Section 452.375.5(5) Does Not Create an Independent Third-Party Visitation/Custody Cause of Action Absent a Pending Custody Dispute

1. Introduction

This en banc decision addresses whether Missouri’s third-party custody/visitation provision—section 452.375.5(5)(a)—authorizes a standalone lawsuit for third-party custody or visitation when no custody case is otherwise pending.

The dispute arose after Alicia Smith and Lora Martinez, former partners who had served as joint guardians of twin girls, pursued competing adoptions. The circuit court granted Martinez’s adoption petition, the guardianship terminated, and the court of appeals affirmed the adoption judgment in S.H.P. v. N.B.. While Smith’s adoption appeal was pending, Smith filed a petition under section 452.375.5(5) seeking third-party custody (or, alternatively, visitation). The circuit court ultimately entered a judgment granting Smith visitation based on a purported settlement “separation agreement,” and later enforced that visitation through a family access order under section 452.400.

The core issue before the Supreme Court of Missouri was not merely whether Smith had “standing,” but whether section 452.375.5(5) supplies an independent cause of action allowing a third party to sue for custody/visitation in the absence of an existing custody proceeding.

2. Summary of the Opinion

The Court reversed the third-party visitation judgment and the related family access enforcement order. It held that section 452.375.5(5)(a) does not create an independent cause of action for third-party custody or visitation when custody is not already at issue in an underlying proceeding. Rather, the statute operates procedurally—by requiring the court to make a third party “a party to the action” and by allowing a person to “petition the court to intervene”—which presupposes an existing custody action (e.g., divorce, separation, or paternity custody proceedings).

Because Smith’s third-party visitation claim was not tethered to a pending custody dispute, it failed as a matter of law, and her section 452.400 family access motion necessarily failed as well. The Court entered judgment dismissing Smith’s section 452.375.5(5)(a) action and overruling the family access motion pursuant to Rule 84.14.

3. Analysis

3.1 Precedents Cited

The Court’s reasoning is built from two strands of authority: (i) the distinction between “standing” and “cause of action,” and (ii) prior Missouri custody/third-party decisions emphasizing that section 452.375.5 operates within an existing custody framework.

A. Standing versus cause of action (and how courts evaluate statutory causes)

• Manzara v. State, 343 S.W.3d 656 (Mo. banc 2011): Cited for the standard of review—standing is reviewed de novo. The Court used this citation to frame the appellate posture but then pivoted to the more fundamental question: whether a cause of action exists at all.
• E. Mo. Laborers Dist. Council v. St. Louis Cnty., 781 S.W.2d 43 (Mo. banc 1989): Used to define standing (a legally cognizable interest plus threatened or actual injury). The Court emphasized that standing is distinct from whether the law recognizes the claim asserted.
• Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462 (Mo. banc 2001): Cited for the “academic” petition review when the existence of a cause of action is disputed: courts ask whether the pleaded facts fit a recognized claim (or one that might be adopted).
• Johnson v. Kraft Gen. Foods, Inc., 885 S.W.2d 334 (Mo. banc 1994): Provides the interpretive rule for inferring private causes of action: courts look first for express statutory creation (or prohibition); absent express language, a cause of action may exist only if clearly implied by legislative intent. The Court relied heavily on Johnson to reject speculative implication and to refuse “adding” language.
• Peters v. Wady Indus., Inc., 489 S.W.3d 784 (Mo. banc 2016): Reinforces that courts may not add statutory language that does not exist, supporting the Court’s textual reading of section 452.375.5(5).

B. Section 452.375.5(5) as non-independent and custody-dependent

• Bowers v. Bowers, 543 S.W.3d 608 (Mo. banc 2018): Cited for de novo review of third-party designation under section 452.375.5(5). It situates the Court’s role as independently determining whether the statutory framework applies.
• Hanson v. Carroll, 527 S.W.3d 849 (Mo. banc 2017): The opinion’s key Missouri precedent. In Hanson, grandparents sought third-party visitation/custody after a guardianship was in place. This Court held section 452.375.5(5)(a) was inapplicable because custody was not at issue. The present Court analogized: after Martinez’s adoption, custody was not “at issue” in a way that triggers section 452.375.5(5).
• T.Q.L. v. L.L., 386 S.W.3d 135 (Mo. banc 2012): The court of appeals relied on T.Q.L. for the proposition that section 452.375.5(5)(a) can support third-party standing. The Supreme Court cabined T.Q.L., explaining it arose in the procedural posture of a motion to dismiss within a paternity/custody case, and “never should have been read” to suggest the statute creates an independent cause of action. This is a major clarifying move: the Court limits T.Q.L. to its context and rejects its broader use as a standalone authorization.

