There are times when it is not in the best interests of the children to be with either parent, and a third party wants to seek custody or visitation. Due to Constitutional rights belonging to the parents, it can be very difficult and complicated for a third party to obtain custody. There has been a recent update in Missouri that further limits the ability of third parties to seek child custody.
The Missouri Supreme Court recently issued a ruling in In re Matter of A.L.P. and S.H.P., Minors; Alica Smith v. Lora Martinez in which the Court ruled that RSMo. 452.395.5(5) does not create an independent cause of action for third-party visitation and custody. RSMo. 452.395.(5) states:
Third-party custody or visitation:
(a) When the court finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child, then custody, temporary custody or visitation may be awarded to a person related by consanguinity or affinity to the child. If no person related to the child by consanguinity or affinity is willing to accept custody, then the court may award custody to any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment for the child. Before the court awards custody, temporary custody or visitation to a third person under this subdivision, the court shall make that person a party to the action;
The Court found that the plain language of the statute found two ways for a party to be added to an already existing action: (1) by the court’s own initiative before awarding custody to a third party or (2) a third party’s petition to intervene in the action.
Prior to this ruling, many practitioners relied on T.Q.L. v. L.L. to establish the right of a third party to file an independent action for custody or visitation. However, the Court expressly stated in their opinion that “To the extent other cases have created or recognized an independent cause of action, they should no longer be followed.” As it stands now, if a party wishes to seek custody or visitation of a minor child, there must be an existing cause of action for custody already pending. An existing cause of action could be: (1) a divorce; (2) paternity action; (3) guardianship; or (4) any other action where custody and/or visitation is at issue.
Actions involving the custody and/or visitation of a minor child are complex and full of nuances. It is helpful to retain a lawyer to assist in navigating these nuances and advocate on your behalf to get the best possible outcome for you and your children.
The choice of a lawyer is an important one and should not be based solely on advertisements.