Third Party Custody in Missouri- How Much has the Law Changed after In Re T.Q.L.[1] ?

July 26th, 2017

Third Party Custody in Missouri- How Much has the Law Changed after In Re T.Q.L.[1] ?

By:  Brittany E. O’Brien and Heather Rooney McBride


Until recently, a non-parent a/k/a third party could only obtain custody of a child who had a living parent by filing for guardianship or by moving to intervene into an already pending custody proceeding.  Neither of these methods was easy and, arguably, rightfully so, as the state has an interest in preserving the rights of parents in and over their children.


However, in 2012, the Missouri Supreme Court opened another avenue for a third party to petition the court to obtain custody of a child in the case In Re T.Q.L., 386 S.W.3d 135 (Mo banc 2012).  In that case, a man and woman had a relationship, but were never married.  During the pendency of their relationship, the woman became pregnant and had a child. When the relationship ended, the man filed an action for paternity and to obtain custody of the child.  It was later determined that the man was not the biological father of the child. The man, who had believed that the child was his biological child, did not want to give up his pursuit of custody, so he did not dismiss his petition.  The child’s guardian ad litem motioned for the trial court to dismiss the petition for failure to state a claim, and the trial court granted the motion.  The man appealed the decision, and the Court of Appeals reversed the dismissal and remanded the case back to the trial court[2].  He then amended his petition to allege that the mother and the unknown biological father were both unfit parents and asked for third-party custody.  The mother filed a motion to dismiss the man’s amended petition, which was granted by the trial court.  The man once again appealed, and the appeal was transferred to the Missouri Supreme Court.  The Missouri Supreme Court held that the man’s amended petition was sufficient to allege the necessary elements required to meet a cause of action for third-party custody.


What this means is that a non-parent, third party now has the ability to initiate an action in family court to obtain custody of a child.  Nevertheless, although an independent action is now possible, the stringent requirements previously specified by the courts for a third party to prevail in such an action remain.  Under Missouri law, there is a presumption that custody of a child should be with a parent. Blakely v. Blakely, 83 S.W.3d 537 (Mo. Banc 2002).  To rebut this presumption, the third party must show that each and every parent of the child is unfit, unstable, or unable to have custody of the child. Id at 545. Thus, it is only when there is no appropriate parent that a third party will prevail in an action for custody; it is not enough that a child has one parent that is deceased or who is merely inappropriate.  It also is not enough to show that a child is better off with the third-party custodian.  Essentially, the third party must show that both parents are incapable of meeting the child’s essential needs.


The case law thus far only seems to contemplate a third-party custodian seeking sole custody.  It is unclear if the same stringent requirements would apply if a third-party custodian were seeking shared custody, such as a situation where one parent of the child had died, and the living parent was unwilling to allow the child to have contact with the deceased parent’s extended family. The legislature has previously found that a grandparent in that situation has rights by enacting 452.402.1 RSMo., but it only applies to grandparents.  For any other relative or closely associated person, such as an aunt or uncle, he or she would only be able to obtain court ordered custody or visitation if he or she proved that the living parent was unfit, unstable or unable to parent the child.


It is no longer uncommon for people that are not married to have children together, and many step-parents raise children as their own from a very young age. Sometimes extended family members help parents through tough times, effectively “raising” children together.  The law is evolving to address the actual situations that affect real families, but the changes are slow and incremental as the Courts and legislature must struggle to balance the rights of parents with the needs of the child.  Only time will tell if Missouri will continue to give more opportunity to third-party custodians to actually obtain certain custody rights to the children they care for and have an interest in helping raise.

[1] In Re T.Q.L., 386 S.W.3d 135 (Mo banc 2012)

[2] 291 S.W.3d 258 (Mo. App. 2009)