The Missouri Court of Appeals', Eastern District,
decision in K.M.M. v. K.E.W. highlights
potential struggles in custody when the parties involved are a same-sex,
unmarried couple with a child conceived by artificial insemination. The decision dodged the constitutional equal
protection violation question and instead reached a resolution grounded in
third party custody statutory factors. While the holding of the Eastern
District is equitable given the circumstances, it does not solidify any rights
for the non-biological parent in a same-sex custody situation.
I.
Facts and Holding
K.M.M. (“Kathleen”) and K.E.W. (“Kate”) began a committed
romantic relationship in October 2007.[1] They lived together from the
summer of 2008 until their separation in January 2015.[2] During their relationship, Missouri did not
recognize the right of same-sex couples to marry, so Kate and Kathleen merely
lived together as a family along with Kathleen’s two children from a prior
relationship.[3] The parties decided to have a child together
and that Kate would carry the child.[4] On April 11, 2011, they
executed documents with a fertility clinic outlining the guidelines and consent
to artificial insemination.[5] The documentation included a statement that
the child would be entitled to the same rights and support as a child conceived
naturally and all documents were signed with Kate as the patient and Kathleen
as the partner (at times, crossing out the word spouse).[6]
Kate became pregnant in October 2011.[7] Throughout Kate’s pregnancy, Kathleen carried
medical insurance for Kate as her “domestic partner” and contributed to the
costs associated with the child’s birth.[8] Kathleen attended doctor visits and ultrasounds
during the pregnancy and was present during the birth of the child, B.W. (
“Child”), even cutting the umbilical cord.[9] After Child’s birth, the parties operated as
a family with Kate being the primary caregiver, but with Kathleen assisting in
the day-to-day care of Child and continuing to financially support Child and
carry health insurance for him.[10]
The parties’ relationship deteriorated, and on January
17, 2015, Kate unilaterally moved from the parties’ home with Child while
Kathleen was out with her other children.[11] Kate and Kathleen initially reached a
visitation schedule, but Kate subsequently told Kathleen that she would never
let Kathleen or her children see Child again, stating that she was afraid of
Kathleen and she believed this was in Child’s best interests.[12] Kathleen filed a petition seeking to
establish legal parentage of Child and for breach of contract of the custody
agreement, which Kate responded with a Motion to Dismiss for Failure to State a
Claim.[13]
Various evidence presented at trial indicated Kate
believed Kathleen was not fit to be a mother due to drinking, anger problems,
and her general parenting style.[14] Kate argued there was no existing bond
between Child and Kathleen and that during the parties’ relationship, Kate had
been more bonded to Child than Kathleen.[15] The Guardian Ad Litem (“GAL”)
recommended sole legal custody to Kate, but suggested joint physical custody.[16] The Circuit Court, St. Louis County,
ultimately found there was a familial relationship, but that “Kathleen had not
rebutted Kate’s presumptive authority or demonstrated it was in Child’s best
interest she be awarded any custody or visitation.”[17] The court subsequently denied both Kathleen
and the GAL’s motions requesting it to reconsider and Kathleen appealed.[18]
II. Legal
Background
Missouri law establishes in situations where a husband
and wife consent to the wife being artificially inseminated with semen donated
by someone other than her husband under the supervision of a licensed physician,
“the husband is treated in law as if he were the natural father of a child
thereby conceived.”[19] All consent must be certified in writing, but
in the event of an error, the father-child relationship shall not be affected.[20] No Missouri cases except K.M.M. v. K.E.W. assess this statute in terms of same-sex couples.
In outlining custody determinations, Missouri law sets
forth various factors to create a best interest of the child analysis to
determine whether one or both parties are fit to have custody and make
decisions regarding a minor child.[21] The factors are balanced
against one another.[22] In addition to determining custody when the
two parents are involved, third-party custody is taken into consideration and
can be awarded if the welfare of the child requires.[23] It is only when a basis is shown under
Section 452.375(5), such as welfare, that the trial court is required to
determine whether it is in the best interests of the child to award custody or
visitation to a third party.[24] If there is no basis for a welfare or other
Section 452.375(5) determination, “the question of the child’s best interests
is never reached.”[25]
III.
