Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of the City of St. Louis 1522-FC00797
Honorable Christopher E. McGraugh.
M. GAERTNER, JR., JUDGE.
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
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 for visitation
and custody in the circuit court, citing Chapter
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.
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.
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.
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
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.
In re T.Q.L., as we must,  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.
their first point on appeal, Grandparents argue the circuit
court erred in dismissing their petition because they stated
a claim for custody and ...