Parent Must Show Change In Circumstances Before Best Interests of Child, Statutory Factors, in Sole Custody Switch
Findings are not required under 452.375 (custody statute) where the trial court has determined that the party seeking to change a custody order has failed to satisfy the required burden of proof. The required findings under 452.376 do not come into play in a modification proceeding under 452.410 (modification statute) unless the court has first found the requisite change of circumstances. And the public policy findings of section 452.375.4 (third party custody) are likewise not for consideration until the court reaches the question of best interests. The best interests analysis does not come into play before a change of circumstances has been proven. In Russell v. Russell, the Supreme Court reaffirmed that, where the proposed modification seeks to deprive one parent of physical custody, both a change in circumstances and best interests need to be proven.
Such is the case in a recent ruling from the Court of Appeals, where Father sought to change sole custody to himself. Because Father sought a change from sole custody to Mother to sole custody to Father, he was required to prove a substantial change of circumstances. The Russell court limited its express holding to the change from joint custody to sole custody. The rationale, however, that a substantial change was required if one party seeks "to deprive one custodial parent of custody altogether" is equally applicable in this case, according to the Court of Appeals for the Western District.
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