The Missouri Court of
Appeals, Eastern District, decision in Bowers
v. Bowers sets a troubling precedent for all parties involved in custody
battles when there are more than two "parents" hoping to secure
parenting time with their minor children. The complex nature of custody cases
is further complicated with this new precedent that gives additional weight to
the rights of non-biological parents and other third-party individuals hoping
to obtain custody of minor children involved in litigation.
I. Facts and Holding
In 2007, Jessica and Jason Bowers (hereinafter
"Jessica" and "Jason") entered into a romantic
relationship.[1]
Both parties were aware that Jessica was pregnant with a child conceived with
Stephen Nugent ("Stephen") who had agreed to remain uninvolved in the
child's life.[2]
Jessica and Jason decided that Jason would be the child's father, and as such,
Jason executed a Missouri Affidavit Acknowledging Paternity four days after J.B.
was born on April 28, 2008.[3] Jessica and Jason were married nearly two
years later on April 3, 2010, and resided as a family with J.B. until the
parties separated in August 2012.[4] Jason provided financial support for J.B. and
maintained a strong bond with her while Stephen provided no support and had no
interactions with her.[5]
Jason filed his Petition for Dissolution of Marriage, for
Determination of Physical and Legal Custody, and for Order of Child Support on
May 10, 2013, alleging that J.B. was "born of the marriage" and
requesting joint legal and physical custody of J.B. to be shared with Jessica.[6] Jessica filed an answer
and denied that J.B. was "born of the marriage" but designated Jason
as the "legal father" of J.B. and requested joint legal and physical
custody.[7] In January 2014, Stephen filed a Motion to
Intervene and Third-party Respondent's Petition for Determination of
Father-Child Relationship and Judgment and Order of Custody seeking to
establish his paternity and joint legal and physical custody of J.B.[8] The trial court granted
Stephen leave to intervene and, after genetic testing revealed that Stephen was
J.B.'s biological father within a 99.9% probability, Jason filed his Alternative
Motion for Third-Party Custody pursuant to [Section] 452.357.5(5).[9]
The trial court found Stephen to be "unfit,
unsuitable, and unable to be the custodian of J.B."[10] Additionally, the court
found that Jessica's conduct during the litigation was adverse to J.B.'s best
interests.[11] The court, finding that Jessica and Jason
were unable to co-parent, awarded Jason sole legal and physical custody of J.B.
as a third-party custodian and granted visitation rights to Jessica.[12] Stephen was not awarded any custody rights or
visitation, but the court ordered that J.B.'s birth certificate be amended to
reflect Stephen as her father instead of Jason.[13]
II. Legal
Background
The Missouri Uniform Parentage Act ("MoUPA")
defines a "parent" as "either a natural or an adoptive
parent."[14] The MoUPA further provides that third-party
custody or visitation may be awarded when the court finds that "each
parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the
child requires, and it is in the best interests of the child."[15] Despite the ability for third-parties to
petition for custody, "[a] natural parent has the benefit of a rebuttable presumption
that he is the appropriate custodian," thus making it more difficult for
third parties to acquire custody.[16] Accordingly, there are
few cases in which a biological parent loses his or her custodial rights to a
third party.[17] Said cases include extreme facts that put
into issue the welfare of the minor children.[18]
Missouri courts have established that a parent need not
be perfect and that flaws in character or conduct are irrelevant to the custody
proceedings unless this character or conduct could result in actual harm to the
child.[19] For nearly two decades, courts have avoided
the application of the "equitable parentage" doctrine, which allows a
non-parent to be substituted for the natural parent when substitution is done
in the best interests of the child.[20]
The MoUPA does not explicitly define a "natural
father" as a biological father and instead merely designates that there
can be a "natural parent" or "adoptive parent."[21] Further, the meaning of children "born
of the marriage" has been extended to children born before a marriage when
the parents subsequently wed.[22]
III. Instant
Decision
The
Missouri Court of Appeals, Eastern District, affirmed the trial court's
decision to grant Jason third-party sole legal and physical custody of J.B.,
designate visitation for Jessica, and declare Stephen to be the natural father.[23] The majority ignored the
procedural issues inherent in deciding paternity actions in the same preceding
as dissolution actions and held that the issues were rightfully decided
together due to the specific facts of the case.[24]
Jessica
appealed the trial court's findings that she was unfit and that Jason was a
third-party custodian.[25] The majority found that there was sufficient
evidence proving that Jessica was unfit because she and Stephen were both found
to be unfit, the trial court correctly designated Jason as a third-party custodian.[26] The majority noted that Jessica offered no
evidence to convince the court that a different custodial arrangement and
visitation schedule were necessary for J.B.'s welfare. Further, the court noted
that she did not appeal the court's finding that Jason was a suitable custodian
but merely appealed the procedure used.[27]
The
dissent strongly disagreed with the finding that Stephen was J.B.'s natural
father and transferred the case to the Supreme Court of Missouri.[28] The dissent argued that "Jason is J.B.'s
'natural father.' This is not a case requiring an award of third-party
custody."[29] According to the court, Jessica was unfit she
was unable to co-parent effectively with Jason.[30] The dissenting opinion argued
that Jason’s designation as the necessary custodian was contradictory because
if he were a third-party custodian, then Jessica should have been the presumptive
appropriate custodian unless the welfare of J.B. were at issue.[31]
The
dissenting opinion argued for a broader interpretation of the term
"natural father" because the statute could have explicitly stated
that "natural" meant "biological."[32] While the dissenting opinion acknowledged
that Jason was the best parent for J.B., it indicated that he should have been
designated as her "natural father" because a finding that he was a
third-party custodian opened the floodgates for many third parties to sweep in
and take custody of children who already have parents.[33]
IV.
