Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri held that section 452.375 of the Missouri Revised Statutes was constitutional and not applied retroactively to a convicted felon prohibited from having unsupervised visitation with his children due to a post-conviction amendment to section 452.375. The court stated that no one has a vested right in the “anticipated continuance of the existing law.”[2] The court also held that the statute did not deprive him of his fundamental right to associate with his children because he was allowed supervised visitation; nor did the statute violate his equal protection rights.
James Cannon was convicted of first degree statutory rape and first degree statutory sodomy and imprisoned. After being paroled, he sought gradual unsupervised visitation with his two children, with whom he had only supervised visitation pursuant to a 2000 dissolution decree. Randall, Cannon’s ex-wife, had sole legal and physical custody.[3] The trial court found that a 2005 amendment to section 452.375, which prevented Cannon from seeking unsupervised visitation or custody because of his convictions, would, if applied to Cannon, “‘retroactively’ take away [his] fundamental right to associate with his own children . . . without due process of law” and violate the equal protection clauses of the United States and Missouri constitutions by impinging on that fundamental right.[4]
The Supreme Court of Missouri reversed and remanded, holding that section 452.375 as amended was not retrospective in its operation and did not deprive Cannon of his fundamental right to associate with his own children. The court determined that supervised visitation struck a “reasonable balance” between the children’s best interests and the parent’s right to associate.[5]
II. Legal Background
Missouri Constitution Article I, Section 13 prohibits the legislature from enacting a new law that impairs vested rights established under existing laws or creates a new obligation solely based on past transgressions.[6] Yet a statute is not deemed retroactive just because it applies to events that have already occurred or “fixes the status of a person for the purpose of its operation.”[7] Moreover, a vested right is more than “‘a mere expectation based upon an anticipated continuance of the existing law,’ because no one has a vested right that the law will remain unchanged.”[8] The amended section 452.375 presently prohibits a convicted rapist from getting custody or unsupervised visitation of his children if the victim of his crime was a child.[9] Yet before Cannon’s conviction and at the time Cannon and Randall dissolved their marriage, Missouri law prevented someone found guilty of statutory rape and statutory sodomy from being awarded parental custody of his child only if the victim was also his child.[10] Thus, Missouri courts were able to grant custody or unsupervised visitation to Cannon until the law was amended in 2005.
In this case, the Supreme Court of Missouri construed Cannon’s argument that section 452.375 was unconstitutionally retroactive as a claim to a vested right to seek unsupervised visitation.[11] Citing La-Z-Boy Chair Company v. Director of Economic Development,[12] it found that, even though Cannon failed to anticipate an amendment that would bar him from unsupervised visitation, the amended section 452.375 was not applied retroactively because Cannon never had a vested right in the law remaining the same.[13] Yet if a vested right is not at issue, then the law must “impose an additional obligation based solely on past actions” to be deemed unconstitutionally retrospective.[14] The court found that, since Cannon retained his ability to engage in supervised visitation before and after section 452.375 was amended, no additional obligation had been imposed.
Cannon also claimed section 452.375 violated his fundamental right to associate with his children and his equal protection and due process rights. U.S. Supreme Court precedent requires courts to balance a parent’s right to associate with her children with the state’s duty to protect minor children according to their best interests.[15] As such, Missouri statutes allow a court to impose supervised visitation if unsupervised visitation “would endanger the child's physical health or impair his emotional development.”[16] Missouri courts, for instance, have found supervised visitation to best balance the interests of the child and parent when a court determines the parent sexually abused the child.[17]
In holding that supervised visitation similarly struck a “reasonable balance,” the Supreme Court of Missouri deferred to the legislature’s reasoning for amending section 452.375 – namely, that unsupervised visitation with someone convicted of first degree statutory rape and sodomy was too risky for minor children.[18] It also cited a similar case in Louisiana[19] to find that, since the statute did not prevent Cannon from visiting and establishing a relationship with his children, it did not violate his fundamental right to associate with them.[20] As for Cannon’s claim of an equal protection violation, the court essentially dismissed it, noting that the state has the authority to protect children, particularly during the dissolution of a marriage in which a child becomes “an object of conflict.”[21]
III. Commentary
A court’s duty to balance a parent’s right to associate with his children and the state’s responsibility to minor children can be hard to meet, particularly with facts such as these. Arguably, the court’s balancing was made easier by deferring to the legislature’s finding that those convicted of first degree statutory rape and sodomy were too much of a risk to be granted unsupervised visitation or custody. Certain facts also made this case relatively straightforward and simple. For one, Cannon had been proven guilty of statutory rape and sodomy beyond a reasonable doubt. The court noted that, had Cannon only been found to have committed rape and sodomy by a lesser standard of proof, its decision may have been harder to reach.[22] Moreover, it would be an entirely different issue if Cannon had previously been granted custody or unsupervised visitation only to be limited to supervised visitation under the amended section 452.375.
In this case, the Supreme Court of Missouri’s decision was probably correct. An assumption that the law will stay the same is just that: an assumption. Though Cannon was prohibited from seeking custody or unsupervised visitation, his status never changed after section 452.375 was amended: he could still develop a relationship with his children through supervised visitation.
-Kimberly E. Naguit
[1] 280 S.W.3d 79 (Mo. 2009) (en banc).
[2] Id. at 85 (quoting La-Z-Boy Chair Co. v. Dir. of Econ. Dev., 983 S.W.2d 523, 525 (Mo. 1999) (en banc)).
[3] Id. at 81-83.
[4] Id. at 83.
[5] Id. at 81.
[6] Id. at 84 (citing Doe I v. Phillips, 194 S.W.3d 833, 850-51 (Mo. 2006) (en banc)).
[7] Jerry-Russell Bliss v. Hazardous Waste, 702 S.W.2d 77, 81 (Mo. 1985) (en banc).
[8] Id. at 84-85 (quoting La-Z-Boy Chair Co. v. Dir. of Econ. Dev., 983 S.W.2d 523, 525 (Mo. 1999) (en banc)).
[9] It states, “In any court proceeding relating to custody of a child, the court shall not award custody or unsupervised visitation of a child to a parent if such parent or any person residing with such parent has been found guilty of, or pled guilty to, [crimes including first degree statutory rape and sodomy] when a child was the victim . . .” Mo. Rev. Stat. § 452.375 (Supp. 2006).
[10] It states, “The court shall not award custody of a child to a parent if such parent has been found guilty of, or pled guilty to, a felony violation of chapter 566, RSMo, when the child was the victim . . . .” Mo. Rev. Stat. § 452.375.3 (2000) (amended 2005).
[11] Cannon, 280 S.W.3d at 84.
[12] 983 S.W.2d 523 (Mo. 1999) (en banc).
[13] 280 S.W.3d at 85.
[14] Id. at 84 (citing Doe I v. Phillips, 194 S.W.3d 833, 850-51 (Mo. 2006) (en banc)).
[15] Id. at 86 (quoting Santosky v. Kramer, 455 U.S. 745, 758-759 (1982) and Stanley v. Illinois, 405 U.S. 645, 649 (1972)).
[16] Mo. Rev. Stat. § 452.400.2.
[17] See, e.g., L.J.B. v. L.W.B., 921 S.W.2d 23, 26-27 (Mo. Ct. App. 1996).
[18] Cannon, 280 S.W.3d at 87.
[19] See In the Interest of A.C, 643 So. 2d 719, 727 (La. 1994) (no violation of a fundamental right to associate with one’s children when a parent can maintain a relationship through supervised visitation).
[20] 280 S.W.3d at 87-88.
[21] Id. at 88.
[22] Id. at 87.
