Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of St. Louis County Honorable Douglas
B. SULLIVAN, J.
(Kathleen) appeals from the trial court's order and
judgment granting K.E.W.'s (Kate) Motion to Dismiss for
Failure to State a Claim (Motion to Dismiss) two counts of
Kathleen's petition, one seeking to establish her legal
parentage of B.W. (Child) under Section 210.824 and one for
breach of contract of a custody agreement, and in denying her
claim for third-party custody or visitation pursuant to
Section 452.375 after a trial. We affirm in part, reverse
in part, and remand for further proceedings.
and Procedural Background
filed a petition seeking joint custody and visitation of
Child based on the parties' voluntary custody agreement
(Count I), equitable parentage (Count II), third- party
custody or visitation pursuant to Section 452.375.5(5)(a)
(Count III), and her legal parentage pursuant to Section
210.824 (Count IV). Upon Kate's motion, the trial court
dismissed Counts I, II, and IV for failure to state a claim
and denied her claim for third-party custody or visitation
pursuant to Count III.
October 2007, Kathleen and Kate began a committed romantic
relationship.In the summer of 2008, Kathleen and her two
children from a previous relationship, L.M. and E.M., moved
into Kate's home. In 2009, the parties opened a joint bank
account to which they each contributed equally and from which
they paid their shared expenses. In September 2009, the
parties purchased a home together, where they lived with
their children until the parties' separation in 2015.
point, the parties discussed and ultimately decided to have a
child together, agreeing Kate would carry the child. In March
2011, the parties went to couples counseling to discuss their
different parenting styles and how they would parent
April 11, 2011, the parties executed documents with the
Fertility and Reproductive Medicine Clinic related to the
guidelines and consent to artificial insemination. This
included a document titled "Patient Information and
Guidelines[:] Artificial Insemination[, ]" which stated,
"Should a child be produced by this procedure, the
responsibilities of the parent are the same as if the child
were conceived by intercourse. The child shall be regarded as
legitimate and entitled to all of the rights of support and
inheritance as a naturally conceived child." Kate signed
the line designated for the patient and Kathleen signed the
line designated as "Partner[.]" They also executed
a document titled "Consent to Artificial Insemination
Using Sperm from an Independent Source[.]" Kate signed
on the line designated for the patient and Kathleen signed
the line designated "Spouse[, ]" which she crossed
out and replaced with "Partner[.]" The trial court
found the execution of the documents evidenced a clear
indication the parties knowingly entered into the process.
order to become pregnant Kate had to undergo fertility
treatments, and she became pregnant in October 2011 after the
fifth insemination. The parties discussed and exchanged
opinions about the prospective sperm donors.
was insured under Kathleen's medical insurance as her
"domestic partner, " which partially paid for the
cost of the fertility treatments, the artificial
inseminations, and Kate's medical care during the
pregnancy. Kate paid the uncovered costs of the artificial
inseminations and each party made separate payments for the
uncovered costs associated with Child's birth and related
attended Kate's doctor visits and ultrasounds during the
pregnancy. The trial court found the parties shared in the
decision making and were excited with the anticipation of the
conception, birthing, and parenting including participating
in baby showers together, making a joint announcement as a
couple of Kate's pregnancy, and creating a joint baby
registry. The record included cards from Kate to Kathleen
stating Kate was excited to have a baby with Kathleen,
Kathleen was going to make "a great mom to the new baby,
" and referring to them as a family.
5, 2012, Kate gave birth to Child. Kathleen was the only
non-medical person present in the delivery room. Kathleen cut
the umbilical cord and stayed overnight in the hospital with
Kate and Child. Kate picked Child's first name and
Child's middle name was chosen in honor of Kathleen's
grandfather. The parties sent out a joint email announcing
Child's birth. Kate gave Kathleen a charm bracelet with
Child's first initial.
Child's birth, Kate took 12 weeks off work. Kathleen
testified she took some days off but was unable to take
maternity leave. Afterward, per the parties' agreement,
Child attended daycare at a facility located on
Kathleen's employer's campus. On the daycare
enrollment forms, Kate identified herself and Kathleen as
Child's mother, parent, or guardian, and L.M. and E.M as
trial court found Kate was Child's primary caregiver but
that Kathleen participated in the care, custody, and
nurturing of Child. Kathleen assisted in putting Child to
bed, getting Child up in the morning, changing his diaper,
and dressing, feeding, and bathing him. Kathleen dropped off
and picked up Child from daycare, took him to the
pediatrician, stayed home with him when he was sick, and
helped track Child's sleeping and feeding patterns.
During the relationship, Kathleen carried health insurance
for Child as her "domestic partner's child."
Child's expenses, along with the rest of the family
expenses, were paid from the parties' joint account.
