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State of the Law
Under Missouri law grandparents are entitled to court ordered visitation under a number of circumstances. The Missouri courts and legislature have recognized the important relationship between grandparents and children, and have provided a statutory framework to determine when visitation has been wrongfully denied.
Prerequisites for Grandparent Visitation
The grounds under which grandparent visitation may be ordered are codified at § 452.402 RSMo. Before a court may order grandparent visitation one (1) of the following circumstances must exist:
- The grandchild’s father or mother is deceased and the surviving parent has denied visitation to the parents of the deceased father or mother; or
- The grandchild has resided in the grandparent’s home for at least six (6) months within the preceding twenty four (24) months; or
- The grandchild is adopted by a step-parent, another grandparent, or another blood relative; or
- The grandparent is unreasonably denied visitation for a period of ninety (90) days, and the grandchild’s parents are not married and living together with the child; or
- The grandchild’s parent’s have filed a pending action for dissolution of marriage (grandparents may intervene on issue of visitation).
Additional Factors Considered by the Court
Assuming that one (1) of the prerequisites listed above is met, the court analysis is not over. In addition to finding grounds for one (1) of the prerequisites, the court must also make a determination that grandparent visitation is in the child’s “best interest” and that such visitation will not endanger the child’s physical health or emotional development.
The trial court is vested with broad discretion in determining whether grandparent visitation is in the child’s best interest. There are many factors that a court may consider when determining a child’s best interest. Some important areas of consideration are the previous relationship between the child and grandparent, the parties’ physical and mental health, the child’s age and development, and distance/travel.
There are a number of tools available to the court in making a best interest determination:
- The court may order a home study. A home study is an investigation and report on the child’s custodial arrangements performed by an independent third party. The report is often prepared by the county welfare office, the county juvenile officer, or some other State agency. The investigation often will involve a visit to both the child’s current residence and to the grandparent’s home.
- The court may appoint a Guardian ad Litem (GAL). A Guardian ad Litem is a licensed attorney appointed by the court to represent the child’s interest. The Guardian ad Litem will often interview the child’s parents, the grandparents, and the child.. The GAL may also review school records or other sources of information. The GAL will then submit a report to the court.
- The court may (in its own discretion) interview the child regarding the child’s wishes. This interview may occur in chambers – outside the hearing of the parents and/or grandparents.
In circumstances where the child’s natural parents are married to each other and living together with the child, statute provides that the court must begin with a presumption that the parent’s decisions concerning grandparent visitation represent the child’s best interest. This presumption is not absolute, however, and may be rebutted by evidence at trial.
Mediation as an Alternative
There are some circumstances where differences between a child’s parents and grand parents may be resolved without formal litigation. In such circumstances, a grandparent may request that the court order mediation between the parents and grandparent concerning visitation with the child.
Mediation is an opportunity for the parents and grandparent(s) to meet with a neutral court appointed mediator to discuss present disputes concerning grandparent rights or visitation. The mediator will listen to both sides, and can make recommendations concerning appropriate visitation. The mediator’s recommendations are not binding on the parties, but may help the parties resolve minor disputes.
The requirements for seeking mediation are significantly lower than those for seeking court ordered visitation. The only showing that a grandparent must make in order to receive mediation is that such grandparent has been denied visitation with the child. This means that if a grandparent cannot establish one (1) of the prerequisites for grandparent visitation, he or she is likely still eligible for mediation.
Third-Party Custody In Cases of Abuse or Neglect
Courts recognize that under certain circumstances the best interest of a child requires custody be awarded to some person other than the child’s natural parents. In such circumstance a grandparent may be the best person to exercise custody in lieu of the natural parents.
Before a court may award custody of a child to person other than the child’s natural parent(s), the court must find that both natural parents are unfit, unsuitable, unwilling, or unable to be the child’s custodian, or that some other extraordinary circumstance exists. The most common extraordinary circumstance is a child who has been raised for many years by a grandparent while the natural parent has been absent.
Attorneys at Cline, Braddock & Basinger, are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free consultation.