Inadvertent Resurrection of the Equitable Parentage Doctrine in Missouri? An Evaluation of Motions for Third Party Custody and Defining a "Natural Father".

AuthorSchamel, Bailey M.
PositionNOTE

Bowers v. Bowers, 543 S.W.3d 608 (Mo. 2018) (en banc)

  1. INTRODUCTION

    One of the fundamental tenets of family law is that parents have constitutionally protected rights to their children. (1) The oldest protected fundamental right for parents is that of care, custody, and control of their own children. (2) Despite this parental right being established and unquestioned, courts are making surprising decisions as the rise in non-marital childbearing and non-traditional families muddles the question of which adults are best vested with legal rights to children. (3)

    This Note discusses the 2018 Supreme Court of Missouri decision of Bowers v. Bowers, which awarded full custody of a child to her stepfather. (4) The facts in Bowers are discussed in Part II. Part III analyzes the Missouri Uniform Parentage Act and the approaches the Supreme Court of Missouri and Missouri appellate courts have taken when a child's non-biological parent seeks full custody. Part IV explains the Supreme Court of Missouri's rationale in granting full custody to the stepfather through a motion for third party custody and the dissent's disagreement. Finally, Part V discusses why the Bowers court should not have awarded the stepparent custody as a third party and instead should have considered the stepparent to be the "natural father." Part V explores the consequences the decision to award third party custody in this instance could entail.

  2. FACTS AND HOLDING

    This case arises out of a divorce between the birth mother of a child and the man she married, who has no biological relation to the child, and the custody battle over the child that ensued. (5) In May of 2013, Jason Bowers filed for divorce from Jessica Bowers as well as for Determination of Physical and Legal Custody and for Order of Child Support. (6) Jason alleged that J.B. was "born of the marriage," which means he and Jessica were J.B.'s legal parents, and asked for joint legal and physical custody of J.B. with Jessica. (7) Jessica filed two pleadings in response, denying the allegation that J.B. was "born of the marriage" and claiming she was born prior to the marriage; however, she designated Jason as the "legal father" of J.B., which put him on equal legal footing as Jessica, and asked for sole legal and physical custody (8) of J.B. with rights of visitation to Jason. (9)

    Jason and Jessica Bower's romantic relationship began in October of 2007, and it is undisputed that Jessica was pregnant with a child conceived with a different man named Stephen Nugent when the relationship with Jason began. (10) It was agreed during Jessica's pregnancy that Jason, rather than Stephen, should be the father of J.B. (11) Stephen agreed to this decision and voluntarily permitted Jason to act as J.B.'s father. (12)

    Jason attended prenatal medical appointments with Jessica and was present in the delivery room when she gave birth to J.B. on April 28, 2008. (13) Shortly after J.B. was born, Jessica and Jason executed a Missouri Affidavit Acknowledging Paternity ("Acknowledgement"). (14) This resulted in the State of Missouri issuing a birth certificate naming Jason as the "father" of J.B. (15) In April of 2010, about two years after J.B.'s birth, Jason and Jessica got married. (16) Jessica, Jason, and J.B. resided together as a family until Jason and Jessica split in August of 2012. (17) Throughout J.B.'s life, Jason had fulfilled the role of J.B.'s father. He taught her how to walk and how to ride a bike, attended her medical appointments, and provided financial support. (18) During the first five years of J.B.'s life, she did not have any contact or interaction with Stephen, nor did Stephen provide any financial support for J.B. (19) Stephen also had a tendency to leave children he fathered with other women and was not involved in providing emotional or financial support for his children, even the child involved in this custody dispute. (20)

    In January of 2014, Stephen Nugent filed a Motion to Intervene and a Third Party Respondent's Petition for Determination of Father-Child Relationship and Order of Custody ("Motion to Intervene"). (21) Stephen sought to establish his paternity rights and an award of joint legal and physical custody of J.B., pursuant to the Missouri Uniform Parentage Act. (22) Genetic testing was performed, and it was determined there was a 99.9% probability Stephen was the biological father of J.B. (23) As a result, Jessica filed a motion to dismiss Jason's request for custody and support; Jason then filed an Alternative Motion for Third Party Custody pursuant to Missouri Revised Statutes section 452.375.5(5), seeking sole legal and physical custody of J.B. (24)

