The child's mother or father may represent him as his next friend. In Lechner v. Whitesell, 811 S.W.2d 859 (Mo.App. 1991), a putative father brought an action seeking a declaration that he was the father of the child and seeking the right of temporary custody and visitation. The trial court granted custody to the mother and the father was awarded limited and supervised visitation.
Merely alleging in a petition that a parent is the child's next friend does not create a legally valid next-friend relationship. R.W.B. v. T.W., 947 S.W.2d 815, 817[2] (Mo.App. 1997); Lechner v. Whitsell ByWhitsell, 811 S.W.2d 859, 861[3] (Mo.App. 1991). The language of section 210.830 and case law interpreting that provision mandate that a child who is the subject of a paternity action under the UPA must be made a party to the case.
The trial court's docket sheet is not in the record on appeal, hence this court does not know what that document might have revealed. In Lechner v. Whitesell by Whitesell, 811 S.W.2d 859 (Mo.App.S.D. 1991), a man sued a child and the child's mother seeking a declaration under the Uniform Parentage Act that he was the child's father. Id. at 860.
Certainly the mere allegation that the mother is the child's next friend does not make the mother the appropriate representative of the child in a paternity action. Lechner v. Whitesell by Whitesell, 811 S.W.2d 859 (Mo.Ct.App. 1991). The Appellate Court of Illinois recently determined that a mother who did not have custody was not a "general guardian" with standing to challenge her former husband's paternity under the Illinois Parentage Act.
Under Fed. R. Civ. P. 17(c), a minor may sue or defend by a next friend or by a guardian ad litem (GAL). Under Missouri law, appointment of a GAL is appropriate where the minor children have interests that may conflict with the parent/next friend. See Lechner v. Whitesell by Whitesell, 811 S.W.2d 859 (Mo. Ct. App. 1991). See also Y.W. By & Through Smith v. Nat'l Super Markets, Inc., 876 S.W.2d 785, 788 (Mo. Ct. App. 1994) (parent may be disqualified from representing child because of conflict of interest). "Appointing a guardian ad litem is for the benefit of the child, not the parties."
Citing several cases, including J.L. ex rel. G.L. v. CD., 9 S.W.3d 733 (Mo.App. S.D. 2000), Mother argues that Missouri courts require compliance with section 210.830 and Rule 52.02(a), and non-compliance requires reversal. See also R.W.B. v. T.W., 947 S.W.2d 815, 817-18 (Mo.App. S.D. 1997); S.J.V. v. Voshage, 860 S.W.2d 802, 804-05 (Mo.App. E.D. 1993); and Lechner v. Whitesell, 811 S.W.2d 859, 861-62 (Mo.App. S.D. 1991). In J.L., the father brought an action against the mother to establish paternity over J.L., 9 S.W.3d at 734.
In re Marriage of Myers, 845 S.W.2d 621, 626[9] (Mo.App.S.D. 1992). The appointment of a guardian ad litem under such circumstances is mandatory, and the proceeding cannot continue until the guardian is appointed. Lechner v. Whitesell by Whitesell, 811 S.W.2d 859, 861[4] (Mo.App. 1991). A trial court's failure to appoint a guardian ad litem in such a situation is reversible error if it is properly raised or it justifies sua sponte relief. S.____ v. S.____, 595 S.W.2d 357, 361[3] (Mo.App. 1980).
S.J.V. v. Voshage, 860 S.W.2d 802 (Mo.App. 1993). See also Lechner v. Whitesell, 811 S.W.2d 859 (Mo.App. 1991). The petition was filed on June 6, 1988.
The next friend normally prosecutes actions and a guardian ad litem defends actions. Nevertheless, they are both officers of the court and their rights and duties are basically the same." Lechner v. Whitesell, 811 S.W.2d 859, 861 (Mo.App. 1991). Cf. Mo. Rev. Stat. § 507.110 (2000) (describing appointment of next friend to prosecute or guardian ad litem to defend action on behalf of minor).
[¶ 23.] Other jurisdictions have held that even if the facts of the case appear to point to terminating the presumed father's rights and vesting parental rights in the biological father, courts should err on the side of caution and receive input from the child's guardian ad litem before making a determination. See M.R.D. v. F.M., 805 P.2d 1200, 1203 (Colo Ct App. 1991); Lechner v. Whitesell, 811 S.W.2d 859, 861 (MoCtApp 1991) (requiring appointment of guardian ad litem to represent child in paternity action because child's interests may conflict with mother's). [¶ 24.] Between two men not wishing to pay support, someone needs to look out for the interests of the child.