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Petition for third party custody sufficient

Missouri statute allows custody in persons not biologically related to a child but having a familial bond. The Petitioner for third party custody must rebut a presumption of parental fitness or prove that the child’s welfare requires custody in petitioner.

In a recent case from the Missouri Court of Appeals, Appellant appeals from the motion court’s order and judgment granting Respondent’s motion to dismiss Appellant’s Amended Petition for Third Party Custody. The Appellant sought custody of or visitation with the Respondent’s minor daughter, claiming Respondent has withheld contact with since the end of Appellant’s and Respondent’s relationship. Appellant claims the motion court erred in granting Respondent’s motion to dismiss for failure to state a claim upon which relief may be granted, and misapplied Section 452.375.1 in not entering judgment in favor of Appellant.

The Court REVERSED the decision and remanded the case back to the Circuit Court. The motion court erred in granting Respondent’s motion to dismiss Appellant’s Amended Petition in that the Amended Petition pled facts sufficient to state a claim for third-party custody pursuant to Section 452.375, including parental unfitness and the welfare of the child.  The motion court also erred to the extent it considered matters outside the pleadings in granting the motion to dismiss Appellant’s Amended Petition without requiring the parties comply with the procedural rules governing motions for summary judgment.

Missouri Court of Appeals, Eastern District - ED106413

Mark A. Wortman

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Kansas City family law attorney Mark A. Wortman handles only divorce and family law matters, and practices only in the State of Missouri. Due to this specialty, Mark has handled thousands of Missouri divorce and family cases and has practiced extensi… Read More