Kathleen read to Child, played with Child, would occasionally
stop by daycare to see him during her lunch hour, and would
take him with her when she went jogging. Initially, Child
called Kathleen "mama" or "mommy" and
Kate "mama" or "mom." As he got older,
Child called them "Mommy Kathleen" and "Mommy
Kate." Kate also called Kathleen "Mommy
Kathleen." The trial court found the parties each
participated in the care of Child "with the obvious
maternalistic care  that can be expected of the child's
testified she, Kate, and the children acted like a family -
celebrating holidays and birthdays together, taking family
vacations, having family photos taken, and taking care of
each other. Kate created social media posts referring to
herself, Kathleen, and the children as a "family."
Kathleen testified she acted as a parent to Child and that
Kate helped her parent L.M. and E.M. Kathleen testified she
and Child were close and loved each other, and she wanted him
to be safe and happy. Kathleen testified she and Child had a
bonded relationship. Kathleen testified L.M. and E.M. loved
Child. Kathleen submitted as evidence hundreds of photographs
of herself, Kate, L.M., and E.M. with Child engaging in daily
life and on special occasions.
trial, Kate repeatedly denied she, Kathleen, and the children
were a "family, " instead classifying them as a
household or a group of people who lived and "hung
around" together. Kate testified she took on a
stepmother-type role with L.M. and E.M. but asserted she was
no more than their mother's girlfriend. Kate testified
she and Kathleen did not equally share in the care of Child
because Kathleen was not "around much" since she
was traveling, working, exercising, and doing things for L.M.
and E.M. During direct examination, Kate testified as
Q. Would you have had artificial insemination if you had not
been in a committed relationship?
A. It's tough to say. You know, would I have ever?
[Guardian ad Litem]: Objection. Speculation.
THE COURT: Yeah. It's either a yes or no. As for [Child],
I guess they're saying.
A. No, I probably wouldn't have done it completely on my
Q. (By Kate's counsel): Why not?
A. It seemed like a lot to take on by myself.
trial court found that until the parties' separation, the
parties held themselves out, acted, and operated as a family
unit. The court found the "pregnancy, birth, child
rearing and child care as performed by Kate and Kathleen as
the actions of a 'family' as defined as those who
love each other and protect and follow one another, but not
with the adherence of legal status."
name does not appear on Child's birth certificate and she
never adopted Child. At trial, Kathleen asserted Kate agreed
she would adopt Child. Kate maintained Kathleen did not raise
the issue of adoption until near the end of their
relationship and that she never agreed to it. The trial court
found Kathleen brought up the issue of adoption to Kate
numerous times from Child's birth to the parties'
separation and each time Kate deflected such discussions. The
court found Kate's timing of leaving the relationship was
at least partially driven by Kathleen's continued
requests to adopt Child.
time, the parties' relationship deteriorated. On January
17, 2015, Kate moved Child's and her belongings out of
the house while Kathleen was at dinner with her mother and
the children. At that time, Kate told Kathleen via text
message, "I don't want you to think it means I'm
going to cut you off from seeing him. I'm not." Kate
testified she believed at that time it might have been in
Child's best interest to remain in contact with Kathleen.
Kate subsequently switched Child's daycare. Shortly after
the breakup, Kathleen asked Kate to work with her to set up a
consistent visitation schedule. Kate initially agreed to
allow Kathleen, L.M., and E.M. to continue to see Child and
the parties arranged several visits.
February 8, 2015, the parties met for a visit and then went
to dinner. Kate testified Kathleen had previously asked Kate
where she currently lived and about Child's daycare, and
Kate told Kathleen she did not want her to know because she
was afraid of Kathleen. At the dinner, E.M. asked Kate about
Child's new school. When Kate appeared hesitant to
answer, Kathleen whispered to Kate she knew where Kate lived
and Child went to school, and she had not tried to
"kidnap" Child and that Kate was fine. Kathleen
testified she was attempting to reassure Kate she was not a
threat to her or Child. Kate testified she perceived this to
be a threat, in part because it was whispered to her and
Kathleen appeared overly focused on Child during the visit.
Kate testified the visit frightened her and so she made the
decision to terminate contact between Kathleen and Child. In
its judgment, the court acknowledged it did not witness the
encounter firsthand but found nothing sinister in
February 12, 2015, Kate and Kathleen met for coffee at which
time Kate informed Kathleen she would never allow Kathleen or
the other children to see Child again, and she would call the
police and get a restraining order if Kathleen attempted to
this conversation, Kathleen had several interactions with
Child. Kathleen suggested that three of these occasions were
coincidental, such as seeing Child and Kate at a nearby park.
