Missouri is considered a somewhat permissive state in the area of visitation rights, although winning a case is still far from easy. Grandparents can sue for visitation rights in the following instances:
- The parents are divorced or have filed for divorce. Grandparents may intervene in a pending divorce suit or file to modify an existing order.
- One parent is deceased and the other has denied visitation to the parent of the deceased parent.
- The grandchild lived with the grandparent for at least six of the 24 months preceding the filing of the petition.
- The grandparent has been "unreasonably" denied visitation for 90 days or more. However, if the "natural parents" are legally married to each other and are living together with the child in what is sometimes called an "intact family," a grandparent may not file for visitation under this provision.
It is not necessary for the parents to have been married for the grandparents to seek visitation. This is true even if the grandparents' child has not been involved in the child's life.
As in every other state of the Union, courts are instructed to consider the child's best interests. It is presumed that parents living together know what is in their child's best interests, but this is a "rebuttable presumption," meaning that the burden of proof is on the grandparents.
Missouri statutes allow the court to appoint a guardian ad litem, order a home study or consult with the child in order to determine the child's best interests.
Although mediation is not specifically mentioned in the Missouri statutes, it is often suggested as a better way to resolve disputes and is usually supported by the courts. Mediation can be a good option because it is less expensive, more private, faster and less confrontational. Even when mediation isn't wholly successful, it is generally less destructive to family relationships than a lawsuit.
Law Upheld as Constitutional
Following the U.S. Supreme Court case of Troxel v. Granville, which gave special weight in visitation cases to the decisions of parents, many states had their visitation statutes challenged. Missouri's challenge came in 2002 in the case of Blakely v. Blakely. In finding for the grandparents, the Missouri Supreme Court upheld the constitutionality of its statute, listing several differences between it and the Washington State statute challenged in Troxel. It cited the following differences:
- The Washington statute concerned third-party visitation; Missouri law limits visitation to grandparents.
- The Washington statute did not have the 90-day requirement.
- In Missouri grandparents bear the burden of proving that visitation was "unreasonably" denied.
- Missouri provides the procedures named above to assist judges in determining best interests.
Critics of the Blakely v. Blakely decision point out that the law gives no special weight to a parent's decision, as the Troxel decision seems to demand.
A 2013 Missouri Case
In the 2013 decision of T.W. and R.W. v. T.H., a Missouri Court of Appeals found that a lower court had overstepped its bounds when it gave a grandmother visitation that amounted to around 20% of the available time with the child.
The appeals court found that this amount of visitation was typical of what might be given to a parent and not what a grandparent should expect. As a result, the award of visitation "impermissibly impinges on the mother's fundamental constitutional right," the court ruled.
The court based its decision on the part of the law that states that 90 days can pass before a grandparent can file suit, "This indicates to the courts that visitation should not be excessive, should not be on a par with parental visitation in custody matters, and should not necessarily be commensurate with the contact the grandparents enjoyed prior to the deterioration of relations between the parties."
In Missouri, it is quite common for litigants in family court to represent themselves. Serving as one's own lawyer is known as pro se.
The main reason individuals choose to represent themselves is the cost of legal representation. In the last decade or so, Missouri has taken some steps to support pro se litigants.
In Missouri, adoption may put an end to a grandparent's right to visitation. An earlier version of the law stated that grandparents could sue for visitation if a grandchild was adopted by a stepparent, grandparent or other blood relative. This version was replaced by the simple statement, "The right of a grandparent to maintain visitation rights pursuant to this section may terminate upon the adoption of the child."