Awarding Legal and Physical Custody of a Child to a Step-Parent in Missouri

Missouri law recognizes two types of child custody: physical custody, meaning the right to reside with, supervise, and care for a child; and legal custody, meaning the right to make decisions related to a child’s “health, education and welfare.” A court may award joint legal and physical custody to both parents, sole physical and legal custody to one parent, or some combination of joint and sole custody. It can also grant “third-party custody,” meaning physical and/or legal custody by someone other than a biological parent, such as a step-parent. In a 2018 ruling, Bowers v. Bowers, the Missouri Supreme Court affirmed a lower court order granting sole legal and physical custody to a child’s stepfather.

Establishing Parentage under Missouri Law

Missouri recognizes the relationship between parents and children regardless of whether parents are married to one another. The law is written in a way that treats every child as having a biological, or “natural,” mother and father. Establishing that a person is a child’s natural mother simply requires proof of giving birth to the child. Establishing an adoptive parental relationship requires proof of legal adoption. Determining whether someone is a child’s natural father can be more complicated.

If both parents sign and notarize an “acknowledgement of paternity” and file it with the state, it is considered a legal determination of paternity after sixty days. This allows parents who are not married to establish the identity of the child’s natural father. The sixty-day period is to allow either person to rescind their signature. After sixty days, the only way to rescind a signature is to challenge it in court “on the basis of fraud, duress or material mistake of fact.” The person making the challenge has the burden of proving the case for rescission.

A person is presumed to be the “natural father” of a child if the child is born while the person is married to the child’s natural mother, or within three hundred days after legal separation or divorce. In order to overcome this presumption, a party to a custody dispute must present clear and convincing evidence that the person is not the father, or that somebody else is the father. A blood test showing a ninety-eight percent probability or higher that a man is a child’s biological father creates a “conclusive presumption” of paternity, which is almost impossible to challenge in court.

Best Interests of the Child

Any order that a court makes regarding child custody in Missouri must be in the “best interest” of the child or children. This is a highly subjective standard. State law does not provide a distinct definition of “best interest,” and therefore gives courts a considerable amount of discretion. Section 452.375 of the Missouri Revised Statutes establishes some general principles regarding children’s best interests, and provides courts with some guidelines for custody determinations.

Section 452.375.4 declares that it is in a child’s best interest to have “frequent, continuing and meaningful contact with both parents” after a divorce or separation, unless a court specifically finds otherwise. It also states that parents should both have input into “decisions affecting the health, education and welfare of their children” whenever possible.

Parental and Third-Party Custody

Courts must make written findings when they rule on custody disputes. Section 452.375.2 lists eight factors for courts to consider, and notes that it is not an exhaustive list. The factors include the wishes of the child and the parents; the relationship between the child, the parents, and any siblings; mental and physical health considerations and needs; and the child’s “adjustment to...home, school, and community.” The statute requires additional written findings if a court determines that awarding joint or sole custody to an “abusive parent” is in the child’s best interest.

Section 452.375.5 identifies five possible custody arrangements:

1. Joint physical and legal custody by both parents;
2. Joint physical custody by both parents, and sole legal custody by one parent;
3. Joint legal custody by both parents, and sole physical custody by one parent;
4. Sole physical and legal custody by one parent; and
5. Third-party custody.

A court could award third-party custody in any of the positions held by a parent in the above list, such as sole third-party physical custody and joint legal custody with the parents. In practice, then, the number of potential custody arrangements involving third parties and natural parents is essentially infinite.

Third-party custody is possible when a court determines “that each parent is unfit, unsuitable, or unable to be a custodian,...and it is in the best interests of the child.” The court must add a person as a party to the case before it can award them third-party custody. The statute also allows “any person” to file a petition with the court to intervene in an ongoing custody case in order to seek third-party custody.

The Bowers Case

This case began as a divorce between a man and a woman who were raising the woman’s biological child together. According to the court, the couple asked the child’s biological father “to not become involved in Child's life” before the child was born, and he agreed. The couple signed an Affidavit Acknowledging Paternity four days after the child’s birth in 2008. Missouri therefore legally recognized the husband as the child’s father.

The husband filed for divorce in 2013, and sought joint physical and legal custody of the child. The mother denied that the husband was the child’s father, alleging “material mistake in fact or fraud” in the affidavit of paternity. The biological father submitted to DNA testing, which confirmed his paternity. Both the husband and the biological father filed petitions to intervene in the custody case.

The circuit court held a bench trial on both the divorce and the custody dispute. It noted that it should not have jurisdiction over the custody case, because the husband was not the biological father. Since all three parties—the husband, the wife, and the biological father—appeared in court, however, it went ahead and ruled on custody. In a “detailed judgment,” the court held that the wife and the biological father “were both unfit, unsuitable, and unable to be Child's custodian.” It awarded sole legal and physical custody to the husband.

The Missouri Supreme Court

The Missouri Supreme Court affirmed the custody order. It noted that the lower court technically should not have ruled on custody during the divorce trial. Since the wife did not object during the trial itself, though, the court held that she could not raise that issue on appeal.

The ex-wife/mother also alleged on appeal that awarding sole custody to the child’s stepfather violated her “superior right to custody” as a biological parent. The court noted that a 2000 decision by the U.S. Supreme Court, Troxel v. Granville, struck down a Washington state law allowing third parties to petition for custody of a child. A Missouri appellate court had already addressed Troxel’s applicability to § 452.375.5, however, in 2015 in McGaw v. McGaw. That court found that, unlike the Washington statute, Missouri’s statute placed the burden of proof firmly on a third party to demonstrate why a court should veer from the state’s usual policy of awarding custody to a child’s parents.

The court quoted from McGaw when it found that the ex-husband was “not simply any third party.” He was, in fact, “an individual who was specifically invited by a biological parent to act as a parent...and in fact acted in that capacity for an extended period of time.”

Family law attorney Mark A. Wortman focuses his practice exclusively on child custody, divorce, and other matters involving family law in the Kansas City, Missouri area. To schedule a confidential consultation with a knowledgeable legal advocate, please contact us today online or at (816) 523-6100.