Until about 20 years ago, in Missouri domestic court proceedings such as Dissolution of Marriage and Paternity cases, only the natural parents of a child could be awarded the custody of a child when that issue comes before a judge. Up until the year 2000 the only exception that existed was the circumstance where both parents were determined to be “unfit” or “unwilling” to provide care for the child. For example if both parents were abusing or neglecting the child. Under the historic rules up until less than 20 years ago in these type of proceedings, domestic relation courts were governed by the same rules that applied to abuse and neglect proceedings that are brought by a local juvenile officers.
In 2000 the Missouri General Assembly adopted legislation that altered the older law and allows the judge to award the custody of a child to someone other than a parent. A recent decision of the Missouri Supreme Court, Bowers v Bowers, explained very clearly when these provisions might apply.
The law still contains a parental presumption that the best interest of a child is best served by vesting custody of the child with his or her biological parent. However, this parental presumption can be rebutted under section 452.375.5, Revised Statutes of Missouri which provides, “Prior to awarding the appropriate custody arrangement in the best interest of the child, the court shall consider … [t]hird party custody or visitation.” A circuit court must consider a request by a third-party for custody or visitation of these children.
That statute goes on to state that “[w]hen the court finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires (emphasis added) and it is in the best interests of the child, then custody, .. may be awarded to any other person …”
In Missouri the courts still presume parental custody is in a minor child’s best interests. To rebut this presumption, the third party seeking custody must carry the burden of showing either that each parent is unfit, unsuitable, or unable to be a custodian or that the welfare of the child requires third party custody. That court in Bowers also described an example where this presumption may be overcome is when the third party has a “significant bonding familial custody relationship … [which] can constitute a special or extraordinary reason or circumstance rendering it in a child’s best interest to award third-party custody,” An example of this type of relationship can be someone who has raised the child for a significant period of time and the child has close relationship to that third party.
Although it might be a difficult challenge, a third party that proves to the court that awarding custody with parent is not in the best interest of the child may prevail in their request for custody. If you have a situation where you have a close relationship to a grandchild, stepchild or even unrelated children and you believe it would be harmful for the children to be placed with a parent, you should seek the advice and counsel of an attorney who is knowledgeable and experienced in handling such challenging cases.