parental immunity in Missouri

2009Under both the common law and § 452.375.5, the parental presumption can be rebutted even though the parent or parents are found to be fit and competent, upon a showing "that the welfare of the children, due to special or extraordinary circumstances, renders it in their best interests that their custody be granted to a third person." Flathers, 948 S.W.2d at 469 ; see also, In re K.K.M., 647 S.W.2d at 890 ("This court holds that the presumption which favors vesting of custody in the natural parent must fall whenever the best interests of the child, for some special or extraordinary reason or cir

2009Under both the common law and § 452.375.5, the parental presumption can be rebutted even though the parent or parents are found to be fit and competent, upon a showing “that the welfare of the children, due to special or extraordinary circumstances, renders it in their best interests that their custody be granted to a third person.” Flathers, 948 S.W.2d at 469 ; see also, In re K.K.M., 647 S.W.2d at 890 (“This court holds that the presumption which favors vesting of custody in the natural parent must fall whenever the best interests of the child, for some special or extraordinary reason or cir

1998In Hartman by Hartman v. Hartman, 821 S.W.2d 852 (Mo. banc 1991), the Supreme Court of Missouri abrogated the parental immunity doctrine which had been judicially created in Baker v. Baker, 864 Mo. 453 , 263 S.W.2d 29 (1953).

1996In Hartman by Hartman v. Hartman, 821 S.W.2d 852, 858 (Mo. banc 1991), the Missouri Supreme Court abrogated the doctrine of parental immunity.

1994In Kendall v. Sears, Roebuck and Co., 634 S.W.2d 176, 178 (Mo. banc 1982), the Court clearly articulated that the parental immunity doctrine should be applied on a case-by-case basis.

1991Finally, in Kendall v. Sears, Roebuck, and Co., 634 S.W.2d 176 (Mo. banc 1982), the Court held that the application of the parental immunity doctrine should be made on a case by case basis.

1994As noted earlier in this opinion, prior to Hartman , the doctrine of parental immunity was not an absolute rule, but was to be applied only “when the court concludes that to hold otherwise would seriously disturb the family relations and thus be contrary to public policy.” Brennecke, 336 S.W.2d at 70 .

1980In Brennecke v. Kilpatrick, *650 336 S.W.2d 68 (Mo. banc 1960), a decision holding that the parental immunity doctrine was not a bar to a minor’s claim in tort against the estate of her deceased parent (because there was no longer in existence a family relationship), it was said, at page 73[3], “In the case before us we rule that a cause of action existed when the alleged negligently inflicted injury occurred * * *.” [Italics added.] In Brown v. Parker, 375 S.W.2d 594, 604 [15, 16] (Mo.App.1964), it was held that the procedural disability [parental immunity] was not removed by the fact that at

2009Under both the common law and § 452.375.5, the parental presumption can be rebutted even though the parent or parents are found to be fit and competent, upon a showing "that the welfare of the children, due to special or extraordinary circumstances, renders it in their best interests that their custody be granted to a third person." Flathers, 948 S.W.2d at 469 ; see also, In re K.K.M., 647 S.W.2d at 890 ("This court holds that the presumption which favors vesting of custody in the natural parent must fall whenever the best interests of the child, for some special or extraordinary reason or cir

2009Under both the common law and § 452.375.5, the parental presumption can be rebutted even though the parent or parents are found to be fit and competent, upon a showing “that the welfare of the children, due to special or extraordinary circumstances, renders it in their best interests that their custody be granted to a third person.” Flathers, 948 S.W.2d at 469 ; see also, In re K.K.M., 647 S.W.2d at 890 (“This court holds that the presumption which favors vesting of custody in the natural parent must fall whenever the best interests of the child, for some special or extraordinary reason or cir

1996Teeter, 891 S.W.2d at 820 n. 5; Church v. Moon Freight Lines, Inc., 791 F.Supp. 792, 793 (E.D.Mo.1992). *936 Hartman does not require a litigant to specifically allege that he is challenging the parental immunity doctrine in order to timely raise the issue.