On one occasion, Kathleen intentionally approached Child
while he was playing outside at his new daycare. On another
occasion, Kathleen appeared at Kate's brother's house
and got out of her car and took a video. The court believed
these intentional interactions could be seen as concerning or
scary to Kate. David Clark, Ph.D. (Dr. Clark), an expert who
performed a psychological evaluation of the parties, opined
Kathleen did not understand boundaries. The court agreed with
Dr. Clark's conclusion that Kathleen approaching Child at
his daycare was an act of poor judgment but recognized
Kathleen was grieving Child's loss after being abruptly
cut off from him. Kathleen has not seen Child since April
court found the relationship between the parties and the
family unit became strained after Child's birth. Kate
testified that after Child's birth, she observed Kathleen
avoid the children by going to her room to sleep, sleeping on
the family couch with her back to the family, and by spending
time outside the house. Kate testified Kathleen would
"ice out" Kate, L.M., and E.M. when she was angry
or upset by ignoring them or withholding attention and
affection and that she had begun to do this to Child. Kate
testified she believed this amounted to psychological abuse.
Kate testified the household was chaotic. Kathleen agreed the
house was chaotic but not in a way that would put Child at
parties testified they had different parenting styles.
Kathleen testified Kate is a good mother to Child and is not
unfit. Kathleen testified Kate complained about her parenting
of L.M. and E.M., specifically indicating Kathleen needed to
be stricter with L.M. Kathleen testified L.M. was not an easy
child to parent and discipline and that she had L.M.
evaluated twice at Kate's behest during their
relationship. Kathleen testified L.M. has since been
reevaluated and received a diagnosis of Attention Deficit
Hyperactivity Disorder. L.M. is not currently receiving
counseling because his behavior has improved but has received
it in the past and it is available to him in the future.
Kathleen testified she has sought counseling, which includes
discussions on how she can be a better parent.
asserted the home environment presented an unsafe environment
for Child, in particular L.M.'s conduct and
Kathleen's parenting and alcohol use. Kate believed
Kathleen was too passive and she should have been more active
in parenting. Kate testified Kathleen would ignore L.M.'s
behavior and then would explode in anger that was out of
proportion. Kate testified these episodes would end with the
whole house crying and Kathleen exiting the home. Kate
testified she witnessed Kathleen drag L.M. through the house,
throw him on a bed, and hold him up by his neck against the
wall. While the trial court made no specific factual finding
as to Kate's allegation, it did not find Kathleen was
unsuitable to parent but instead concluded Kathleen was
capable of being a good parent to Child. Furthermore, Dr.
Clark found Kate's allegations regarding Kathleen's
abuse and neglect of the children unsupported by collateral
testified she felt Kathleen's inadequate parenting of
L.M. and E.M. and their behaviors toward Child were unsafe
and dangerous. By way of example, Kate presented the court
with a video of the children playing with Child when he was a
baby to support her belief the play was too rough. The court,
however, disagreed with Kate's assessment, believing the
video evidenced typical sibling behavior as opposed to a
dangerous or unsafe situation. The court found no evidence
L.M. and E.M.'s behaviors or Kathleen's parenting of
them diminished Kathleen's ability to provide an adequate
and stable environment for Child. The court also found
Kate's stated concerns that L.M.'s teasing or
"rough" play with Child rose to a dangerous level
not supported by the evidence.
court ordered the parties to be seen by Dr. Clark for a
psychological evaluation. The initial purpose of the
evaluation was to address Kate's accusations that
Kathleen was emotionally unstable; was depressed and/or
suicidal; displayed a pattern of out-of-control drinking,
including drinking and driving with her children and
attempting to do so with Child; is or has been a
dysfunctional parent to the children; and has stalked Child.
Dr. Clark diagnosed Kathleen with Major Depressive Disorder
in Full Remission, finding no indication Kathleen's
parenting competence was compromised by her depression or
that it was necessary for her parenting time with Child to be
restricted in any way due to the condition. Dr. Clark
concluded Kathleen did not meet the diagnostic criteria for
Alcohol Use Disorder as defined by the DSM-V and found no
evidence alcohol impaired Kathleen's functioning in any
areas of her life.
Child's birth, Kate told Kathleen she did not want her to
drink but Kathleen continued to do so. Kate asserted Kathleen
came home intoxicated once or twice a week and would drink
and drive both with and without the children in the car.
Kathleen testified she made so many changes at Kate's
request, she decided to pick her alcohol use as the one thing
she would not change. Throughout trial, Kathleen maintained
Kate exaggerated her alcohol use. Kathleen indicated she had
never been told by anyone besides Kate that her drinking was
a problem or that she needed help for her drinking. The court
found this assertion was not necessarily true and believed
the credible evidence was that alcohol was an issue in
Kathleen's life. For example, the court noted
Kathleen's inappropriate posting of photographs on social
media featuring her children posing with alcohol; and two
instances when Kathleen became so intoxicated she could not
remember the previous day's events or did not know where
she was. The trial court found the credible evidence
indicated Kathleen's past alcohol use had occasionally
hindered her ability to function and it was clear alcohol had
been an issue in the parties' relationship, with
Kathleen's alcohol use and alleged abuse a frequent
subject of counseling and ...