,] . . . the [c]ourt’s
paramount duty is to the best interests of [Gregory] in this case.”
¶18. “No hard and fast rule can be applied to these most difficult of cases.” Buntyn, 412
So. 2d at 238. Affording the chancery court our deferential standard of review, we cannot
conclude that the court’s finding was erroneous.
C. Willingness and Capacity to Provide Primary Child Care
¶19. The chancery court determined this factor favored neither party since Lee had more
time to care for Gregory but Bramlett had a solid family-support system and financial
stability. Lee acknowledges that Gregory has a lot of family in the Hattiesburg area but
argues that her intention to be a “stay-at-home mother” was the “best way to ‘provide
9
primary child care.’” Thus, she contends that the chancery court should have found the
factor in her favor. The dissent agrees, citing O’Briant v O’Briant, 99 So. 3d 802, 807 (¶20)
(Miss. Ct. App. 2012), which affirmed a custody award to a stay-at-home mother over the
child’s natural father. We find O’Briant distinguishable. The child’s father had a history of
mental illness, for which he was receiving treatment; so the physical-and-mental-health-of-
the-parent factor weighed in favor of the mother. Id. at 807 (¶21). Additionally, the child
was under the age of four and had health issues stemming from his premature birth. Id. at
804 (¶¶4-5).
¶20. There is no dispute that Bramlett is gone for three-week intervals because of his
employment, but, as noted, he has close family members—his parents and new wife—to help
care for Gregory. This Court has held: “The presence of extended family is a legitimate
factor to support awarding custody to a parent.” Collins v. Collins, 20 So. 3d 683, 690 (¶31)
(Miss. Ct. App. 2008) (quoting Messer v. Messer, 850 So. 2d 161, 167 (¶18) (Miss. Ct. App.
2003)). We note that in O’Briant, the stay-at-home mother relied on her family as well—she
had moved in with her parents in Texas, who could help her with child care. O’Briant, 99
So. 3d at 804 (¶4).
¶21. Because of his employment, Bramlett has the financial resources to provide for
Gregory’s child care and school. Although Lee is unemployed, she has more time to spend
with Gregory. We find no error in the court’s finding that this factor did not favor either
party.
D. Moral Fitness of the Parents
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¶22. The chancery court determined that this factor favored neither party. Lee claims the
court ignored her testimony that Bramlett had anger issues and that she was fearful of him.
She also said that there were charges pending against Bramlett, referencing a domestic-abuse
complaint she filed against Bramlett in March 2017. In that complaint, she alleged that
Bramlett had acted in a threatening manner toward her at Gregory’s soccer game while she
was six months pregnant (with Pringle’s child). The court did not ignore this testimony,
noting in its order that both parties had testified to misconduct by the other party. The GAL’s
report also mentioned this incident, and the GAL, “out of an abundance of caution,” asked
Gregory if he had seen his parents angry. He simply told the GAL his parents had “fuss[ed]
at each other” in the distant past, but he had never witnessed any physical abuse.
¶23. Both parties admitted they had engaged in sexual relationships with other persons
outside of marriage, but as the chancery court observed: “A parent’s cohabitation is not in
itself a reason to deny custody unless the conduct is shown to have an adverse impact on the
child.” We find no error in the court’s finding that neither party was favored as to this factor.
E. Home, School, and Community Record of the Child
¶24. The chancery court found this factor favored Bramlett because the majority of
Gregory’s extended family lived in Hattiesburg, and he was excelling in his school there.
Lee contends that this factor should have favored her as there was testimony Gregory had
made new friends in Madison, “the Pringles’ home is a nice, clean home in a good and safe
neighborhood,” and the new school he would attend was “excellent.”
¶25. However, Lee and her new family had lived in Madison only a few weeks at the time
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of trial. Both parties acknowledged that Gregory was a smart child and was doing well in
his current school in Hattiesburg. Both Bramlett and Lee have family in the Hattiesburg
area—Lee’s mother was a property manager for an apartment complex in town, and her sister
worked at the dentist’s office where the child was a patient. We also note that Bramlett had
enrolled Gregory in soccer and baseball leagues in the Hattiesburg area. Thus, we find the
evidence supports the chancery court’s finding.
F. Stability of the Home Environment and Employment of
Each Parent
¶26. Lee disputes the chancery court’s finding that this factor favored Bramlett. The court
observed that Bramlett had lived in his home since 2008; Lee has moved twice since splitting
from Bramlett. It was also noted that Bramlett has been employed by the same company for
five years. Although college-educated, Lee is unemployed and has not held a steady job.
She acknowledged: “[Bramlett] pretty much supported me whenever I was with him the five
years we were together.”
¶27. “[T]his factor favors a parent with a stable work history over a parent who works
sporadically.” Mayfield v. Mayfield, 956 So. 2d 337, 344 (¶19) (Miss. Ct. App. 2007). In
Mayfield, this Court found no error in chancery court’s finding in favor of a father “who was
employed by the same company for eleven years, even though he worked twelve-hour shifts
for seven days during a fourteen-day period” over the mother who had a more flexible
schedule. Id. We find no error in the court’s determination that this factor favored Bramlett.