C. Adoption and “custody determination” tension in lower-court case law

• S.H.P. v. N.B., 638 S.W.3d 524 (Mo. App. 2021): Provides the adoption appellate background and included dicta suggesting a person may seek third-party custody/visitation after adoption. The Supreme Court effectively rejects that implication to the extent it presumes an independent section 452.375.5(5) action exists.
• Adoption of C.T.P. v. A.M., 452 S.W.3d 705 (Mo. App. 2014): Recognized the notion that “a custody determination is not in issue in an adoption proceeding,” and had endorsed post-adoption third-party determinations. The Supreme Court does not expressly overrule it (it cannot as a court of last resort over an intermediate court’s opinion in name), but it calls the approach “absurd and illogical” as a matter of statutory function and adoption’s legal effect, signaling that such reasoning should not be followed going forward.

D. Constitutional backdrop: parental rights and overly broad visitation regimes

• Troxel v. Granville, 530 U.S. 57 (2000): Cited in a footnote to underscore the constitutional sensitivity surrounding third-party visitation statutes. The Court notes the “breathtakingly broad” Washington statute struck (as applied) in Troxel and suggests that interpreting section 452.375.5(5) as allowing “any person” to file a free-standing visitation petition would raise similar concerns by subjecting parental decisions to constant judicial review.

3.2 Legal Reasoning

A. The Court reframes the dispute: from “standing” to “cause of action”

A central contribution of this opinion is methodological: it insists that litigants and courts must not conflate whether a particular petitioner has standing with whether the statute authorizes the lawsuit at all. Even a person with a sincere interest and claimed injury cannot proceed if the law supplies no cause of action.

B. Textual anchor: “make that person a party to the action” and “intervene” require an existing action

The Court’s statutory analysis is text-first and structure-aware. Section 452.375.5 is framed as a list of custody arrangements the court must consider “[p]rior to awarding” custody in the child’s best interest. Within that list, paragraph (5) concerns “Third-party custody or visitation,” but it does so through procedural mechanisms:

• Section 452.375.5(5)(a) requires that before awarding third-party custody/visitation, “the court shall make that person a party to the action”—language that presupposes an already-pending case in which custody is being determined.
• Section 452.375.5(5)(b) allows “any person” to “petition the court to intervene,” which the Court ties directly to Rule 52.12. Intervention is, by definition, entry into an existing action; it is not the commencement of a new cause.

On this reading, section 452.375.5(5) functions as an adjunct to a custody adjudication already required in another proceeding (divorce, separation, paternity), not as a free-standing third-party visitation statute.

C. Consistency with Missouri’s custody framework

The Court situates section 452.375.5(5) in its proper ecosystem: chapter 452 custody determinations typically arise through other underlying actions (referencing section 452.300, RSMo 2016; section 210.853, RSMo 2016; and the parenting-plan statutes). In that ecosystem, third-party custody/visitation is an “alternative consideration” when the court is already required to make a custody award and the parents are unfit/unable or the child’s welfare requires it.

D. The post-adoption context: adoption’s legal effect forecloses “custody at issue”

The Court treats adoption as creating a complete parent-child relationship: after adoption, the child is “for every purpose” the child of the adoptive parent (section 453.090.1, RSMo 2016). From that premise, it reasons:

• The adoption terminated Smith’s prior guardianship-based custodial rights and “severed any rights” she may have had.
• Allowing a losing adoption petitioner to bring a free-standing third-party custody/visitation claim would “undercut the legal effect of an adoption,” requiring adoptive parents to relitigate core parental incidents (including custody/visitation control) immediately after finalization.