1994Our conclusion is further supported by Church v. Moon Freight Lines, Inc., 791 F.Supp. 792, 793 (E.D.Mo.1992), in which the court, applying Missouri law, held that the defendants/third-party plaintiffs “challenged” the doctrine of parental immunity in the sense contemplated in Hartman “by attempting to file a third-party petition for contribution against the minor child plaintiffs mother.” We must now determine whether the petition for damages in this case meets these criteria.

1998In Hartman by Hartman v. Hartman, 821 S.W.2d 852 (Mo. banc 1991), the Supreme Court of Missouri abrogated the parental immunity doctrine which had been judicially created in Baker v. Baker, 864 Mo. 453 , 263 S.W.2d 29 (1953).

1994The parental immunity doctrine was adopted by the Missouri Supreme Court in Baker v. Baker, 364 Mo. 453 , 263 S.W.2d 29 (1953). 1 The Supreme Court held in Baker that in the interest of preserving family harmony, a fifteen-month-old child could not sue her father for mere negligence arising from an auto accident.

1996In Fugate v. Fugate, 582 S.W.2d 663 (Mo. banc 1979), the Missouri Supreme Court held that the doctrine of parental immunity was applicable to wrongful death statute.

1994Implementing the same logic, the Court further eroded the parental immunity doctrine with its decision in Fugate v. Fugate, 582 S.W.2d 663 (Mo. banc 1979), holding that a non-custodial parent was excluded from immunity because, in a post-dissolution setting, the family harmony had already been destroyed.

2021When acknowledging the significance of bonding between the third-party and the minor child, the court must also recognize that public policy discourages depriving a parent of the parental presumption, where the third-party seeking custody behaved deceptively or acted with “unclean hands.” Jones, 10 S.W.3d at 539 .

2017Jones , 10 S.W.3d at 535-36 (best interest determination only reached if the parental presumption is rebutted under the fitness or welfare basis).

2021In particular, there must be proof of a “special or extraordinary circumstance” making it in the child’s best interest to award custody to a third-party.” K.M.M., 539 S.W.3d at 736 .

2018"To successfully rebut the parental presumption on the 'welfare' basis, there must be proof of a special or extraordinary circumstance rendering it in the child's best interest to award custody to a third party." K.M.M. , 539 S.W.3d at 736 (citations omitted).

2017Flathers , 948 S.W.2d at 470 ; In the Interest of Hill , 937 S.W.2d at 386 ; Jones , 10 S.W.3d at 538 ; In the Interest of K.K.M. , 647 S.W.2d at 890 ; In the Matter of Adoption of E.N.C. , 458 S.W.3d 387 , 400 (Mo. App. E.D. 2014). " '[A] significant bonding familial custody relationship with third parties can constitute a special or extraordinary reason or circumstance rendering it in a child's best interest to award third-party custody' under [Section] 452.375.5(5)(a)'s 'welfare of the child' prong." McGaw , 468 S.W.3d at 443 , quoting Flathers , 948 S.W.2d at 470 .

1997In Interest of C.L.M., 625 S.W.2d 613, 617 (Mo. banc 1981); In Interest of Hill, 937 S.W.2d 384, 386 (Mo.App.1997); C.M.W. v. C.W., 786 S.W.2d 623, 625 (Mo.App.1990); In Interest of Feemster, 751 S.W.2d 772 , 773 (Mo.App.1988); In Interest of K.K.M., 647 S.W.2d 886, 889 (Mo.App.1983). 2 Thus, as appellants admit, there is a parental presumption.

1999Flathers v. Flathers, 948 S.W.2d 463, 466-67 (Mo.App.1997) (citing In re Marriage of Carter, 794 S.W.2d 321, 327 (Mo.App.1990)).

1997The Southern District reversed, holding that the trial court had erred in awarding custody to the father based on the parental presumption because the presumption “had disappeared.” Id. at 327 .

