Third-Party Child Custody: A Non-Biological Parent Will Get His Day in Court

The Missouri Supreme Court recently decided a case that has the potential to significantly impact the area of family law.  In In re T.Q.L., the Court in a unanimous opinion reversed the lower court’s ruling that denied a man’s attempt to gain third-party custody and visitation of a child who was unrelated to him.  The Court held that the man could petition the court for third-party custody and visitation.

The facts of this case are dramatic.  A mother’s ex-boyfriend sought custody of his child.  The child was born in 2003 while the ex-boyfriend, the petitioner in this case, and mother were involved in a romantic relationship.  Mother told petitioner that he was the father of the child, and petitioner and mother entered into a pre-birth agreement regarding the child’s custody and support.  This agreement specifically stated that petitioner would support mother and the child contributing $100,000 for a house and $2,500 in monthly child support payments, as well as purchasing life insurance policies benefitting the mother and child.  By 2007, the couple’s relationship had failed.  Petitioner, who was not listed as the child’s father on the child’s birth certificate, filed a petition for declaration of paternity in order to seek custody and visitation rights.  It was not until this time that mother told petitioner that he was not the biological father of the child.  Rather, the biological father was a Brazilian man named “Jack” with whom mother had a one-night fling.   Mother had no way of contacting Jack and did not even know Jack’s last name.  By the time that petitioner became aware of this shocking news, he had already formed a parental bond with the child.  He was the only father the child had ever known.

In this situation, the petitioner is considered a third-party in the view of the court.  He is not biologically related to the child.  Prior to the court’s decision in this case, third-party custody petitions were only recognized if there was a divorce or custody modification proceeding pending.  Here, petitioner and mother were never married.

Third-party child custody or visitation can be awarded in two situations: (1) when a court finds that both the child’s biological parents are unfit or unable to be custodians; or (2) where the welfare of the child requires that a third-party be awarded custody or visitation.  The third-party child custody or visitation must also be in the best interest of the child.  The persons requesting custody must be suitable and able to provide an adequate and stable environment for the child.

The trial court and appellate court had dismissed the case, stating petitioner had not put forth a legal theory where custody could be determined.  However, the Missouri Supreme Court reversed the lower courts, holding that petitioner’s petition was sufficient to allege the elements required to meet a cause of action for third-party custody.  The Court found that the petitioner had plead enough facts, that if found to be true, would be enough to show that both mother and the unknown biological father were unfit parents.  Also, there were enough facts alleged that, if found to be true, would also show that petitioner having custody of the child would be in the child’s best interest.  Petitioner alleged that he had extensive contact with the child and had formed a substantial parent/child bond.  By reversing the lower court’s decision, the Supreme Court gave petitioner his day in court where he will have the opportunity to plead his case on why he should be granted custody of the child.

The outcome of this case suggests that a divorce or custody modification proceeding is no longer a prerequisite for the filing of a third-party custody petition.

This decision has both pros and cons.  Father figures who believe that they are the biological father of their children will have an easier time seeking custody of their children in cases where the mother and biological father are unfit parents.  On the other hand, by making the process easier, there is a potential for a flood of litigation by third-parties seeking to disturb their former girlfriends’ lives.  It will be interesting to see how far the Court will allow third-party custody actions to proceed.

About 

Kathleen E. Shaul concentrates her practice exclusively in family law with an emphasis in divorce litigation. Prior to attending law school, Ms. Shaul taught high school English in Chicago. She is a certified Guardian ad Litem and is passionate about children’s issues.

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