Missouri Divorce and Family Law Blog : Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

In cases involving children, the Court must, either by agreement or by trial, set up some sort of custodial arrangement for the kids involved. There are many options available, all of which fit under a just a few legally recognized categories. There are as many if not more “definitions” of custody floating around out there that don’t actually mean anything legally. People usually have at least some idea of what it is that they are seeking in their minds, but they have trouble defining it. So here we go with a little Child Custody 101 to assist those with their initial case preparation:

Legal Custody. This is one of the two types of custody that must be determined by a Missouri Court in all cases. The legal aspect of custody means decision making and parental authority, basically. It means having the legal right to make (and participate in) any material decisions affecting the children.  Included are the choice or change of school, college, camp, or comparable summer activity, special tutoring, music, sports, art, dance, and other cultural lessons, psychological or psychiatric treatment or counseling, doctors, and surgeons; notice of illness and injury; access to school and medical records; and all other material decisions affecting the health, education, and welfare of the children. Specifically, decisions regarding educational instruction, religious instruction, health care, discipline, and child care providers are included in the model parenting plan, but anything relevant to the children could be included in the definition. Legal custody can be granted to one or both parents, but the overwhelming preference is for joint legal custody. 

Physical Custody. This is the second aspect of custody that must also be determined. Physical custody simply means the right to have actual physical possession of the children at a certain specified time. The preference is for joint physical custody, which only means that both parents have the right to physical possession of the children at certain times. The actual schedule can vary greatly, however, and this is where tailoring to the specific needs of the family is important. Joint physical custody could be an alternate weekend schedule, alternate weeks, holidays and spring break only, summertime only, 3 day/4 day, 5 day/2 day, 50/50, open ended, or whatever other schedule is appropriate for the case. Just as a note, in a 50/50 joint physical parenting schedule, reduced child support is still usually paid in some form or another.

Joint Custody. As discussed above, this is the preferred arrangement and will usually be awarded unless a physical or emotional danger to the child is demonstrated. The Court has to determine whether joint custody is appropriate as to both the legal and physical aspects of custody.

Sole Custody. This is the alternative to joint custody where only one parent is granted either all of the decision making rights (sole legal custody) or all of the physical parenting time with the other parent  being excluded completely (sole physical custody), or both. Courts are reluctant to order either of these options unless it is shown to be in the children’s best interests, which usually means that physical or emotional danger to the children will occur under any other alternative. Also, as many times as I have seen it, there is no such thing as sole physical custody to one parent along with a parenting schedule for the other parent. If both parents are to see the children, whatever the schedule, that is joint physical custody by definition.

Split Custody.  This is an arrangement where the children are “split up” between the two parents, meaning that some of the children reside with one parent while the other children reside with the other parent. This is not too common, but it does happen. Courts are usually reluctant to split up children except in the most unique of circumstances, but the parents can agree to such an arrangement if they feel it is best.

Full Custody. There is no definition of Full Custody in Missouri and it has no legal significance.  When referring to this, people are talking about some combination of the above types of custody.

Primary Custody. This is no longer a legal definition in Missouri.   Now it is called “residential address for education and mailing purposes.” It usually means the home where the children reside for the greater amount of time, and the home that is in the children’s school district. The parents are supposed to be equal so they are no longer referred to as the primary parent and the lesser parent.

Visitation. This is the time where you view the body before a funeral.  So, if you are talking about your kids, call it something else, like “parenting time”.

Hopefully, this helps to clarify a little bit, but when it comes down to it, it is still just a bunch of words on paper. Put the children first, focus on what is best for them and what will really work with your family, and don’t get too wrapped up in the terminology.  

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The Kansas Missouri Lawyers Blog had a great post recently discussing a recent Missouri ruling regarding the termination of maintenance (Alimony) payments when a former spouse remarries.  The complete article is as follows:

The Missouri Court of Appeals recently held that absent an express agreement otherwise maintenance (alimony) payments terminate upon the recipient’s remarriage. The Court went on to hold that the use of the word “only” was insufficient to show this express agreement. See the opinion here.

In this case, husband and wife divorced in October of 2003. The judgment included a provision requiring the husband to pay his former wife periodic, modifiable maintenance of $500 per month. This maintenance arrangement was later amended by the parties. As part of this stipulation, the parties stated that “The maintenance obligation herein should terminate upon [the wife's] death.” The lower court’s modified judgment setting forth the stipulation stated, “Said maintenance obligation shall only terminate upon the death of [the wife] or September 30, 20011, which occurs first.” (emphasis added).