G. Other Factors Relevant to the Parent-Child Relationship
¶28. The chancery court adopted the GAL’s findings on this issue regarding Lee’s lack of
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employment and income and the “stability of [Bramlett’s] home, the family support, and the
close proximity to [Gregory’s] school” in Hattiesburg. Lee argues on appeal that the
evidence showed her husband, Pringle, had a salary of $70,000, which is “more than
adequate to provide” for Gregory. As Bramlett notes, however, Pringle is under no legal
obligation to support Gregory; so his salary is not relevant. Lee further speculates that had
she been awarded custody, she would have received child support from Bramlett. We find
it ironic that Lee argues Bramlett’s income should be used as a basis to award her custody
while also arguing that the manner in which he earns the income—offshore work—should
be used as a factor against him. As discussed, we find no error in the chancery court’s
reliance on the GAL’s report and recommendations, finding it was based on credible and
competent evidence. This issue is without merit.
¶29. Accordingly, we find that the chancery court’s findings were not manifestly erroneous
and affirm the judgment.
¶30. AFFIRMED.
CARLTON AND J. WILSON, P.JJ., GREENLEE, TINDELL AND McCARTY,
JJ., CONCUR. LAWRENCE, J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY WESTBROOKS AND McDONALD, JJ. C. WILSON, J.,
NOT PARTICIPATING.
LAWRENCE, J., DISSENTING:
¶31. The majority affirms the chancellor’s award of primary physical custody to Bramlett
despite the fact that Bramlett will be absent from the home three out of every six weeks.
During that time, Gregory would live with Bramlett’s parents and not Lee. I respectfully
disagree.
13
¶32. Gregory, the minor child, was six years old and had lived with his mother, Lee, his
entire life. Lee and the child’s father, Beau Bramlett, sought custody of Gregory. The
chancellor recognized that “both parents have suitable housing for their child in their
respective residential areas at this time” and that both Lee and Bramlett were suitable parents.
Lee was a stay-at-home mother. Bramlett worked offshore in three week intervals. The
chancellor awarded custody to Bramlett with the knowledge that he would be gone three out
of every six weeks, and during that time Bramlett’s parents would provide primary care
instead of Lee, the natural mother. The record shows that Bramlett initially wanted to share
physical custody with Lee until she moved to Madison, Mississippi, to live with her new
husband and their newborn child.
¶33. Mississippi law presumes that the best interest of the child is with the natural parent
over a third party. Nickle v. Burnett, 122 Miss. 56, 65, 84 So. 138, 140 (1920). The Supreme
Court has found that natural parents “have the natural right to the nurture, care and custody
of their children.” E.J.M. v. A.J.M., 846 So. 2d 289, 294 (¶17) (Miss. Ct. App. 2003)
(quoting Simpson v. Rast, 258 So. 2d 233, 236 (Miss. 1972)). This Court has specifically
determined that the presumption is so strong that a third party can only be granted custody
in situations where “the natural parent has relinquished his parental rights, . . . he has no
meaningful relationship with his children, or . . . the parent’s conduct is clearly detrimental
to his children.” In re Brown, 902 So. 2d 604, 607 (¶9) (Miss. Ct. App. 2004).
¶34. None of the above scenarios are present in this case. Lee has never relinquished her
rights to Gregory, and the record is silent as to any allegation or evidence of behavior that
14
would be detrimental to Gregory’s health. It is also clear from the record that Lee has a
meaningful relationship with the minor child. Lee testified at trial that she “stayed at home
the first two and a half years of [Gregory’s] life.” The chancellor found that both parents
were fit and able to provide care for Gregory. Because the presumption was never disproved
or really addressed by the chancellor, Lee should have been favored in a custody analysis to
provide care instead of the paternal grandparents. With the chancellor’s ruling, Gregory will
only have a natural parent around every three weeks even though his mother is a stay-at-
home mom and perfectly capable of caring for him. The law presumes, and the facts support,
that the child’s best interest would be to live with his mother. Yet, the chancellor inexplicitly
ruled that Gregory should effectively live with his grandparents every three weeks.
¶35. Furthermore, at the hearing, the guardian ad litem testified about the natural-parent
presumption in the following exchange:
Q. Okay. You’re aware of the natural parent presumption –
A. Yes.
....
Q. Okay [in] this case, the way this will play out is the grandparents
will be caring for [the minor child].
A. They would be assisting, yes.
Q. When [Bramlett] is out of town for three weeks.
A. Yes.
Whether assisting or not, the paternal grandparents are still guaranteed more visitation rights
than the natural parent. Although the chancellor granted Lee “liberal visitation,” if the
15
parties agreed, the chancellor only guaranteed visitation on alternating weekends of the
month and holidays. Effectively, that arrangement means the grandparents would decide
additional visitation for the capable and caring natural mother for the three weeks Bramlett
is out of town.
¶36. This Court has held in the past that a stay-at-home parent is more able to provide care
than a parent who relies on a third party to help with a child. In O’Briant v. O’Briant, 99 So.
