543 S.W.3d 608
Mo.2018Background
- Jessica gave birth in 2008; four days later she and Jason signed a Missouri paternity affidavit and the birth certificate named Jason as father, though Child's biological father was Stephen.
- Jessica and Jason married, raised Child together until separation; Jason later filed for dissolution in 2013 seeking custody and support.
- Jessica denied Child was born of the marriage, sought DNA testing and a declaration of non-paternity; Stephen later intervened, asserting parentage under the UPA.
- Despite procedural irregularities (paternity and dissolution joined in one case), the circuit court treated Jason as a third party under §452.375.5 to decide custody after all interested parties appeared.
- The court found Jessica and Stephen unfit/unsuitable to have custody, found a strong parental bond between Jason and Child (therapist testimony), and awarded Jason sole legal and physical custody while amending the birth certificate to name Stephen as biological father.
- Jessica appealed, arguing (inter alia) the court erred in designating Jason a third party and that the custody award was against the weight of the evidence; the Missouri Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument (Jessica) | Defendant's Argument (Jason) | Held |
|---|---|---|---|
| Whether Jason (already a party in the dissolution) could be designated a "third party" under §452.375.5(5) for custody purposes | Court lacked authority to treat Jason as a third party; legislature did not intend a party to a dissolution to be a §452.375.5 third person | §452.375.5 permits third-party custody; making Jason a third party for custody was proper given parties and issues before the court and Jessica invited the posture | Court upheld designation: given the facts, pleadings, and parties' conduct (and Operating Rule 4.05.3 not raised below), treating Jason as a third party for custody was permissible. |
| Whether the parental presumption entitled Jessica to custody absent clear rebuttal | As biological parent, Jessica argued presumption of parental custody should prevail; trial court's finding of unfitness was against weight and unsupported | Jason argued he adequately pleaded and proved parents were unfit/unsuitable and that he rebutted parental presumption under §452.375.5 | Court deferred to trial credibility findings and held substantial evidence supported finding Jessica unfit/unsuitable; parental presumption was rebutted. |
| Whether trial court erred by not separately finding "welfare of the child" required third-party custody | Jessica argued the court failed to make adequate alternative findings that welfare required third-party custody | Jason argued proof of parental unfitness plus evidence of strong bond satisfied statutory requirements and best interest standard | Court held statute requires either unfitness or welfare showing; trial court found unfitness and best interest, so no separate welfare finding required. |
| Whether custody award was against the weight of the evidence | Jessica asserted errors in factual findings (medical neglect, visitation withholding, alienation, inability to co-parent) and multifarious appellate points | Jason relied on therapist testimony, contempt findings, evidence of Jessica's attempts to sever Child-Jason bond, and that Child considered Jason her primary parent | Court applied deferential standard, found credibility determinations supported by substantial evidence (therapist, contempt), and affirmed custody to Jason. |
Key Cases Cited
- Brown v. Brown, 423 S.W.3d 784 (Mo. banc) (standard for appellate review of circuit court judgments)
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc) (standard of review for weight and sufficiency of evidence)
- Pearson v. Koster, 367 S.W.3d 36 (Mo. banc) (de novo review of legal questions)
- In re Marriage of Said, 26 S.W.3d 839 (Mo. App. S.D.) (step-parent third-party custody discussion in dissolution context)
- McGaw v. McGaw, 468 S.W.3d 435 (Mo. App. W.D.) (analysis of §452.375.5 third-party custody and rebuttable parental presumption)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental substantive due process principles regarding third-party visitation/custody)
- S.S.S. v. C.V.S., 529 S.W.3d 811 (Mo. banc) (appellate guidance on when judgment is against the weight of the evidence)
- T.Q.L., In re, 386 S.W.3d 135 (Mo. banc) (recognition of long-term, invited parental role supporting third-party custody)
- Hanson v. Carroll, 527 S.W.3d 849 (Mo. banc) (legislative intent and use of §452.375.5 as alternate to parental custody)