Missouri Courts Bulletin: Substantial Change in Circumstances Not Required for Change in Parenting Time in Joint Custody Arrangement
Standard of proof for modification of joint physical custody. Kimberly Russell n/k/a Kimberly Bichsel, Respondent v. Mark Russell, Appellant, No. 87917 (Mo. banc, January 9, 2007), Wolff, C.J.
It is axiomatic that the modification of visitation only requires that the proposed change be in the best interest of the child whereas a modification of custody requires a more stringent standard of proof, i.e. that there has been a change in the circumstances of the child or custodial parent such that a modification is needed in order to serve the best interests of the child.
The parties' original judgment granted them joint legal and physical custody of their three-year-old child. The schedule essentially had the child with mother during the work week and with father every weekend. Since that time, mother has become employed full time, and the child goes to school. Father now worked until late evening on most Fridays as well. The trial court changed the core schedule to begin father's custody on Saturdays at 9:00 a.m. and granted the mother the third weekend of each month. Other modifications not involving custody were entered, but not important to this summary. Father appealed because the trial court used the standard of proof for visitation modification.
Held: Affirmed as to modification of custody. Section 452.410 RSMo addresses modifications of custody, and §452.400.2 addresses modifications of visitation.
“The question here is which modification statute applies to a court's previous award of joint physical custody. A threshold matter in many modification cases will be whether the initial custody arrangement is, in fact, joint physical custody, as defined by statute.”
[§ 452.375.1(3)]. This opinion determined that this original judgment was for joint physical custody.
“This case presents a clear example of one concern created by this legal paradigm shift (from sole custody/visitation to joint custody). Changes such as those the circuit court made here – essentially a few hours a week – are not as drastic as a shift from sole custody of one parent to sole custody of another parent. The requirement that the change be substantial is no longer appropriate where simple shifts in parenting time are at issue. Courts should not require a 'substantial' change from the circumstances of the original judgment where the modification sought is simply a rearrangement in a joint physical custody schedule.”
Even though the trial court applied the visitation modification statute, its judgment can be affirmed by applying the correct standard.
Source for Post: Missouri Courts Bulletin for February 2007
