Case Law Update: Grandparent Visitation Cannot Be Granted By A Probate Judge
In the Matter of D.C.O. and A.D.O., Bill Hitt and Brenda Hitt, Appellants v. Mark S. Odom, Respondent, No. 28163 (Mo. App. S.D., December 7, 2007), Parrish, P.J.
The father of two minor children filed a motion to modify a prior judgment granting grandparent visitation. The judgment from which he sought modification had been entered in 2001 in the Probate Division of the Circuit Court of Dunklin County. That litigation had been based on a two-count petition brought by said grandparents. Count I was for guardianship of the children, and count II was for grandparent visitation. Prior to the entry of judgment in 2001, count I was dismissed and the parties entered into a stipulation that resulted in the grandparents receiving visitation, pursuant to the judgment.
The trial court in the modification action determined that the original court had no jurisdiction to enter the judgment for grandparent visitation upon the dismissal of count I of the action for guardianship. The trial court declared the judgment void ab initio. The grandparents appealed.
A probate court is limited in the exercise of jurisdiction to those granted by applicable statute. “Grandparent visitation rights are addressed by § 452.402 which relates to custody issues in dissolution of marriage and other related cases that a probate division does not hear.”
“Upon dismissal of Count I, there was no probate matter remaining.” Therefore, the judgment was void at its inception.
“If there is now an issue regarding visitation rights, it can be pursued by an action separate and apart from the one that produced this appeal.”
Source For Post: MIssouri Bar