Comment
The
dissenting opinion in Bowers v. Bowers is
correct in its reasoning that designating Jason as a third-party custodian will
set a precedent that will allow stepparents, grandparents, and other
individuals to swoop in and gain custodial rights to children. Such a precedent goes against clear Missouri
law that there is a "rebuttable presumption that parents are fit,
suitable, and able custodians of their children and that their welfare is best
served by awarding their custody to their parents."[34]
The
cases that have divested a natural parent of his or her custodial rights have
included facts that are egregious and extreme.[35] In the present case, Jessica was found unfit
because of her inability to co-parent with Jason and her attempts to alienate
J.B. from him despite that J.B. was close to Jason, and he was the only father
figure she had ever known.[36] While Jessica's conduct is not to be
condoned, it does not prove her to be unfit.[37]
Unfortunately,
there are many cases when stepparents or other people bonded to minor children
lose those relationships to the natural parents.[38] This issue is hard to wrestle with when, like
in Bowers, there is another party who
would be a more ideal candidate for custody of the minor child.[39] While courts may sometimes stretch facts and interpret
them to find an outcome that seems ideal but is contrary to the statutes, this case
has opened the floodgates to stepparents, step-grandparents, and other parties
to fight and potentially obtain custody of minor children by demonstrating that
it is required for the welfare of the child.[40] Missouri and federal law are both clear that
natural parents have a fundamental right to parent their children.[41]
Expanding
the definition of "natural father" to encompass non-biological
parents such as Jason would have been the least drastic way to achieve the
desired outcome in this case without setting a troubling precedent. In finding
that Jason was a third-party custodian, the court has invited cases to be
brought by stepparents and other parties who have meaningful relationships with
minor children but no biological or legal relationship. While this may be ideal in some situations,
it destroys the long-standing notion that natural parents have the right to raise
their children.
- Alyssa D. Smith
[1] Bowers v. Bowers, No. ED 103176,
2017 WL 2822506, at *1 (Mo. Ct. App. June 30, 2017).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id. at *2.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Mo.
Rev. Stat. § 210.817(3) (2012).
[15] Mo.
Rev. Stat. § 452.375(5)(5)(a) (2012).
[16] Cotton v. Wise, 977 S.W.2d 263,
264 (Mo. 1998) (en banc).
[17] Bowers, 2017 WL 2822506, at *5.
[18] See Giesler v. Giesler, 800 S.W.2d 59, 59 (Mo. Ct. App. 1990) (in
which the father was absent and the biological mother neglected the children,
exposed the children to an abusive paramour, and disregarded the children's
school progress and medical immunizations).
[19] In re S.M.H., 160 S.W.3d 355, 372 (Mo. 2005) (en banc).
[20] Cotton, 977 S.W.2d at 264.
[21] Mo.
Rev. Stat. § 210.817(3) (2012).
[22] Jeffries v. Jeffries, 840 S.W.2d
291, 296 (Mo. Ct. App. 1992).
[23] Bowers v. Bowers, No. ED 103176,
2017 WL 2822506, at *1 (Mo. Ct. App. June 30, 2017).
[24] Id. at *3.
[25] Id. at *3-4.
[26] Id. at *4.
[27] Id.
[28] Id. at *5 (Page, J., dissenting).
[29] Id.
[30] Id.
[31] Id. at *6.
[32] Id. at *12.
[33] Id. at *18.
[34] Flathers v. Flathers, 948 S.W.2d
463, 466 (Mo. Ct. App. 1997).
[35] Bowers, 2017 WL 2822506 at *6.
[36] Id. at *2.
[37] Id. at *7.
[38] Id. at *8.
[39] See id. at *7.
[40] Id. at *8.
[41] Jones v. Jones, 10 S.W.3d 528, 528
(Mo. Ct. App. 1999); Flathers v. Flathers, 948 S.W.2d 463, 463 (Mo. Ct. App.
1997); Troxel v. Granville, 530 U.S. 57, 57 (2000).