The wife remarried thereafter, and husband filed a motion to terminate his maintenance obligation. The Court noted that Section 452.370.3 provides in relevant part, “Unless otherwise agreed in writing or expressly provided in the judgment, the obligation to pay future statutory maintenance is terminated upon the death or either party or the remarriage of the party receiving maintenance.” Based on its interpretation and judicial precedent, the Court held, “[I]n order to rebut the statutory presumption that maintenance terminates upon the receiving spouse’s remarriage, a dissolution decree must expressly refer to the receiving spouse’s possible future remarriage, and must expressly provide that maintenance payments shall continue beyond that contingency.”

Thus, at least in Missouri, parties to a divorce, working with their attorneys, must carefully draft separation and maintenance agreements to capture the parties’ wishes. In particular, if the parties wish that maintenance payments will continue indefinitely or for sometime after the recipient’s remarriage, the parties must state this fact by expressly referencing remarriage and describing its consequences.

Thanks again to the Kansas Missouri Lawyer's Blog, a great legal resource for people in the Kansas City area, for this case law update.

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I can’t think of how many times that I have had a client tell me, regardless of what the issue is that is in dispute, that the opposing party is “just worried about money” or that it is “all about the money” for him or her, and that is their sole motivation in the case. Or maybe it is the other way around. My usual response is “isn’t it always?” There are so many financial aspects of divorce that have to be balanced that if parties aren’t careful, they can end up in a big money mess. Here are a few of the big ones:

1.       2 households instead of one: Before a couple or family divorces, they live in one residence with one set of bills and expenses, paid by however much money the couple/parents bring in. Upon divorce, the same level of income still exists, but now there are two mortgages/rent, two sets of utilities, two sets of grocery bills, two car payments, relocation expenses, first and last month’s rent, and so on. Basically, double or so the expenses on the same income.  It is not hard to see how difficult this is in and of itself.

2.       Debts. These days, many families are just a paycheck or two away from real trouble with credit cards and other unsecured debts, and if there are significant debts involved in the divorce, a real challenge exists. Sure the court can divide the debts and assign liability to each spouse, but it doesn’t do much good if the net marital estate is significantly reduced or eliminated by the debt. A divorce is a separation of financial livelihoods, and when possible, it is a good idea to use assets in the marital estate to reduce or eliminate debt before dividing assets. The less debt after the divorce the better for both parties, even if on paper one spouse is supposed to be responsible for it. It is a future fight or bankruptcy filing waiting to happen.

3.       Child Support: Quite simply, nobody is happy with it. If you have to pay it, it is going to be perceived to be too much, and if you are receiving it, it is perceived to not be enough.  In Missouri child support is largely a mathematical calculation based on incomes and other expenses, and to some degree it is what it is.   But regardless, it another factor affecting the same level of income pre-divorce, and it will never make a party “whole” or maintain a pre-divorce standard of living.

4.       Maintenance: Although there is no mathematical formula the same holds true as does for child support, it is probably both too much and not enough,  and it is still going to have to come out of the same pot of money.  Unless the parties are very well off financially to begin with, to expect the same standard of living pre-divorce is usually unrealistic. Although appropriate in some cases of long marriage, large disparities in income, or other factors, maintenance in Missouri is awarded in a small percentage of cases.

5.       Health Insurance: Regardless of your politics on the issue, health insurance is expensive and upon divorce usually a former spouse cannot remain on the other spouse’s health insurance. So, unless both parties can get affordable health insurance, if such a thing exists, then this can be a big financial factor that likely may only have a handful of undesirable solutions.

6.       Attorney fees and case costs: On top of all of this, the divorce is a direct expense in terms of attorney fees and costs associated with the case. If the case is contested, then the total cost on the family is the sum of both spouses total investment in the case. Attorney fees are not usually awarded, which is all the more reason to try to approach the case in an informed and rational way, and try to keep costs and conflict down. The higher the conflict, the higher the cost every single time.

There are of course, other issues particular to certain cases, but regardless of how extensive the list may be, the bottom line is that divorcing spouses need to be smart and rational about how to separate financially and view their situation in a realistic way. Otherwise,  financial disaster in one form or another, certainly awaits.

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In a recent ruling by the Missouri Court of Appeals, in a custody modification proceeding, the trial court’s modified parenting plan delegated the authority to make all medical, educational, and extracurricular decisions for one of the parents’ two children to her “team of doctors.” The Court held that these provisions of the plan are too vague and indefinite to be enforceable in that the phrase “team of doctors” is not sufficiently definite and specific. Provisions in a judgment should be definite as indefinite provisions are unenforceable. The judgment must be sufficiently certain to be susceptible of enforcement in the manner provided by law without requiring external proof.

