CAN A NON-PARENT GET CUSTODY OF MY KID?
People have a child or children automatically assuming that they, as parents, have the right to make decisions for the child or children so long as they are minors. This assumption has been reinforced by the United States Supreme Court which has consistently found that parents have a “fundamental” right to direct their child’s upbringing and that this right is protected by the due process clause of the Fourteenth Amendment. T.W. ex rel. R.W. v. T.H., 393 S.W.3d 144, 147-148 (M. App. E.D. 2013). The law presumes that parents know what is best for their child and have respected their right to make choices for their child. It is only in extraordinary and extreme circumstances that the Court will intervene and usurp the decisions made by parents.
One of the decisions that parents take for granted is their ability to decide what third-parties can become a regular and central part of their child’s life; they get to decide with whom they share their child. By definition, “third-party” does not include the other biological or an adoptive parent, which you’re stuck with on at least some level for the most part. Third-party does include any non-biological or adoptive parent such as friends and family and also step-parents, boyfriends, girlfriends, teachers, caregivers, neighbors and any individual who has contact with the child. The court has been unwavering in holding that the custodial rights of the natural parents are superior to that of third-parties. In the Interest of K.K.M., 647 S.W.2d 886, 889 (Mo. App. E.D. 1983).
Historically, you as a parent have had a right to tell a non-parent that he or she cannot see your child and the Court has rejected the idea that any unrelated person can come along and contest your request to stay away by bringing a court action to gain custody or visitation rights to your child. White v. White, 293 S.W.3d 1, 21 (Mo. App. W.D. 2009). There does exist a provision specifically related to grandparent’s visitation which is not addressed here but, what is addressed here, is a provision that exists in the law that allows third-parties, non-parents, to petition the court for custody or visitation rights to other people’s children, the application of this provision has always been limited. RSMo 452.375.5(5)(a).
First, a case for dissolution must already be pending before a non-parent can even file the request. In effect, this limited the opportunity a non-parent had for asking the court to grant him or her custody of someone else’s child. If the biological or adoptive parents never filed for a divorce, there would never be a case in which the non-parent could intervene and make the request for visitation or custody. Second, the non-parent could only get custody or visitation by proving that the parents are unfit or unable to care for the child, or the welfare of the child requires and it would be in the best interest of the child for a non-parent to be granted custody or visitation of the child. RSMo 452.375.5(5)(a).
This all changed in 2012. In 2012 the Court suggested that a third-party custody petition was not limited to circumstances when a divorce case was already pending and that it instead could be brought as an independent action. In re the Matter of T.Q.L., 386 S.W.3d 135 (Mo. 2012). In short, in T.Q.L., a man who was not the father was permitted to bring a third-party custody claim against his ex-girlfriend over a child that he had believed to be his. He was allowed to file this request for custody even though there was no other action pending and despite the fact that DNA testing excluded him as the father of the child.
This was a turning point for third-party custody and because of the growing number of non-traditional families and same sex couples, this area has evolved rapidly since 2012. On October 3, 2017, the Court of Appeals found that a woman had standing to bring a claim for custody over the child of her ex-girlfriend despite having no biological, adoptive or contractual claim to the child. K.M.M. v. K.E.W., ED105087(Mo. App. E.D. 2017). The Court found that the parties had lived together as a family unit and that the significant bonding that existed between them was “a special or extraordinary circumstance” that rebutted the presumption that the biological mother should be allowed to make the decision to no longer allow her ex-girlfriend contact with her child.
While the Appellate Court sent K.M.M. v. K.E.W. back to the trial court for further evidence on the child’s best interest and the ex-girlfriend’s fitness, the decision was clear that unrelated persons have standing to bring an independent action for custody. Obviously, this begs the question of where will the Court draw the line? Does it only apply to individuals acting in a parental capacity or can it also apply to grandparents, teachers, nannies or any other individual who develops a bonded relationship with the child? This case opens up a lot of opportunity for litigation and we will undoubtedly continue to see development in this area of the law in the near future.
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