Missouri Custody and Visitation Law
Missouri courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children. Missouri courts have considered a parent’s gender identity or expression in making custody and visitation determinations. Missouri courts will allow a former same-sex partner (with no legal or biological relationship to the children) to petition for visitation.
Custody and Visitation for Gay, Lesbian and Bisexual Parents
Missouri courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children.
Missouri law states: “The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors, including: (1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties; (2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child; (3) The interaction and interrelationship of the child with parents, siblings and any other person who may significantly affect the child’s best interests; (4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent; (5) The child’s adjustment to the child’s home, school and community; (6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm; (7) The intention of either parent to relocate the principal residence of the child; and (8) The wishes of a child as to the child’s custodian. …
“A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child’s physical health or impair his emotional development.”
In a 1998 case, Delong v. Delong, the mother appealed the trial court decree that awarded sole custody to the father, restricted her visitation and ordered her to tell the children that she was a lesbian. She argued that this decision was improperly based solely on her sexual orientation. The appeals court reversed the trial court’s decision and remanded the case for further proceedings. The court held that a parent’s sexual or moral conduct should only be considered in custody proceedings where it directly affected the mental, physical, economic or social well-being of the child. The court went on to state: “In fact, focusing a custody determination on a parent’s homosexual conduct alone may permit a decision contrary to the best interests of the child in a case where the characteristics of the heterosexual parent are undesirable or possibly harmful. A per se approach necessarily ignores the heterosexual parent’s fitness to be custodian, and the application of this approach could conceivably result in an award of custody to the heterosexual parent without any evidence regarding his or her inappropriate heterosexual conduct or parenting skills.”
The case then went before the Missouri Supreme Court in J.A.D. v. F.J.D. II. The higher court reversed the court of appeals decision and reinstated the trial court order except with respect to the visitation order. The Missouri Supreme Court ruled: “A homosexual parent is not ipso facto [by the mere fact] unfit for custody of his or her child … it is not error, however, to consider the impact of homosexual or heterosexual misconduct upon the children making a custody determination.” The high court struck down the limitations imposed on the mother’s visitation with the children — prohibiting the children from being in the presence of “any person known by the mother to be lesbian, and forbids the children to be in the presence of, during visitation periods, of any other female, unrelated by blood or marriage, with whom the mother may be living” — as too broad. The court stated that a court can only limit the conditions to apply to individuals whose presence and conduct may be contrary to the best interests of the child.
In another 1998 case, T.C.H. v. K.M.H., the trial court awarded the father primary custody of the children. The mother appealed this decision arguing, among other things, that the court did not base its order on substantial evidence. Specifically, she argued that there was no substantial evidence that she engaged in a “lesbian lifestyle.” The appeals court found that the trial court did not err and that there was not a lack of substantial evidence to support the finding that the mother had an ongoing same-sex relationship with a friend. The appellate court affirmed that a gay, lesbian or bisexual parent is not per se unfit to have custody a child; rather, the rule was: “There must be a nexus between harm to the child and the parent’s homosexuality.” In this case, the trial court found that the “the relationship is having an ill effect on the morality of the children and will continue to affect their well-being in the future.”
In a 1989 case, J.P. v. P.W., the Missouri Court of Appeals affirmed a trial court’s decision to restrict a gay father’s visitation as to only with the supervision of a responsible adult and that overnight visitation was impractical. The trial court noted: “Private personal conduct by a parent [that] could well have an effect on children during the years in which their character, morality, virtues and values are being formed cannot be ignored or sanctioned by courts. Private conduct of a parent in the presence of a child, or even under some other circumstances, may well influence his or her young, impressionable life.” The Court of Appeals provided a summary of what they believed to be the principles of law in Missouri: “Actually, given its concerns for perpetuating the values associated with conventional marriage and the family as the basic unit of society, the state has a substantial interest in viewing homosexuality as errant sexual behavior which threatens the social fabric, and in endeavoring to protect minors from being influenced by those who advocate homosexual lifestyles.” The Court of Appeals concluded: “Circumstances have been consistently found to require that a child not be placed or remain in the custody of a homosexual parent and that visitation of a homosexual be restricted or terminated.”
In a 1987 case, G.A. v. D.A., a father was awarded custody of the child. The mother appealed, arguing that the welfare of the child would be better served by awarding her custody, even though she was a lesbian. The appeals court upheld the trial court’s decision, reiterating what the court in S.E.G. noted: that a court could not ignore the effect which the sexual conduct of a parent may have on a child’s moral development. It also affirmed that in this case, the child would be “thrust by granting custody to Dena [into an environment that] would not be a healthy one.”
In another 1987 case, S.E.G. v. R.A.G., the wife appealed the trial court’s decision to award custody to the father. She was in a same-sex relationship. The appeals court affirmed the trial court’s award, stating: “We wish to protect the children from peer pressure, teasing and possible ostracizing they may encounter as a result of the ‘alternative lifestyle’ their mother has chosen.” The court went on to state: “Wife and lover show affection toward one another in front of the children. They sleep together in the same bed at the family home in Union. When wife and four children travel to St. Louis to see Airrow, they also sleep together there. All of these factors present an unhealthy environment for minor children. Such conduct can never be kept private enough to be a neutral factor in the development of a child’s values and character. We will not ignore such conduct by a parent which may have an effect on the children’s moral development.”