E. Doctrinal cleanup: limiting T.Q.L. v. L.L. and disapproving contrary case law

The Court expressly states that “to the extent other cases have created or recognized an independent cause of action, they should no longer be followed.” It then clarifies that T.Q.L. v. L.L. should not be read to endorse an independent action because it arose inside a paternity/custody case and concerned pleading sufficiency—i.e., it assumed an underlying custody action existed.

F. Disposition and jurisdiction

Having concluded there is no independent cause of action, the Court does not reach Martinez’s arguments about withdrawal of consent. It also rejects the notion that the appeal should be dismissed for lack of appellate jurisdiction, reasoning that Martinez was “aggrieved” by a judgment entered without statutory authority. The Court reverses both judgments and enters judgment dismissing the third-party visitation action and overruling the family access motion under Rule 84.14.

3.3 Impact

A. Practical litigation consequences

• No “standalone” third-party visitation/custody suits under section 452.375.5(5): Third parties cannot initiate a new case simply by invoking section 452.375.5(5)(a). They must proceed through a pending proceeding in which custody is already at issue and use joinder (by the court) or intervention (Rule 52.12).
• Post-adoption claims are sharply curtailed: Once adoption vests parental rights, section 452.375.5(5) cannot be used as a vehicle to reopen custody/visitation absent an independent, valid custody proceeding placing custody “at issue.”
• Downstream enforcement orders fall with the underlying judgment: The opinion makes explicit that a section 452.400 family access motion cannot stand if the underlying visitation judgment is unauthorized.

B. Doctrinal consequences for Missouri courts

• Reorientation from “standing” to “statutory authorization”: Trial and appellate courts are directed to ask first whether section 452.375.5(5) applies procedurally (i.e., within an existing custody action), rather than treating it as a free-standing grant of standing.
• Reduced risk of constitutionally overbroad applications: By confining third-party claims to existing custody proceedings, the decision avoids an interpretation resembling the “breathtakingly broad” statute criticized in Troxel v. Granville, thereby strengthening parental autonomy against open-ended third-party petitions.
• Signals to lower courts regarding contrary authority: The Court’s statement that cases recognizing an independent cause “should no longer be followed” is a clear directive that prior postures endorsing standalone section 452.375.5(5) actions (including interpretations drawn from dicta) are no longer reliable.

4. Complex Concepts Simplified

Standing vs. Cause of Action

Standing asks: “Is this the right person to complain in court—do they have a legally recognized interest and injury?” Cause of action asks: “Does the law recognize the kind of claim they are trying to bring at all?” This case turns on the second question: even if Smith felt harmed, section 452.375.5(5) did not authorize her to file a new lawsuit.

Intervention (Rule 52.12)

“Intervention” is not starting a new case. It is joining an existing case because the outcome may affect your rights or interests. When section 452.375.5(5)(b) says a person may “petition … to intervene,” it necessarily presumes a custody case is already pending.

Why adoption matters here

An adoption judgment does more than choose a caretaker; it establishes a full legal parent-child relationship “for every purpose” (section 453.090.1, RSMo 2016). The Court reasoned that allowing immediate third-party custody/visitation lawsuits after adoption would dilute the finality and substance of that relationship.

Family access motions (section 452.400)

A family access motion is an enforcement tool—it presumes a valid custody/visitation order exists. If the underlying order is legally unauthorized (as here), the enforcement order cannot stand.

5. Conclusion

In re A.L.P. and S.H.P. establishes a clear and restrictive rule: section 452.375.5(5)(a) is not a standalone third-party custody/visitation cause of action. It applies only within an existing proceeding where custody is already before the court, and third parties participate by being made parties or by intervening.

The decision also strengthens adoption finality and aligns Missouri practice with constitutional caution signaled by Troxel v. Granville, avoiding an interpretation that would invite broad, repeated judicial second-guessing of parental decisions. The immediate effect is the dismissal of Smith’s visitation case and the reversal of enforcement orders premised on it; the broader effect is a significant narrowing of how third-party visitation/custody claims may be initiated and litigated in Missouri.