    The trial court held that Stephen was unfit, unsuitable, and unable to have custody of J.B. (25) The court also found Jessica's contravention of numerous court orders demonstrated she was unlikely to obey future court orders requiring her to allow J.B. to have meaningful contact with Jason. (26) Jessica and Jason's inability to co-parent rendered joint custody impossible, and the court awarded sole legal and physical custody of J.B. to Jason as a third party custodian, with rights of visitation to Jessica and no rights to Stephen (although the court did order J.B.'s birth certificate to be amended to show Stephen, not Jason, as the father). (27) Jessica appealed this decision, claiming the finding that she was unfit or unsuitable to have custody was not based on sufficient evidence and that granting Jason sole legal and physical custody through a third party motion was inappropriate because he was already a party to the dissolution proceeding. (28)

    The Missouri Court of Appeals, Eastern District, agreed with the trial court's decision. (29) The court held Jessica's disregard of J.B.'s medical needs and inability to follow court orders, in addition to other evidence, constituted sufficient indication of her inability to co-parent and supported the trial court's finding that she was unfit or unsuitable to have custody. (30) Additionally, the court held that awarding Jason sole legal and physical custody as a third party custodian was appropriate, despite his current party status in the dissolution proceeding, because all matters regarding custody or visitation of J.B., including paternity determinations, were heard in the same proceeding and all interested parties were given a full and fair opportunity to present evidence and to be heard by the trial court. (31) The dissent in the Missouri Court of Appeals, Eastern District, case disagreed with how custody was awarded to Jason. (32) Judge Lisa P. Page wrote the dissent and concurred in the decision granting Jason sole legal and physical custody but disagreed with the fact that it was granted with a third party custodian motion and argued that Jason--not Stephen - was J.B.'s "natural father." (33) The dissenting opinion began by assuming the majority opinion was correct in finding Jason was a third party and analyzed the holding as if Stephen were the natural father of J.B. (34) Even if this were the case, the dissent argued third party custody was wholly inappropriate. (35) Judge Page cited D.S.K. ex rel. J.J.K. and stated the custody of J.B. could not procedurally be decided within the dissolution of Jessica and Jason if Stephen is J.B.'s natural father. (36) Accordingly, the dissent believed the proceedings in which Jason's claim might possibly have correctly been adjudicated were within Stephen's paternity action or independent cause of action. (37) However, even though the majority held Jason's motion for third party custody was correct procedurally, the dissent still raised substantive issues. (38)

    Despite this confusion regarding the procedural requirements, the dissent argued the substantive law governing the adjudication of third party custody was not confusing. (39) The dissent argued that in order for a third party to be granted custody, according to Missouri common law, the third party needs to show that both parents are unfit or the welfare of the child requires and it is in the best interest of the child for the petitioner to be the custodian of the child. (40) The dissent agreed with Stephen's unfitness but argued that the trial court's determination of Jessica as unfit was tied to her inability to co-parent with Jason. (41) After determining that Jessica was unfit, the trial court awarded Jessica physical custody five of fourteen nights, so the dissent argued she was apparently not an unfit parent outside her inability to co-parent with Jason. (42) After disagreeing with the trial court's holding of Jessica as unfit, the dissent also argued that affirming this award pursuant to the third-party provision in section 453.375.5(5) based on the "welfare of the child" was wholly inappropriate because in the few cases where trial courts have divested a biological parent of custodial rights premised upon the "welfare of the child," the facts are much more egregious than in the Bowers' case, and custody in those cases is often awarded to a biological relative, not a former stepparent. (43) The dissent cited both Giesler v. Giesler and K.S.H. ex rel. M.S.H. v. C.K. in support of this statement. (44) The dissent believed that an award of third party custody should not be premised on a natural parent and former stepparent's inability to get along. (45)

    The dissent stated that a Missouri requirement for awarding third party custody is the unfitness of both parents. (46) Jessica was not unfit because her conduct, while reprehensible, was not comparable to the cases in which Missouri has awarded third party custody like Giesler and K.S.H., and Jason should not be awarded third party custody, assuming Stephen is the natural father. (47) Jason did not provide enough evidence to rebut the presumption of fitness of Jessica as a parent. (48) By granting third party custody to Jason, the dissent argued the majority opinion inadvertently resurrected the concept of...

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