In a 1982 case, J.L.P. v. D.J.P., a gay father appealed a trial court order that denied him overnight visitation and forbade him from taking his child to a church where much of the congregation was gay and/or to any “gay activist social gathering.” The appeals court found that the findings of the trial court presented “a factual premise that the child’s physical or emotional welfare is threatened by the activities and conduct of the father, which affords a sufficient basis for the trial court to restrict the visitation.”
In another 1982 case, L. v. D., the father was given custody of the children, and the lesbian mother’s visitation with the children was granted only on the condition “that neither K.C. [the mother’s female partner] nor any other female with whom the appellant may be living shall be in the children’s presence or in the appellant’s home during the visits.” The appeals court upheld the custody determination and the restrictions on the mother’s visitation. The appeals court noted that morality is always a factor in determining the custody of children. The court did note, however, that “there maybe cases in which it would not be in error to place children in the custody of a practicing lesbian, but this is not the case.”
Custody and Visitation for Transgender Parents
Missouri courts have considered a parent’s gender identity or expression in making custody and visitation determinations.
In a 1997 case, J.L.S. v. D.K.S., the trial court awarded primary custody to the mother. Visitation with the father was to be delayed by one year, as the father was going through the process of sex-reassignment surgery. The father was also prohibited from cohabiting with other transsexuals or sleeping with a female while exercising temporary custody. The appeals court reversed the visitation award because the evidence did not show that visitation after the waiting period was proper, and said that the trial court needed to determine the mental and emotional state of the parents and the children to determine what was in the children’s best interest. On the issue of the restriction on visitation — i.e., that the father could not cohabit with other transsexual or sleep with a female — the appeals court said that the father cited no authority to back up the argument that this was a violation of his constitutional rights and did not relate to the best interest or welfare of the children. The appeals court affirmed that the court could not ignore the effect which the conduct of a parent may have on a child’s moral development.
In a 1994 case, P.L.W. v. T.R.W., the mother sought to modify the custody decree that awarded both parents joint legal custody, with the mother having primary physical custody and the father having visitation rights. She argued that the trial court did not know all of the facts and circumstances when it made its order: mainly, that the father, during their marriage, had dressed in women’s clothing and masturbated. The appeals court refused to change the trial court’s decree because there was no evidence that the father had continued these practices since the divorce, that such practices ever occurred in the presence of the children and that the behavior had affected the child in any way, or that there had been any conduct after the divorce that could be construed as threatening to the child’s physical health or emotional development.
In a 2004 case, Gould v. Dickens, the mother appealed the trial court’s decision to award custody to the father. The mother’s visitation was restricted to when her boyfriend did not occupy a bedroom with her under the same roof as the child. The appeals court found this restriction to be in error, as the trial court did not make a finding that the child’s emotional development will be impaired or that the child is in physical danger. The appeals court reaffirmed a statement from a previous case where they decided: “The effect of cohabitation, like any other factor, must be determined on a case-by-case basis, always with the purpose in mind of determining the best interests of the child.” The appeals court sent the case back to the trial court for a new trial on the issue of visitation. Because the appeals court was unsure of how much weight was given to the mother’s cohabitation on the custody determination, a new trial on the issue of custody was also ordered.
Custody and Visitation for Same-Sex Co-Parents
Missouri courts will allow a former same-sex partner (with no legal or biological relationship to the children) to petition for visitation.
In a 1996 case, In Re the Matter of T.L., the court awarded the biological mother legal custody and primary physical custody. Her same-sex co-parent, however, was found to be an “equitable parent” and was awarded visitation and the right to be involved in decisions affecting the health, education and welfare of the child. The court defined an “equitable parent” as an “individual who provides for the physical, emotional and social needs of a child and demonstrates that: (1) he had physical custody of the child for an extended period; (2) his motive in seeking parental status is his genuine care and concern for the child; and (3) his relationship with the child began with the consent of the child’s legal parent.”
Citations: MO. REV. STAT. §452.375; MO. REV. STAT. §452.400.2; J.A.D. v. F.J.D. III, 978 S.W.2d 336 (Mo. 1998); Delong v. Delong, 1998 Mo. App. LEXIS 69 (Mo. Ct. App. 1998); T.C.H. v. K.M.H., 784 S.W.2d 281 (Mo Ct. App. 1989); J.P. v. P.W., 772 S.W.2d 786 (Mo. Ct. App. 1989); G.A. v. D.A., 745 S.W.2d 726 (Mo. Ct. App. 1987); S.E.G. v. R.A.G., 735 S.W.2d 164 (Mo. Ct. App. 1987); J.L.P. v. D.J.P., 643 S.W.2d 865 (Mo. Ct. App. 1982); L. v. D., 630 S.W.2d 240 (Mo. Ct. App. 1982); J.L.S. v. D.K.S., 943 S.W.2d 766 (Mo. Ct. App. 1997); P.L.W. v. T.R.W., 890 S.W.2d 688 (Mo. Ct. App. 1994); Gould v. Dickens, 143 S.W.3d 639 (Mo. Ct. App. 2004); In Re the Matter of T.L., 1996 WL 393521 (Mo. Cir. 1996).
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Last Updated: 12/13/2005