Although not specifically held, it was noted that  452.375.5(5)(a) allows a court to grant custody to a third party when it finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child. However, to do this, the court must make that third person a party to the action.  However, parents who share joint legal custody of a child or children can agree to designate a third party as a tie-breaker to resolve individual issues upon which they cannot agree, and such an arrangement does not violate section 452.375.1(2).  In this case, the “team of doctors” were not made a party to the case, and the modified parenting plan was against the weight of the evidence in that the parents did not intend to delegate to the team of doctors their authority to make educational or extracurricular decisions for their daughter.  

The entire opinion can be read here.

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In Missouri, there are two primary ways that a non-married parent can seek to establish child support, judicial and administrative.   A judicial action is through the circuit court, and an administrative action is through the Family Support Division. The Division is an administrative agency which has the power to issue binding orders for child support, which may or may not later be filed as a judicial action in the appropriate circuit court. The agency has their own administrative process, where a case worker calculates child support on information provided by the custodial parent, and the non-custodial parent is then served, usually by mail, with the notice of an order. The non-custodial parent is given the opportunity to dispute the amount calculated by the case worker, and request a hearing within a certain number of days. If the non-custodial parent does not act, then the order becomes final, and the non-custodial parent is bound without further legal process. However, if a hearing is requested, then a telephone “trial” before a hearing officer is conducted, and the child support is determined based on the evidence presented. Also, a parent can petition the circuit court for judicial review of the administrative order within 30 days of the entry of an administrative order, even after an administrative hearing.

However, the non-custodial parent must know that the hearing docket is backlogged for many months, sometimes even a year, and even after the hearing is conducted it may be many more months before the order is issued. Once the order finally is issued, it is set to take effect all the way back to the date that the case was started, so the non-custodial parent may have a year or more of back child support simply because of the slow administrative process, even though there was no order in effect for those months.  This can negatively affect the obligor's credit, and the arrearage is usually assessed at an additional amount per month, basically raising the child support by as much as a few hundred dollars.  Also, once all of this is over, there is an order for child support, but the agency does not have the power to issue orders for custody or visitation, and if the non-custodial parent is the father, essentially there are no legal rights established, other than the “right” to pay child support

The best course of action to take when served with an administrative action for child support is to immediately consult with an attorney. At a minimum, the attorney can represent the non-custodial parent at the administrative hearing to ensure the proper evidence is before the agency and that the support amount is calculated properly. But more importantly a good child support attorney may be able to, in effect, “move” the case to a circuit court before a judge through a judicial action, establish legal custody or visitation rights, ensure paternity is determined conclusively, terminate the administrative action, and remove the family support division from the case.   In a judicial action, unless state debt or interest is in issue, the Family Support Division or other state agency will not participate in the case.  Timing is everything however in dealing with these cases, so consulting with an attorney immediately is critical to avoid a potential financial mess.  

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In today's highly mobile society, is is not uncommon at all for one parent to desire to relocate to another city or state.  While Courts recognize that a parent cannot realistically be confined to one geographic location, the greater the distance between the parents, the more difficult it can be to effectively exercise a joint physical custody arrangement.  Courts routinely have to make difficult decisions that will heavily impact the child's relationship with a non-custodial parent. 

When determining whether to allow children to relocate, the decision is made on a case by case basis, and there is no hard and fast rule.  The Court is required to consider whether the move is made in good faith and  will serve the best interests of the children, and the the court looks to the enumerated factors in RSMO 452.375.2, as in any custody proceeding.  Whether or not the children would benefit economically, socially, or educationally are also considerations, but economic benefit does not have to be shown.

In a recent ruling from the Court of Appeals, a finding prohibiting the relocation was overturned, based on evidence of Mother’s history as primary caregiver, careful provision for children’s needs including time with Father, Father’s child support arrearages and criminal offenses, as well as other factors.  The Court found that, even though the Father and other immediate family would have substantially less time with the children and the children would be moved to another city and another school, the move was in the children's best interests.  To get an idea of how the Court approaches these cases, and what other factors are considered, click here to read the opinion.

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The Missouri Supreme Court has issued an order repealing the prior Form 14 Presumed Child Support Calculation Sheet effective August 28, 2009., and adopting a new Form 14. The only change is that the dates of birth of the children are no longer to appear on the form, only the children's ages.   Support amounts are not affected.

