K.T.L. ex rel. K.L. v. A.G.
| Decision Date | 28 December 2021 |
| Docket Number | ED 109375 |
| Citation | 648 S.W.3d 110 |
| Parties | K.T.L. BY Her NEXT FRIEND, K.L., and K.L. Individually, Respondents v. A.G., Appellant. |
| Court | Missouri Court of Appeals |
Erin L. Wiseman, 312 E. Capitol Ave., Jefferson City, MO 65102, For Respondent K.L.
Rachel E. Reagan-Purschke, 105 E. Locust, Union, MO 63084, For Appellant.
William C. Robinson, 24 S. Church St., Union, MO 63084, Guardian Ad Litem.
Third-Party Petitioner A.G. (Appellant) appeals the trial court's judgment awarding sole custody and visitation of K.T.L. (the minor child) to the minor child's biological father, K.L. (Respondent or Father). Pursuant to § 452.375.5(5)1 , the Franklin County circuit court found Father was fit, suitable, and able to serve as the minor child's custodian, the minor child's welfare did not require an award of third-party custody, and the minor child's best interests were served by awarding Respondent custody. On appeal, Appellant claims the welfare of the minor child requires an award of third-party custody. We disagree and affirm.
The minor child was born on December 8, 2008, to Mother and Respondent, who were never married. Respondent was not present during the early years of the minor child's life and she lived almost exclusively with her mother until she died on November 29, 2019. Appellant and Mother were friends, living together during the first four years of the minor child's life.
On December 3, 2019, Appellant filed a Petition for Temporary Restraining Order, requesting that the court prevent Respondent, the biological father, from taking custody of the minor child from Appellant.2 Subsequently, the Franklin County circuit court entered a Temporary Restraining Order for a defined period, awarded Appellant temporary custody of the minor child and set the matter for an evidentiary hearing.
However, on December 11, Respondent filed his Petition for Paternity, Child Custody and Visitation in another jurisdiction, Cole County, where he resided.3 Shortly thereafter, he also moved for temporary custody and visitation of the minor child. On March 6, 2020, the court ruled, awarded custody and defined visitation periods to both Appellant and Respondent pending the trial outcome. Subsequently, the Temporary Restraining Order was dismissed without prejudice by the court. Then, Appellant filed her Counter Petition for Third-Party Custody of the Minor Child on July 7.4 On multiple dates between July and September, the parties presented evidence and made their arguments before the trial court.
Respondent is identified as the biological or natural father of the minor child on the birth certificate although he was not actively involved with the minor child during her earliest years. Much of this time he was actively working and serving as the custodial parent for three additional daughters from other relationships. When testifying, Respondent conceded his shortcomings as a father and acknowledged his limited presence in his child's life during her earlier years but blamed Mother and Appellant for discouraging his access to the minor child on multiple occasions. Further, he believed that Appellant loved the minor child and expressed a willingness to allow Appellant to remain in her life if awarded sole legal and physical custody.
As her health declined, Mother suffered from diabetes and related complications. In her testimony, Maternal Grandmother described Father as a "good father," further asserting that the Appellant will prevent the minor child from continuing any type of relationship with family members including Respondent and Maternal Grandmother if awarded custody.
While living with Mother and the minor child, Appellant initially developed her friendship with the minor child that continued after Appellant left the residence. Additional evidence reveals that Appellant interfered with Respondent's relationship with the minor child and she discouraged the minor child from connecting with Father and family members.
More specifically, Appellant made plans for the minor child or otherwise ensured the minor child was unavailable during Father's visitation schedule and she texted the minor child continuously when the minor child was with Father or other family members. Appellant listed herself as the primary legal guardian for the minor child at her school and declined to identify Father as a guardian, emergency contact, or even as someone permitted to transport the minor child from school. After the Temporary Restraining Order was no longer in effect, Appellant failed to notify the school. Generally, Appellant communicated poorly with Father and often delayed responding when Father contacted her to discuss visitation. Additionally, Appellant did not inform Father about the minor child's health developments. On other occasions, Appellant blocked Respondent's cell phone number on Appellant's phone and even removed the minor child from Respondent's home without his knowledge or consent but she claims that Mother directed this conduct on both occasions.
