The Law Office of Kurt H King

February 23, 2012

Court Decides Not to Recognize an Equitable Claim for Child Custody by Nonparent

Facts:  man believes he is the father of the child born to the lady who lives with him;  man supports the child financially; he later files paternity case and discovers the child is not his–thus no relationship to the child by blood, adoption, or marriage. 

Regardless, guy petitions the court for custody rights to the child.   The court of appeals ultimately denies the father’s claim for equitable custody rights to the child as the man is a nonparent.

The court’s decision avoids opening Pandora’s box to address the almost infinite custody, visitation, support, and inheritance/probate issues that would arise once we step outside of the traditional family box formed by ties of blood or by legal adoption. 

See In Re The Matter of T.Q.L., M.M.A. v. L.L., and the Unknown Father, decided by the Southern District of the Missouri Court of Appeals in Slip Opinion SD31142, filed 02-14-2012.  It remains to be seen whether the decision will be appealed to the Missouri Supreme Court or if that court will take the case for its review.

However, it is not difficult to see how the decision impacts non-tradional family structure.  For instance, custody claims by a gay person against his or her partner who either gave birth to the child or adopted the child appear to be foreclosed as such a person seeking custody rights is a “nonparent.”  Consider too surrogate mother situations and the battles that could arise in that arena.

And, should a “nonparent” same sex partner obligated to pay child support by a sperm donor organization’s agreement or state statute for a child born to her mate have custody or visitation rights to the child?  Is it fair to have to pay child support but not have custody or visitation?

(Missouri statutes 210.824 and 193.085(9) address only instances where the married woman, with her husband’s official consent, is Artificially Inseminated with another man’s sperm under the supervision of a licensed physician.  In such cases, the husband and wife are both considered by law as the natural paents of the child.  And, the sperm donor is “treated in law as if he were not the natural father of a child thereby conceived.”)

The pressure on the law from same sex relationships and nonparent claims of custody and visitation piles on from many directions and varied formations.  This court’s limitation of custody to parents seems a sound course to maintain but there are sure to be hard cases where the nonparent is the only adequate person to have custody of the child.  What happens when denying the nonparent leaves the child with a parent who is unfit or nearly so?  Does the child fall to foster care and leave a “second” mom or dad in the wake?

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Child Custody & Support,  Paternity,  Divorce & Modification

Bankruptcy, Personal Injury, Workers’ Compensation

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