Missouri Supreme Court reverses visitation order

The Missouri Supreme Court reversed a judgment in a domestic relations case involving adoption and visitation. In a unanimous Feb. 24 opinion authored by Judge Kelly C. Broniec, the court concluded state law does not allow an independent claim for third-party custody or visitation when custody is not already at issue in an underlying case.

The appeal from Jackson County Circuit Court stems from the circuit court’s judgment that granted plaintiff Alicia Smith, defendant Lora Martinez’s former partner, third-party visitation of Martinez’s children, whom she had adopted.

The two began a relationship in the early 2000s but never married. In 2012, they were granted joint guardianship over twin girls S.H.P. and A.L.P., who were under 2 years old at the time. The following year, the relationship ended, but they continued to share custody of the children under the guardianship agreement until 2019, when both filed competing petitions for adoption of the children.

The circuit court granted Martinez’s petition for adoption on Sept. 28, 2020, and the probate division terminated the guardianship. This was appealed by Smith, but the court of appeals affirmed the decision.

While the appeal was pending, Smith filed a petition seeking third-party visitation or custody under state statute 452.375.5(5), alleging Martinez was unfit or unable to care for the children and that their welfare required custody to be transferred to Smith. Alternatively, she requested visitation rights. Martinez filed a motion to dismiss, arguing that Smith lacked standing under the statute, but the circuit court allowed Smith’s claim to proceed.

Before trial in February 2024, the parties informed the court they had reached a settlement, and the guardian ad litem filed notarized documents outlining a visitation agreement. The next day, Smith’s counsel submitted a proposed judgment based on the agreement. However, Martinez later objected to the judgment, stating she did not consent to it. Despite her objections, the circuit court signed the judgment in April 2024, granting visitation rights to Smith.

Martinez filed a motion to amend the judgment, which was deemed overruled, and she subsequently appealed. While the appeal was pending, Smith filed a family access motion under section 452.400, claiming Martinez had violated the visitation judgment. The circuit court found Martinez in violation, awarded compensatory visitation to Smith and ordered Martinez to pay attorney fees. Martinez appealed this decision as well, and the two appeals were consolidated. The court of appeals affirmed both judgments, after which Martinez sought and was granted transfer to the state’s highest court.

The Supreme Court found that there is no independent cause of action for third-party custody or visitation under 452.375.5(5). Instead, the statute allows third parties to be added to an existing custody dispute, either by the court’s initiative or through a petition to intervene. The high court said that the statute’s plain language does not explicitly or implicitly establish a private cause of action for third-party custody or visitation, and that courts cannot speculate on legislative intent or add language to the statute that does not exist.

“If there is no express creation of a cause of action in the statute’s plain language, courts consider any ‘clear implication(s)’ and legislative intent in the statute,” the opinion stated, referencing Peters v. Wady Indus., Inc. “Legislative intent demonstrating the creation of a cause of action cannot be speculative, and the Court cannot ‘add statutory language where it does not exist(.)’”

Instead, the court clarified that third-party custody or visitation under section 452.375.5(5) can only be considered when custody is already at issue in an underlying proceeding such as a divorce, separation or paternity case. It cannot be pursued independently.

“Finding that third-party custody and visitation is not an independent cause of action but must arise out of an underlying custody dispute is also consistent with this Court’s previous examination of section 452.375.5. In 2017, this Court reviewed a claim brought pursuant to section 452.375.5 in Hanson v. Carroll … In Hanson, grandparents filed a petition for third-party visitation and custody after unsuccessfully seeking guardianship over their grandchild,” the opinion stated. “The circuit court dismissed their case and this Court affirmed … Because the guardianship provided the guardians with custody of the child with full power as provided by law, section 475.120.1, this Court held custody was not at issue and section 452.375.5(5)(a) was inapplicable.”

Smith’s interpretation of Section 452.375.5(5) was ultimately rejected by the court, which reversed the circuit court’s judgment granting third-party visitation to Smith.

“The adoption by Martinez, and the subsequent termination of the guardianship, severed any rights Smith may have had … Like in Hanson, custody was necessarily awarded to the adoptive parent and was not at issue,” the court said. “Smith cannot bring an independent cause of action for third-party custody and visitation after an adoption because section 452.375.5(5) does not create an independent claim when custody is not at issue.”

The case is In re: the Matter of A.L.P. and S.H.P., Case No. SC101121.