552 S.W.3d 692
Mo. Ct. App.2018Background
- Child born July 2010 to Mother and Father; Father died October 2015. Grandmother is paternal grandmother who lived in Wisconsin and had periodic contact through 2012 but was largely blocked thereafter.
- After Father's death Grandmother requested visits repeatedly (texts in Nov. and Dec. 2015, July 2016); Mother denied or ignored requests and allegedly told Child Grandmother would take Child away (disputed).
- Grandmother filed for grandparent visitation in Dec. 2015 (dismissed for noncompliance) and again in March 2016 with a proposed phased visitation schedule including supervised visits, monthly weekends, a week in summer (possibly in Wisconsin), and extended Christmas time.
- Mother opposed, arguing Grandmother was essentially a stranger and visitation would disrupt Child’s best interests; a guardian ad litem did not recommend visitation because she had not observed interactions.
- Trial court found Grandmother had been unreasonably denied visitation for over 90 days, that visitation was in Child’s best interest, and entered a graduated visitation plan (initial supervised visits, then phased unsupervised overnights, quarterly in-person visits, one-week summer visit, and monthly Skype).
- Mother appealed three points: lack of 90-day denial, visitation not in Child’s best interest, and visitation plan overly intrusive.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Grandmother) | Held |
|---|---|---|---|
| Whether Grandmother was unreasonably denied visitation for >90 days under §452.402 | Grandmother's only request was an unreasonable court filing; no specific timely requests >90 days before petition | Grandmother repeatedly requested visits by text and was rebuffed after funeral | Court: sufficient evidence of repeated requests; requirement satisfied |
| Whether visitation is in Child's best interests | Grandmother is essentially a stranger; GAL did not recommend; Mother feared emotional harm | Grandmother is fit, offered relationship with paternal family after father's death; estrangement due to Mother; court can tailor phased visitation | Court: trial court did not abuse discretion; visitation found in best interests |
| Whether trial court shifted burden of proof to Mother | Court improperly required Mother to disprove best interests rather than Grandmother to prove it | Burden on grandparent to prove best interests; court considered Mother's unexplained opposition as relevant to safety/emotional harm issue | Court: no improper burden-shifting; grandparent met burden |
| Whether the visitation schedule is excessive/minimally intrusive | Schedule exceeds minimally intrusive standard and conflicts with precedent limiting frequency | Schedule is phased, mostly quarterly in-person visits, limited Skype monthly, and summer week to preserve paternal family ties | Court: schedule tailored, not excessive or intrusive; broad discretion affirmed |
Key Cases Cited
- Herndon v. Tuhey, 857 S.W.2d 203 (Mo. 1993) (grandchild ordinarily benefits from contact with fit grandparent)
- Blakely v. Blakely, 83 S.W.3d 537 (Mo. banc 2002) (grandparent visitation statute reflects state interest in maintaining child-grandparent contact)
- Komosa v. Komosa, 939 S.W.2d 479 (Mo. App. E.D. 1997) (excessive visitation schedule can infringe parental rights; facts-specific limit)
- Ray v. Hannon, 14 S.W.3d 270 (Mo. App. W.D. 2000) (visitation frequency determined case-by-case; Komosa not a bright-line rule)
- Shemwell v. Arni, 223 S.W.3d 216 (Mo. App. W.D. 2007) (rejects broad reading of Komosa; case-by-case approach)
- In re G.P.C., 28 S.W.3d 357 (Mo. App. E.D. 2000) (comparative visitation analyses considered in scheduling decisions)
Conclusion: Judgment granting grandparent visitation (phased, limited schedule) affirmed; trial court findings supported by evidence and not an abuse of discretion.