1972Mary’s, Mo., 446 S.W.2d 599 ]; (2) abolish the parental immunity rule generally but delineate certain areas where immunity should remain [e. g., Goller v. White, 20 Wis.2d 402 , 122 N.W.2d 193 ]; (3) abolish the parental immunity rule generally but apply to a parent’s conduct a standard “of reasonableness, but viewed in light of the parental role” [e. g., Gibson v. Gibson, 3 Cal.3d 914 , 92 Cal.Rptr. 288 , 479 P.2d 648, 653 ]; or (4) retain our Brennecke position and, on the basis of the particular facts and circumstances in each case, adhere to the Hewellette rule “only when the court conclud

1972Mary’s, Mo., 446 S.W.2d 599 ]; (2) abolish the parental immunity rule generally but delineate certain areas where immunity should remain [e. g., Goller v. White, 20 Wis.2d 402 , 122 N.W.2d 193 ]; (3) abolish the parental immunity rule generally but apply to a parent’s conduct a standard “of reasonableness, but viewed in light of the parental role” [e. g., Gibson v. Gibson, 3 Cal.3d 914 , 92 Cal.Rptr. 288 , 479 P.2d 648, 653 ]; or (4) retain our Brennecke position and, on the basis of the particular facts and circumstances in each case, adhere to the Hewellette rule “only when the court conclud

2025Id. at 397-98 (cleaned up).

2001Historically, the "parental presumption” in habeas corpus was stated in this fashion: "[I]t is the duty of the court to award the person of the infant to the custody of the [natural parent], unless it is made manifest to the court that the [parent], for some reason, is unfit or incompetent to take charge of it; or unless the welfare of the child itself, for some special or extraordinary reason, demands a different disposition of it, at the hands of the court.” In re Scarritt, 76 Mo. 565, 582 (Mo. 1882).

1999Thus, to the extent that the Southern District of this court has previously held in R.J.A. v. G.M.A., 969 S.W.2d 241, 245 (Mo.App.

1997In Interest of C.L.M., 625 S.W.2d 613, 617 (Mo. banc 1981); In Interest of Hill, 937 S.W.2d 384, 386 (Mo.App.1997); C.M.W. v. C.W., 786 S.W.2d 623, 625 (Mo.App.1990); In Interest of Feemster, 751 S.W.2d 772 , 773 (Mo.App.1988); In Interest of K.K.M., 647 S.W.2d 886, 889 (Mo.App.1983). 2 Thus, as appellants admit, there is a parental presumption.

1997In Interest of C.L.M., 625 S.W.2d 613, 617 (Mo. banc 1981); In Interest of Hill, 937 S.W.2d 384, 386 (Mo.App.1997); C.M.W. v. C.W., 786 S.W.2d 623, 625 (Mo.App.1990); In Interest of Feemster, 751 S.W.2d 772 , 773 (Mo.App.1988); In Interest of K.K.M., 647 S.W.2d 886, 889 (Mo.App.1983). 2 Thus, as appellants admit, there is a parental presumption.

1997Hill, 937 S.W.2d at 388 ; In re B.W.D., 725 S.W.2d 138, 139 (Mo.App.1987); C.M.W., 786 S.W.2d at 625 ; Feemster, 751 S.W.2d at 773; K.K.M., 647 S.W.2d at 889 .

1997In Interest of C.L.M., 625 S.W.2d 613, 617 (Mo. banc 1981); In Interest of Hill, 937 S.W.2d 384, 386 (Mo.App.1997); C.M.W. v. C.W., 786 S.W.2d 623, 625 (Mo.App.1990); In Interest of Feemster, 751 S.W.2d 772 , 773 (Mo.App.1988); In Interest of K.K.M., 647 S.W.2d 886, 889 (Mo.App.1983). 2 Thus, as appellants admit, there is a parental presumption.

1997In Interest of C.L.M., 625 S.W.2d 613, 617 (Mo. banc 1981); In Interest of Hill, 937 S.W.2d 384, 386 (Mo.App.1997); C.M.W. v. C.W., 786 S.W.2d 623, 625 (Mo.App.1990); In Interest of Feemster, 751 S.W.2d 772 , 773 (Mo.App.1988); In Interest of K.K.M., 647 S.W.2d 886, 889 (Mo.App.1983). 2 Thus, as appellants admit, there is a parental presumption.

1997Guier v. Guier, 918 S.W.2d 940, 946 (Mo.App.1996).