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Man
Wasn't Father But Is Awarded Visitation
Biological
Dad Was In Prison For Homicide
From - Missouri Lawyers Weekly
By: Kelly Kress
February 17, 2003
Even though a man was not a minor girl's natural father - and even though
her mother was not found to be unfit - he could get visitation after his
divorce from the mother, St. Louis County Circuit Court judge has ruled.
This was because the mother had led the girl to believe he was the father
before identifying the biological dad - a prisoner serving time for
homicide.
"It is clear to the court that under the unique facts of this case the
welfare of the child requires that Husband be awarded third party custody
rights," Judge John R. Essner wrote. "The person would be hurt most
severely by cutting off any relationship between [the girl] and Husband is [the
girl]. It's just not fair to [the girl] to have to suffer this additional
grief."
The case is Gain v. Gain, MLW No. 32646, issued on Feb. 4.
'Courageous'
"It's a fascinating case," said Sheldon Bernstein of Kansas City.
"It's
very, very different from most opinions I've seen. The judge took a very
courageous position to protect the child.
"Under a strict construction of the law, [the husband] would be out [of the
child's life], the mother would have custody, and she would determine the
child's relationship with the biological father," Bernstein said.
"Unfortunately, the court would be well within its rights to reach that
conclusion, and an appeals court would not overturn it. The judge really reached
to do what he could to protect the kid.
"It was the right thing to do, but I don't agree with the judge's
reasoning.
Section 452 applies to third party custody when both parents are unfit," he
said.
Margo Green of St. Louis said, "This is the first case like this I've seen
in over 20 years of practice.
"This is a case of a judge writing an opinion to reach the right
result,"
she said. "The whole purpose of establishing the family courts was to put
judges on the bench who have an aptitude for creative solutions.
"We've been applying the same factors used in dissolutions to paternity
cases since 1988. It's time for the legislature to look at the paternity
statutes and bring them into line with the dissolution statutes. I question
whether [the judge] would have had jurisdiction under the Uniform Parentage
Act if there was no dissolution involved."
Bradley Bakula, St. Louis attorney for Steven Gain, said, "Leigh Joy Carson was the guardian ad litem appointed for the children. She deserves
the credit for pushing [the visitation issue]. She really pushed it for the
benefit of the daughter, so it was left to me to take it to trial on behalf
of dad. We didn't have a lot of law to guide us."
Leigh Joy Carson said, "For nine years this was her dad. He nursed her when
she was sick, taught her to ride a bike, helped her with her homework.
"Usually cases like this are portrayed as a punishment of the mother, but
they're not. Its supposed to be about the kid," Carson said. "There
seems to
be a trend to protect the rights of the parents, to the detriment of the
rights of the children. This [decision] was absolutely the right thing to
do."
The Family
Steven and Terry Gain were married in 1979. Together they had four children.
A fifth child was born during the marriage, but all parties agreed that the
child's father was Charles McCausland. The child believed that Steven Gain
was her father until she was 9, when she was told about McCausland, who is
currently serving a prison sentence for homicide. The child met McCausland
for the first time during a prison visit in May 2002.
Terry filed for divorce in 2002. Since the child was born during the
marriage, a petition to officially declare paternity was necessary. Terry
Gain filed a third party cross petition under the Uniform Parentage Act. Third party respondent McCausland, the natural father, filed an entry of
appearance acknowledging paternity. Terry Gain and McCausland filed an
agreement with the court requesting that sole legal and physical custody of the child be granted to her mother and that
the child be allowed to continue
to visit McCausland at the prison, and he would pay no child support.
Steven Gain sought temporary custody rights for both the child and the
couple's 5-year-old daughter. His request was supported by the GAL, who
filed a counter petition for equitable parentage.
Judge Essner did not believe it was necessary to determine whether the law
would allow Gain to be declared the "equitable parent."
"The decision of the Missouri Supreme Court in Cotton v. Wise cast some
doubt about the theory of equitable parentage in Missouri. The court, however,
has an independent duty to protect the best interests of the child," Essner
said. "Therefore, this court believes that custody rights might be awarded
to Husband under the provisions of Sect. 452.375-5(3)(a)
which allows for an award of third party custody when each party is unfit
'or the welfare of the child requires.'
"This basis for an award of third party custody if the welfare of the child
requires is independent of any determination of whether the parents are
unfit, unsuitable or unable to serve as custodians," he said.
UPA
Essner said that Steven Gain's custody rights were technically being
established by the paternity action Terry Gain had filed against McCausland.
The court found that Gain was a party to the proceeding since it was
included in the dissolution and concerned a child born during the marriage.
"Though the Uniform Parentage Act does not contain language referencing
third party custody, many of the provisions of Sect. 452 concerning the
custody and visitation are commonly applied by courts in paternity
proceedings," Essner said.
"It is clear to the court that under the unique facts of this case the
welfare of the child requires that Husband be awarded third party custody
rights. Though Wife's interests as a natural parent may be affected, Wife
allowed a father-daughter relationship to develop by failing to inform [the
child] until she was nine years old that Husband was not her father.
"McCausland's interests as a natural parent may also be affected but only
minimally because he will be in prison for many years to come," he said.
"The person who would be hurt most severely by cutting off any relationship
between [the child] and Husband is the child. It's just not fair to [the
child] to have to suffer this additional grief considering the tumultuous
family life that she has experienced throughout her life.
"Unfortunately, the court is confident that unless Husband's custody rights
as to [the child] are expressly defined, Wife will not allow [the child] to
have meaningful contact with him in light of Wife's dislike and suspicion of
Husband."
Custody
Terry Gain requested primary physical custody, and asked that Steven Gain
have limited visitation and no overnight stays, based upon her allegations
of sexual abuse. Her plan referred only to their 5-year-old daughter, but the
court applied it to the other child as well.
Both Steven Gain and the GAL agreed that the girls should live with their
mother, but asked that Steven be given significant visitation rights.
"The children are not adjusting well to the current situation wherein
Husband is only allowed contact with the children for very limited periods
of time and only in wife's presence in her residence," reported Dr. Ricardo
Moreno, the court-appointed psychologist. "Both children want more time
with
Mr. Gain."
Essner applied the factors listed in §452 to the facts of the case, and
determined that the custody plan proposed by the GAL would best serve the
interests of the children.
"Wife has alleged that Husband has sexually abused [the child] and that
[their other daughter] will also be at risk if she is left in the overnight
custody of Husband. If the court found these allegations to be true, then
that history would, of course, have a significant impact on the
determination of the best custody plan. However, Wife offered no support for
her allegations against Husband other than her own testimony as to her
suspicions. Neither the GAL nor Dr. Moreno believed that the abuse as
described by Wife had occurred. The court finds that by the credible
evidence Husband is not guilty of abuse."
Terry Gain was awarded sole legal custody and primary physical custody of
the girls. Steven Gain was awarded unsupervised visitation one evening per
week, every other weekend, and six weeks in the summer. Prison visits with
the natural father were ordered to be continued.
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