This change is to bring the Form 14 into conformity with Missouri's new social security number redaction law, which provides that social security numbers and dates of birth are no longer to appear in pleadings (documents filed with the court).  Instead, court filings will be accompanied by a new court information cover sheet, which will contain this personal information, but will be sealed and separated from the public record, so that the information can only be viewed by court personnel.

New Form 14

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In a recent ruling by the Missouri Court of Appeals, the court upheld a trial court ruling where marital assets were divided unequally between the spouses, the division included money spent by a spouse after separation, and spousal maintenance was awarded even though the spouse receiving the maintenance also received the larger portion of the marital property.

On the issue of division and the characterization of the property, the court held that the question of whether property is marital property is, among other things, one of credibility. The trial court is given due regard to the determination of credibility of witnesses and the trial judge is free to believe all, part, or none of the testimony of any witness. The trial judge may disbelieve testimony adduced by a witness even if the testimony is not contradicted.  In this recent case, even though the Husband testified that he thought the property in question was a non-marital asset, all other evidence indicated that it was jointly owned by the parties as marital property.

On the issue of marital assets spent by one spouse after separation but before the dissolution of marriage, the court held that the “spending party” can be ordered to reimburse the other spouse through disproportionate property division. In this case, the issue was one or more retirement accounts that the Husband claimed that he “lived on” during the separation, although his salary was sufficient to cover all of his living expenses. The court held that the trial court does not have to specifically find that it believes monies have actually been secreted or squandered in anticipation of divorce, because its actions can imply such a conclusion where sufficient evidence exists to support that conclusion. The court also, even after the reimbursement of the “spent” money and attorney fees, upheld the award of maintenance.   The court said that, even though there was an award of substantial marital assets that the Husband claimed could support the wife, the wife was not required to deplete, or “live off” of those of marital assets before maintenance can be awarded or take effect.

The full text of the opinion can be read here. 

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On July 7, 2009, Governor Jay Nixon signed into law senate bill number 141, which modifies Missouri’s paternity laws, effective August 28, 2009. The new law revises sections 210.826, and 210.828 and adds a new section 210.854, which will now allow men who have been declared the father of a child by a court to petition to set aside the judgment and obtain relief from child support obligations when DNA testing shows that they are not the biological father, if filed within certain time limits.  

The provisions of the new paternity law are summarized as follows:

In an action to determine paternity of a child, a notification form shall be attached to the delivery of the petition through service of process. The notification form shall prominently state in bold face type as follows: "Important Notice. If you do not respond to this action, a judgment of paternity may be entered against you and you may be ordered to pay child support, medical support or reimburse someone for support previously paid for the child. You have the right to contest that you are the father of the named child and you have the right to request genetic testing to prove whether or not you are the father."

The act also provides that a person may file a petition to challenge entry of a judgment of paternity and support upon filing an affidavit stating that evidence exists which was not considered before entry of judgment. Such petition shall also include either an allegation that genetic testing was conducted within the past 90 days using DNA methodology, was performed by an expert, and that the test results indicate the petitioner is not the child's father or a request to the court for an order of genetic paternity testing using DNA methodology. The petition to set aside the judgment may be filed at any time prior to December 31, 2011. After that, the petition shall be filed within two years of the entry of the original judgment of paternity and/or support, whichever occurs later.

The court, after a hearing where all interested parties have been given an opportunity to present evidence and be heard and upon a finding of probable cause to believe the testing may result in a determination of non-paternity, shall order the relevant parties to submit to genetic paternity testing. The petitioner shall pay for the costs of testing.

The court shall grant relief, unless the court makes written findings of fact and conclusions of law that it is not in the best interest of the parties to do so, and enter judgment setting aside the previous judgment of paternity and child support, including a previous acknowledgment of paternity, extinguish any existing child support arrearage, and order the Department of Health and Senior Services to modify the child's birth certificate accordingly upon a finding that the genetic test was properly conducted, accurate, and excludes the petitioner as the child's father.

In addition, any petitioner may apply for expungement of criminal nonsupport records to the court in which the petitioner pled guilty or was sentenced. Such expungement shall only apply to records for criminal nonsupport of a child or children for which the petitioner was found not to be the biological father.

The provisions of this act shall not apply to grant relief to the parent of any adopted child nor shall such provisions be construed to create a cause of action to recover child support or state debt previously paid under court order. The petitioner shall not have a right for reimbursement of any monies paid previously under said order.

Beginning in 2010, the family support division shall track and report to the general assembly the number of cases known to the division in which a court, within the calendar year, set aside a previous judgment of paternity and support under the provisions of this act.

The entire text of the bill can be read here.

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