Instant Decision
The Missouri Court of Appeals,
Eastern District, reversed the circuit court’s decision in part and remanded
for further determination of “whether Kathleen would be a suitable custodian
who is able to provide a stable environment for Child and whether an award of
custody or visitation to Kathleen would be in Child’s best interests.”[26] In finding that “Kathleen did not rebut
Kate’s presumption of parental authority, the [trial] court found the ‘best
interest’ standard was not met by Kathleen” which the Eastern District found to
be incorrect.[27]
It found the trial court improperly combined the analysis required when
assessing the bonded parent-child relationship and the best-interest analysis
which tainted their determination.[28]
IV.
Comment
The Eastern
District reached the right decision in partially reversing the decision of the
trial court and instructing the trial court to correctly follow the analysis
set forth by statute. The trial record had “substantial and overwhelming”
evidence to demonstrate a significantly bonded relationship which could warrant
an award of third-party custody per the factors under Section 452.375(5).[29] The error in the trial court was not giving a
“separate and distinct analysis” for assessing the welfare of the child and the
best interests.[30] In muddling the two tests, the court
misapplied the factors in its analysis which resulted in a holding that
disregarded an establish bonded relationship between a parent and child.[31] The language of Section 452.375(5) indicates the
use of the word “and” indicates there must be a welfare basis. [32] Then, if the welfare
basis is established to warrant an award of third-party custody or visitation,
the best interest factor will be determined after and separately.[33]
Here,
the Eastern District also needed to rectify the holding in order to provide for
the best interests of the minor child which, given the facts, would require visitation
with Kathleen.[34]
Missouri courts attempt to reach a resolution not only sound in law, but also
one that is sound given the circumstances of the case. In such third-party situations, Missouri
courts have held custody may be awarded to a third party if for some special or
extraordinary circumstance, it is in the best interests of the child and
regardless of whether the natural parent is unfit.[35]
The
circumstances in K.M.M. v. K.E.W. certainly
were extraordinary in that Kathleen’s relationship with Child was not intended
to be that of a third party when Child was born.[36] Various documents were executed throughout
the artificial insemination process.[37] The Missouri Artificial Insemination Statute
treats a consenting husband as the natural father of the child conceived.[38] Kathleen and Kate, two women, were unable to
marry at the time of Child’s conception, but their execution of documents which
designated Kathleen as Kate’s “partner” are indicative of their intent to
designate Kathleen as the other natural parent of Child.[39] The trial court’s holding which provided no
means for Child to have any relationship with Kathleen warranted a
reconsideration in light of the facts of the case and intent of the parties in
conceiving Child.
- Alyssa D. Smith
[1] K.M.M. v. K.E.W., 2017 WL 4365570,
at *1 (Mo. Ct. App. 2017).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at *2.
[8] Id.
[9] Id.
[10] Id.
[13] Id. at *1.
[14] Id. at *4.
[15] Id. at *6.
[16] Id.
[17] Id.
[18] Id.
[19] Mo. Rev. Stat. §210.824(1) (2016).
[20] Id.
[21] Mo. Rev. Stat. §452.375 (2016).
[22] Id.
[23] Mo. Rev. Stat. §452.375(5) (2016).
[24] Jones v. Jones, 10 S.W.3d 528, 535
(Mo. Ct. App. 1999).
[25] Id. at 535-526.
[26] K.M.M. v. K.E.W., 2017 WL 4365570,
*14 (Mo. Ct. App. 2017).
[27] Id. at *13.
[28] Id. at *13-14.
[29] Id. at 13.
[30] Id.
[31] Id.
[32] Jones v. Jones, 10 S.W.3d 528, 536
(Mo. Ct. App. 1999).
[33] Id.
[34] See generally K.M.M. v. K.E.W., 2017 WL 4365570, at *1 (Mo. Ct.
App. 2017).
[35] In re K.K.M., 647 S.W.2d 886, 890
(Mo. Ct. App. 1983).
[36] K.M.M. v. K.E.W., 2017 WL 4365570,
at *1 (Mo. Ct. App. 2017).
[37] Id.
[38] Mo. Rev. Stat. § 210.824(1)
(2016).
[39] K.M.M. v. K.E.W., 2017 WL 4365570,
at *1 (Mo. Ct. App. 2017).
