527 S.W.3d 849
Mo.2017Background
- Child born 2007; prolonged litigation involving maternal guardian (Margaret Carroll) and paternal grandparents (Mary & David Hanson).
- 2009 probate court appointed Margaret Carroll guardian; found both parents unfit; letters of guardianship awarded custody with full powers; Grandparents did not appeal.
- Grandparents filed multiple petitions in circuit court (2010, 2012, 2015) seeking visitation and custody under Mo. Rev. Stat. § 452.402 and generally under chapter 452; earlier petitions were dismissed for failure to state a claim; Grandparents did not prevail in probate challenges to remove guardian.
- In April 2014 Bridget Carroll was appointed co-guardian; letters issued; Grandparents again did not appeal that probate decision.
- Grandparents’ 2015 petition (the appeal here) sought visitation (they abandoned custody at hearing); circuit court dismissed with prejudice for failure to state a claim because neither § 452.402 nor § 452.375.5(5)(a) provided relief given existing guardianship.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Grandparents pleaded statutorily sufficient claim for grandparent visitation under § 452.402 | Grandparents alleged long-standing relationship, residence, bond, and that visitation is in child’s best interest | Guardians: petition fails to plead the specific statutory elements (dissolution, parent deceased and denial, six months’ residence, or >90-day unreasonable denial) | Dismissed — petition did not allege any § 452.402 elements; no claim stated |
| Whether Grandparents can proceed under § 452.375.5(5)(a) (third-party custody/visitation) as an independent action | Grandparents invoke T.Q.L. to permit a standalone third-party custody/visitation action outside a pending custody proceeding | Guardians: existing letters of guardianship granted custody with full powers; § 452.375.5(5)(a) addresses alternatives to parental custody and does not apply where guardianship custody already exists | Dismissed — § 452.375.5(5)(a) inapplicable when probate has issued letters of guardianship conferring custody; conflict would result |
| Whether circuit court could grant relief despite prior probate rulings | Grandparents contend circuit court can adjudicate visitation rights under chapter 452 | Guardians rely on probate custody and prior final probate rulings (no appeal) limiting circuit court authority | Court held probate guardianship precludes a circuit court award of visitation/custody under the cited statutes in these circumstances |
| Appropriateness of dismissal with prejudice | Grandparents argued dismissal with prejudice was improper | Guardians argued dismissal merited because no viable statutory claim alleged | Court affirmed dismissal on merits; did not need to address prejudice separately because no claim could be stated |
Key Cases Cited
- In re T.Q.L., 386 S.W.3d 135 (Mo. banc 2012) (permitting a third party to plead third-party custody/visitation under § 452.375.5(5)(a) where statutory elements are sufficiently alleged)
- In re R.C.H., 419 S.W.3d 158 (Mo. App. E.D. 2013) (standing limits for challenging guardianship; appellate dismissal for lack of standing)
- D.S.K. ex rel. J.J.K. v. D.L.T., 428 S.W.3d 655 (Mo. App. W.D. 2013) (recognizing post‑T.Q.L. allowance for independent third‑party actions in some contexts)
- McGaw v. McGaw, 468 S.W.3d 435 (Mo. App. W.D. 2015) (suggesting third-party suits may proceed under T.Q.L. principles in novel family structures)
- Kelly v. Kelly, 245 S.W.3d 308 (Mo. App. W.D. 2008) (noting multiple forums can have jurisdiction over child custody and that courts should avoid conflicting custody orders)