3d 802, 807 (¶20) (Miss. Ct. App. 2012), this Court affirmed a custody award to a stay-at-
home mother instead of the child’s natural father. The father previously maintained custody
of the child but was gone from the home to work or study quite frequently. Id. In his
absence, the child’s grandmother provided care. Id. The facts and findings of this Court in
O’Briant are simply the reverse of the chancellor’s conclusion in this case. Instead of
following the ruling and logic of that case and the presumption within our jurisprudence as
to a natural parent, the chancellor in this case essentially awarded shared custody between
Bramlett and his parents, not Bramlett and the child’s natural mother, Lee.
¶37. We are bound by the chancellor’s decision where the opinion is “supported by
substantial evidence unless the chancellor abused his discretion, was manifestly wrong or
clearly erroneous, or an erroneous legal standard was applied.” Mabus v. Mabus, 890 So. 2d
806, 819 (¶53) (Miss. 2003). Here, the chancellor applied an erroneous legal standard when
he failed to address or negate the natural-parent presumption. Further, he failed to determine
if the presumption was neutralized by any of the above factors. In light of that standard, I
would reverse on the issue of custody alone, but I also take issue with the chancellor’s
16
reliance on the report of the guardian ad litem.
¶38. The biggest concern with the report of the guardian ad litem is that she failed to
explain why the natural-parent presumption should not control nor did she conduct an
adequate investigation to render her opinion reliable. The role of the guardian ad litem is to
serve as an investigative arm of the court and make recommendations based on the best
interest of the minor child. While there is not a single exhaustive list of duties generally
expected of a guardian ad litem, one would certainly expect the guardian ad litem to
interview the parties, investigate the potential custodial living arrangements, and ensure that
the court has the information necessary to make a decision that is in the best interest of the
minor child.
¶39. As the chancellor noted in his final judgment, the court is not bound to the
recommendations of the guardian ad litem. Hensarling v. Hensarling, 824 So. 2d 583, 587
(¶10) (Miss. 2002). The recommendations and report of the guardian ad litem are mere tools
for the court to receive additional information and aid the court in making the decision,
which ultimately lies with the chancellor. S.N.C. v. J.R.D. Jr., 755 So. 2d 1077, 1082 (¶16)
(Miss. 2000). A guardian ad litem’s report that fails to properly investigate the facts and
circumstances of the child’s best interest, however, should not be summarily accepted.
¶40. Yet, here, the chancellor did just that. For example, the guardian ad litem’s report
stated “[Lee] has now had two children out of wedlock by two different fathers.” The
chancellor, apparently adopting word for word the guardian ad litem’s report, wrote in his
custody order “[Lee] has now had two children out of wedlock by two different fathers.” The
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fact Lee has had two children (one of whom is the minor child in this case) out of wedlock
is not a factor to be considered. The father has had a child (the minor child in this case) out
of wedlock, but that fact appeared in neither the guardian ad litem’s report nor the written
order of the court. A chancellor must and should evaluate all of the facts and circumstances
in a case to determine the best interest of the child, not simply take the report of a guardian
ad litem and automatically insert its language (improper assertions included) into the order
of custody.
¶41. Further, the guardian ad litem interviewed Lee, Bramlett, and Gregory. She spoke
with Bramlett’s fiancé briefly on the day of trial but had no communication with her before
the day of trial. Before writing her report, her time sheet reflected that she spent only 5.8
hours on her entire investigation. At trial, she testified to a lack of any semblance of an
investigation into the living arrangements she was recommending:
Q. Did you not interview Greg Bramlett [Bramlett’s father]?
A. I did not.
Q. Or Karen Bramlett [Bramlett’s mother]?
A. No.
Q. Or any other close relatives.
A. No. Regarding the grandparents, there were no allegations that
there was anything unfit about them. There were no allegations
of abuse, neglect, that their home was unsafe, or anything to that
matter.
Q. But you were aware that what the Bramletts [Gregory’s
grandparents] were proposing is for [Gregory] to stay with
[them] three weeks – during the three weeks he is offshore?
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A. That – I did hear that.
Q. Did you visit the Bramlett’s home?
A. No, I did not.
Q. Did you visit [Bramlett’s] home?
A. No.
Q. Did you visit the Pringles’ [Lee’s new married name] home in
Madison?
A. No.
¶42. Moreover, the guardian ad litem testified that she had not spoken to any of Gregory’s
teachers or visited his school. It appears that the guardian ad litem was aware that Gregory’s
grandparents were to be primary caregivers for twenty-one days of every six weeks but did
not investigate if the living arrangement was in the child’s best interest.
¶43. Accordingly, I find issue with the chancellor’s reliance on the guardian ad litem’s
report and the chancellor’s conclusion that the best interest of the child was some hybrid
form of joint physical custody between the natural father and the paternal grandparents over
that which the law presumes – the natural parent (in this case the natural mother). The
chancellor bears a responsibility to decide matters of custody with the best interest of the
child at the forefront, and the law of Mississippi presumes those interests are best with a
natural parent unless proven otherwise. Therefore, I dissent.
WESTBROOKS AND McDONALD, JJ., JOIN THIS OPINION.
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