Ultimately, the trial court found Appellant did not meet her burden of proof under § 452.375.5(5)(a), and denied third-party custody. She appealed, claiming the trial court misapplied the "welfare" prong of § 452.375.5(5). Specifically, Appellant argues she presented evidence of a "special or extraordinary circumstance" triggering consideration under the "welfare" prong but that the trial court neglected to make such a finding or analysis.5 Based on her brief however, Appellant ostensibly argues that the trial court decided this matter as against the weight of the evidence, rather than misapplying the law. Thus, this court will focus on the merits of the former claim.
"This Court will affirm the trial court's decision as to an award of child custody unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." K.M.M. v. K.E.W. , 539 S.W.3d 722, 732 (Mo. App. E.D. 2017). "The trial court has broad discretion in child custody matters, and we will affirm its award of custody unless we are firmly convinced that the children's welfare requires otherwise." Flathers v. Flathers , 948 S.W.2d 463, 471 (Mo. App. W.D. 1997).
A reviewing court presumes a trial court decides custody matters in the best interests of the child, especially after recognizing the trial court's ability to assess witnesses and determine credibility. Id. Further, the standard of review prohibits the reviewing court from reversing a custody determination unless the decision is against the weight of the evidence or is contrary to the welfare and best interests of the children. Id. at 471.
The controlling statute in this case, § 452.375.5(5)(a), provides:
When the court finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child, then custody, temporary custody or visitation may be awarded to any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment for the child.
"Section 452.375.5 authorizes a cause of action for individuals seeking third-party rights to custody or visitation of a minor child." Conoyer v. Kuhl , 562 S.W.3d 393, 397 (Mo. App. E.D. 2018) (citing K.M.M. , 539 S.W.3d at 735-36 ). "This action is not intended to be an avenue to custody or visitation rights available to any third party that comes along." Id. (internal quotations omitted).
Under § 452.375.5, there is a rebuttable presumption that the natural parent is fit and suitable to make decisions consistent with the child's welfare and best interests. K.M.M. , 539 S.W.3d at 736 ; Flathers , 948 S.W.2d at 466. To rebut this presumption, the third-party must show that either the natural parent is unfit, unsuitable, or unable to be a custodian (the "fitness" prong) or the welfare of the child requires that custody be awarded to a third-party (the "welfare" prong). See Jones v. Jones , 10 S.W.3d 528, 535 (Mo. App. W.D. 1999).
The parties in this matter have stipulated Respondent is fit and suitable to serve as a custodian for the minor child under § 452.375.5(5)(a). The initial issue before us is whether Appellant met her burden in rebutting the natural-parent presumption under the "welfare" prong. Assuming she has done so and overcome this initial hurdle, then the court proceeds to the next issue, examining the relevant factors to determine whether third-party custody or visitation is in the child's best interests. K.M.M. , 539 S.W.3d at 736. Here, proceeding to the second issue is unnecessary because we conclude that Appellant has unsuccessfully rebutted the parental presumption under the welfare prong.
Missouri case law offers specific guidance on what is required to overcome the parental presumption under the statute's "welfare" prong or if the welfare of the child requires third-party custody. § 452.375.5(5)(a). In particular, there must be proof of a "special or extraordinary circumstance" making it in the child's best interest to award custody to a third-party." K.M.M. , 539 S.W.3d at 736. The analysis required to determine whether the "welfare" prong is met is highly fact-sensitive and, accordingly, each case turns on the unique factual situation. Conoyer , 562 S.W.3d at 399 ; K.M.M. , 539 S.W.3d at 737.
Upon weighing the facts and examining whether special and extraordinary circumstances exist to determine if the parental presumption is overcome, the court is compelled to consider conduct, including the acts of the...
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