Family Law

John W. Dennis, Jr., Esquire

Maternal grandmother sought guardianship against her daughter. Father sought paternity, custody and support. Since the mother was not found to be unfit, unsuitable or unable to have custody of the child, the claim for guardianship failed, and the amount of visitation time granted to the grandmother was so excessive as to impinge on the mother’s constitutional right to raise her child as she sees fit. The fact that the trial court did not designate grandmother’s time as “grandparent visitation,” but rather “third-party visitation,” did not excuse the grant of too much grandparent visitation because the grandmother’s case did not include a request for that relief. T.W. By Next Friend and R.W., Individually (P.) v. T.H. (R.) and C.H. (Intervenor – Respondent.), No. 97661 (Mo. App. E.D., March 12, 2013), Mooney, J.

Mother and Father had one child, but were never married. Mother and child lived with the maternal grandparents most of the child’s life. The relationship between Mother and grandparents (her parents) was tumultuous. Father was rarely in the child’s life.

In 2009, Mother told maternal grandmother she and the child were relocating. In a chaotic reaction to this announcement, Father worked in concert with the maternal grandmother to pick up the child from school and filed an action for paternity, custody and support. The maternal grandmother filed a motion to dismiss the claim, or in the alternative to intervene. Subsequently, the maternal grandmother also filed a petition for guardianship. Although she was granted leave to intervene in the paternity case, the maternal grandmother never filed any pleading for affirmative relief other than her claim for guardianship. The two cases were consolidated for trial. The protracted trial came down to Mother against maternal grandmother when Father curiously left the case before the end of trial, and never submitted to court-ordered drug testing.

The grandmother’s action for guardianship was denied for failure to show the claims of Mother’s unfitness were true. However, the trial court awarded the maternal grandmother what is called “third-party visitation,” pursuant to § 452.375.5(5). The amount of visitation time awarded amounted to nearly twenty-percent per calendar year. It was not granted under § 452.402 (grandparent visitation). Mother appealed.

Held: Reversed as to award of third-party visitation

The failure of the action for guardianship speaks for itself. The attempt to grant visitation to the grandmother when she never asked for it in pleadings or testimony was an erroneous application of law on two fronts.

First, the award of this much visitation to a grandparent is violative of “… the Mother’s fundamental constitutional right to make decisions concerning the care, custody, and control of her child.”

Second, before third-party custody or visitation is awarded, § 452.375.5(5) requires a finding that both parents are unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interest of the child. Such a finding would have run counter to the trial court’s denial of the guardianship claim. Moreover, the grandmother never requested third-party custody either by pleading or testimony. Mother had no opportunity to defend against the relief granted to the grandmother sua sponte. The award of third-party visitation to the maternal grandmother was reversed.

The Uniform Parentage Act (UPA), the Uniform Interstate Family Support Act (UIFSA) and the Uniform Child Custody Jurisdiction Act (UCCJEA) result in bifurcated jurisdiction when the child is conceived in one state (Missouri), but is born and lives in another state (California). DeWitt v. Lechuga, No. 75266 (Mo. App. W.D., February 26, 2013), Pfeiffer, J.

This case may be fact specific in its application. It addresses the application of the Uniform Parentage Act (UPA), the Uniform Interstate Family Support Act (UIFSA) and the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) and how facts of a case may result in “…bifurcated adjudications, where one state adjudicates paternity and child support and another state adjudicates custody and parenting time.”

Certain fundamental facts are undisputed. The child at issue was conceived in the State of Missouri. However, the child has always lived in the State of California.  Father asserted his Missouri claim for a determination of parentage, child custody and support in the State of Missouri more than six months after the child was born in California. Mother subsequently sought a similar relief in California. Mother sought a summary dismissal of all claims in Missouri, and the trial court granted her motion. Father appealed.

Held: Affirmed in part, reversed in part.

Under the UPA, Father could get long-arm service for a declaration of his parentage and correspondingly for child support under UIFSA. However, the UCCJEA governs statutory authority over child custody issues. It is well-settled that the preferential child custody jurisdiction is that of the “home state” of the child. Here the child’s home state had never been Missouri. During the pendency of this action, the California Department of Child Services sought and obtained a court order to determine parentage. Therefore, there is no evidence that the child’s “home state” has declined jurisdiction to act. “Therefore, the Missouri trial court does not have statutory authority to assert its jurisdiction to make a child custody determination in this case.”

The opinion also notes that the determination of parentage should have remained in Missouri. However, since custody jurisdiction is in California and that will affect child support, the court does not address UIFSA jurisdiction. That will be impacted by the child custody determination.

In this divorce action, the parties were awarded virtually 50/50 custody time with their child. The trial court prepared two Form 14’s and subtracted the lower from the higher to determine child support, which was erroneous. Roberts v. Roberts, No. 74995 (Mo. App. W.D., February 26, 2013), Pfeiffer, J.

In this action for dissolution of marriage, Father and Mother were awarded virtually equal physical custody of their child. They each submitted Form 14’s for child support that were rejected. The trial court prepared dual Form 14’s, one as if Mother had custody and the other for Father. The difference between the two became the trial court’s presumed correct child support. Father appealed after filing the appropriate post-judgment Rule 78 motion.

Held: Reversed.

The only appropriate context in which dual Form 14’s are appropriate is in a split custody of multiple children situation. Here there is only one child. The trial court needs to recalculate a single Form 14 with adjustments per the Directions For Use, then make a determination whether the presumed correct support amount is rebutted.