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Hanson v. Carroll

Court of Appeals of Missouri, Eastern District, Fourth Division

November 22, 2016


         Appeal from the Circuit Court of the City of St. Louis 1522-FC00797 Honorable Christopher E. McGraugh.




         Mary Hanson and David Hanson (together, Grandparents) appeal from the judgment of the circuit court dismissing their motion for visitation and custody of their minor grandchild, R.C.H., over whom Margaret Carroll and Bridget Carroll (together, Guardians) have guardianship. We reverse and remand for further proceedings.

         Facts and Background

         R.C.H. was bom in 2007. The probate court appointed Margaret Carroll, his maternal great-grandmother, as guardian of R.C.H. in 2009 upon her motion, and appointed Bridget Carroll, R.C.H.'s maternal aunt, as co-guardian in 2014. In 2015, Grandparents filed this petition[1] for visitation and custody in the circuit court, citing Chapter 452[2] generally. The petition alleged that "it is in the best interest of the Minor Child and the welfare of the Minor Child requires that [Grandparents] continue to be a part of the Minor Child's life and that [Grandparents] and [Guardians] should be granted joint physical and joint legal custody of the Minor Child." Grandparents asserted that they were the paternal grandparents of R.C.H. and that, since R.C.H.'s birth, they had had liberal custody and visitation with him, nurtured him and supported him financially, developed a strong bond with him, and established a parent/child relationship with him. Since Guardians were granted guardianship over R.C.H., Guardians had discontinued R.C.H.'s contact with Grandparents.

         Guardians moved to dismiss the petition for lack of standing and for failure to state a claim, arguing Grandparents failed to meet the statutory requirements of Section 452.402.1 for grandparent visitation. At a hearing on the motion to dismiss, the parties made arguments concerning grandparent visitation under Section 452.402 and third-party visitation under Section 452.375.5(5), and Grandparents abandoned their claim for joint custody. The circuit court dismissed the petition, ruling that Grandparents had not stated a claim upon which relief could be granted under either Section 452.402 or Section 452.375.5(5). The dismissal was with prejudice. The court did not rule on the standing issue. This appeal follows. Grandparents appeal only the circuit court's dismissal of their petition for failure to state a claim under Section 452.375.5.


         Guardians have filed a motion to dismiss the pending appeal, arguing that Grandparents lack standing both below and on appeal. "Where ... a question is raised about a party's standing, courts have a duty to determine the question of their jurisdiction before reaching substantive issues." White v. White, 293 S.W.3d 1, 8 (Mo. App. W.D. 2009) (citation omitted). Standing is a jurisdictional matter that requires courts to determine whether the party seeking relief has a legally cognizable interest in the subject matter and, if so, whether that interest is threatened with actual injury. Id.: Matter of Adoption of E. N.C. . 458 S.W.3d 387 (Mo. App. E.D. 2014s). We resolve standing as a matter of law based on the petition and the undisputed facts. White, 293 S.W.3dat8.

         Guardians here argue that because Grandparents did not bring their petition for visitation within the context of a pending custody determination they do not have standing under Section 452.375.5. We disagree. The law in Missouri was previously that a third party could not seek custody under Section 452.375.5 except in the context of an ongoing custody determination. See, e.g.. White, 293 S.W.3d at 21 (holding that "[n]either our statutes nor our case law remotely suggest that any third party that comes along has standing to bring an action seeking custody of children"). However, the Missouri Supreme Court in In re T.Q.L., 386 S.W.3d 135 (Mo. banc 2012), allowed the petitioner, who had believed that he was the biological father of the minor child until DNA testing revealed he was not, to amend his action for paternity and custody to state a claim for third-party custody over the minor child pursuant to Section 452.375.5(5). Id. at 139.

         Missouri courts have since interpreted In re T.Q.L. as establishing the right of a third party to file an independent action seeking child custody and visitation. See McGaw v. McGaw. 468 S.W.3d 435, 444-45 (Mo. App. W.D. 2015) (Section 452.375.5(5) "provides a basis for a nonbiological parent to commence an action seeking child custody and visitation"); D.S.K. Ex rel. J.J.K. v. D.L.T., 428 S.W.3d 655, 660 n.7 (Mo. App. W.D. 2013) ("[p]ursuant to T.O.L., an independent action for third-party custody is permissible"). The Western District in McGaw specifically noted that the narrow construction of Section 452.375.5(5) espoused in White was "necessarily overruled" by the Missouri Supreme Court's decision in In re T.Q.L. McGaw, 468 S.W.3dat444.[3]

         Following In re T.Q.L., as we must, [4] we find that Grandparents here are entitled to seek third-party custody and visitation under Section 452.375.5(5) in an independent action, and thus they have standing to appeal from the denial of their petition. Guardians' motion to dismiss the appeal and for sanctions is denied.

         Point I

         In their first point on appeal, Grandparents argue the circuit court erred in dismissing their petition because they stated a claim for custody and ...

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