Express allegations of abuse or neglect required for mandatory appointment of Guardian Ad Litem; Alternating weekend parenting plan is joint physical custody.
Mother appeals the circuit court’s judgment modifying the dissolution decree from her marriage to Father. Mother asserts that the court erred when: (1) it failed to appoint a guardian ad litem pursuant to section 452.423, RSMo Cum. Supp. 2011, claiming that Mother clearly alleged abuse and/or neglect in her motion to modify and, therefore, appointment of a guardian ad litem was mandatory; (2) it awarded sole physical custody to Father because its statutory findings under section 452.375.2, RSMo Cum. Supp 2011, were against the weight of the evidence and the evidence did not support that the custody change was in the best interests of the children; and (3) it allowed evidence of facts that occurred prior to the dissolution of marriage judgment, contending that section 452.410.1, RSMo 2000, restricts the court’s consideration to facts that have arisen since the prior decree.
HELD: AFFIRMED WITH MODIFICATION OF THE JUDGMENT
(1) The circuit court did not err in failing to appoint a guardian ad litem. Mother pled no express allegations of abuse or neglect such as would have triggered the mandatory appointment of a guardian ad litem pursuant to section 452.423
Mother pled no express allegations of abuse or neglect such as would have triggered mandatory appointment of a guardian ad litem pursuant to section 452.423. Mother’s pleadings - regarding “ongoing concerns” about the stability of Father’s mental state, the stability of the children’s environment when they are in Father’s care, and Father’s ability to care for the children in an unsupervised setting - lack specificity with regard to conduct on Father’s part that constitutes abuse or neglect. Mother’s charges, that Father returns the children to Mother with poor hygiene, rashes, and bruises and that she believes Father incapable of providing adequate care and support to the children, are not express allegations of abuse and neglect. Poor hygiene, rashes, bruises, and Mother’s opinion with regard to Father’s parental capabilities, without more, do not constitute abuse or neglect. Regarding bruises, Mother does not imply, let alone expressly allege, Father was responsible for the bruises.
(2) The circuit court did not err in changing the custodial periods awarded each parent. Both parties agreed that there were substantial and continuing changed circumstances that warranted modification of the parenting schedule. The court’s judgment is modified, however, to denominate Mother as joint custodian and to reference Mother’s time with the children as custodial periods.
The parenting plan adopted by the Court grants Mother alternating weekends, Wednesday evenings, alternating weeks during the summer, and alternating holidays. This is “substantial” time for Father, and thus is joint physical custody, not sole physical custody.
(3) The circuit court did not err in allowing evidence of facts that occurred prior to the dissolution of marriage judgment. There is no indication that the court considered the original trial transcript concerning Mother’s previous positive testimony regarding father and even if the court did, it was not prejudicial.