Letters of Guardianship of the person of a minor may generally be granted (1) where a minor has no parent living, (2) where the parents or the sole surviving parent of a minor are unwilling, unable or adjudged unfit to assume the duties of guardianship, (3) or where the parents or the sole surviving parent have had their parental rights terminated. See Mo. Rev. Stat. § 475.030.4. Under sub-section (2), “[a] natural parent has the benefit of a rebuttable presumption that he is the appropriate custodian, but the presumption may be overcome by evidence that a parent is unfit, unable or unwilling to take charge of the child.” Cotton v. Wise, 977 S.W.2d 263, 264 (Mo. 1998). A grant of guardianship under sub-section (2) must be premised on a finding of unfitness, inability, or unwillingness. In the Interest of C.L. v. M.T., 335 S.W.3d 19, 26 (Mo. Ct. App. 2011).
There is a judicial exception to this presumption. “The presumption […] must fall whenever the best interests of the child, for some special or extraordinary reason or circumstance, mandate that custody be vested in third persons, regardless of whether the evidence establishes the unfitness […] of the natural parent.” [emphasis added] Id. at 26-27 (citing In the Interest of K.K.M., 647 S.W.2d 886, 890 (Mo. Ct. App. 1983); see also In the Matter of Scarritt, 76 Mo. 565, 582 (1882) (“it is the duty of the court to award the person of the infant to the custody of the father […] 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” [emphasis added]; see Mo. Rev. Stat. § 1.092 ( “The child welfare policy of this state is what is in the best interests of the child”) [emphasis added].
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