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

In a recent termination of parental rights case, the Court stated that statutory grounds of abandonment, neglect, and unfitness require clear, cogent, and convincing evidence. The Incarcerated parent’s diligent efforts at maintaining contact with child refuted such allegations. The “Child may suffer from Father’s absence, but getting in trouble before he knew about Child is no proof that Father now wants no relationship with her.” Failure to send money from 28¢ per day wages was de minimis. Incarceration does not raise the presumption of unfitness. The child’s best interests require only preponderance of evidence, but the issue never arises until statutory grounds are established. 

The entire opinion can be read here.

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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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Newly passed legislation will finally enact the Uniform Child Custody Jurisdiction and Enforcement Act as of August 28, 2009. Missouri was one of only three states that had not yet enacted the UCCJEA. This act will replace the current Uniform Child Custody Jurisdiction Act (UCCJA).

The act limits child custody jurisdiction to one state, avoids competing orders, and provides enforcement provisions for child custody orders. The act further establishes orders of priority and guidance on issues regarding establishing initial custody determinations, continuing jurisdiction, modification of custody determination, and emergency orders.

Similar to the UCCJA, The UCCJEA establishes an order of priority for determining which state has proper jurisdiction to make an initial determination of child custody. The order of priority includes a determination of (1) the child's home state, (2) the state in which the child and at least one parent have a significant connection and substantial evidence concerning the custody determination is available or (3) the state having an appropriate connection with the child.

The child's home state is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding, or since birth, for children younger than six months.

Once a state court has made a custody determination, the state keeps exclusive and continuing jurisdiction over all matters concerning the child until circumstances have changed regarding home state status, or there is no longer a significant connection to the state or evidence concerning the child's custody is no longer available in that state. The circumstances are specified in the act.

Also, once a custody determination has been made, a court of another state does not have authority to modify the determination unless the state with jurisdiction determines that it does not have jurisdiction or any state court determines that the child, parents, or any acting parents do not reside in the state which currently has jurisdiction.

A state which does not otherwise have jurisdiction may enter a temporary emergency order if the child is in danger and needs immediate protection. After issuing the order, the state court should determine if there is an existing custody order from another state in effect. If there is an existing order, the emergency court must allow a reasonable time period for the parties to return to the state having jurisdiction and argue the issues to the court with jurisdiction.

If there is no previous child custody order in existence, the emergency court's order will remain in effect until a determination is made in a court having home state jurisdiction over the child. If no determination is made and the emergency court's state becomes the home state of the child, the emergency order becomes a final determination of custody.

Missouri has now also done away with the requirement that social security numbers be included in family law pleadings and judgments.   Under the new law, parties will still file social security numbers with an information sheet, but that will be maintained by the court confidentially, and only the last 4 numbers will be included in the judgments or pleadings in the public record.

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Senate Bill 25, set to take effect on August 28 of this year, was delivered to governor Matt Blunt on May 30, 2007.  The Bill affects various statutes pertaining to child protection, enforcement of child support, and termination of child support, The summary of the bill is as follows:

             CHILD ABUSE AND NEGLECT INVESTIGATIONS

This act prohibits the Missouri Children's Division from closing a child abuse or neglect investigation if a child subject to the investigation dies during the course of the investigation, until such time as any separate investigation by the Division regarding the death is completed. (Section 210.145)

FOSTER PARENTS' BILL OF RIGHTS

This act modifies several provisions regarding the rights of foster parents, and states that the children's division and its contractors shall provide foster parents with written notification of the rights enumerated in this act at the time of initial licensure or renewal of licensure.

The act provides that the division and its contractors shall provide foster parents with regularly scheduled opportunities for preservice training and pertinent inservice training, as determined by the Missouri State Foster Care and Youth Advisory Board. The division and its contractors shall provide to foster and potential adoptive parents, prior to placement of children, a full disclosure of all medical, psychological, and psychiatric conditions of the child, information from previous placements that would indicate a propensity of the child to engage in violent or destructive behavior, information related to the child or child's family including history of mental or physical illness, sexual abuse or perpetration, criminal background, fire-setting or other destructive behavior, substance abuse, or any other information that is pertinent to the care and needs of the child and protection of the foster or adoptive family. Knowingly providing false or misleading information in order to secure placement for a child shall be denoted in the caseworker's file and shall be kept on record by the division. Foster parents shall be informed in a timely manner of all team meetings related to licensure status or children placed in their home. Foster parents shall follow all division and contractor procedures related to requesting and using respite care.

The act also provides that foster parents may share otherwise confidential information about children in their care with school personnel in order to secure safe and appropriate education for such children, and may share such information as is necessary for medical or psychiatric care of the child. Foster parents also must share any concerns that arise in the care of any child in their home with members of the child welfare team. Foster parents are also required to be flexible and cooperative with regard to family visits.

The act states that the division and its contractors shall provide foster parents with training that specifically addresses cultural needs of foster children, including but not limited to skin and hair care, and religious or cultural practices of the child's biological family, and shall provide referrals to community resources for ongoing education and support. Foster parents shall use discipline methods which are consistent with division policy.

The act also provides that foster parents shall give two weeks notice when requesting removal of a child in their home, except in emergency situations. Also, if a child reenters the foster care system and cannot be placed in a relative home, such child's former foster parents shall be given first consideration for placement of the child. If a foster child becomes free for adoption, foster parents shall inform the caseworker within 60 days of any inquiry as to whether they desire to pursue adoption, and if they choose not to do so, foster parents shall support the child's placement in a permanent home by providing information on the history and care needs of the child, as well as accommodating transitional visitation. The act provides that foster parents shall be informed by the court no later than two weeks prior of all court hearings pertaining to a child in their care.

The act also provides that the division and its contractors shall provide access to an impartial grievance procedure to address issues relating to foster parent licensure, case management decisions, and service issues. (Section 210.566)

These provisions are substantially similar to SB 697 (2007).

CHILD SUPPORT ENFORCEMENT

This act modifies various provisions relating to child support enforcement. Under current law, the Child Support Enforcement Division may certify a person who owes a child support arrearage in excess of 5,000 dollars to the appropriate federal agency for denial, suspension or limitation of a passport to such person. This act lowers the arrearage threshold for passport denial certification from $5,000 to $2,500. This act also allows the division to open a corresponding child support case based on another state’s request for assistance.

Definitions for "parent," "dependent child," "obligee," "obligor," and "public assistance" are modified. Among such modifications are adding putative father and legal father into the definition of "parent" and adding the state into the definition of "obligee."

This act also allows the Child Support Enforcement Division to collect past due support owed to the state when a caretaker relative was on assistance or the child was in the custody of the state. The division is also allowed to establish an administrative order against any parent who does not already have an order against them. Under current law, the division can only establish an order if there is no order of support for the child. The division is also allowed to vacate an order which was improperly entered without jurisdiction or due process. Under current law, a court order is needed in order to avoid these orders. This act also specifies that an administrative modification can be made and must be approved by the court to become an enforceable order. If the order is not approved, the matter is then set for trial de novo.

This act also authorizes the Missouri Gaming Commission to direct gambling boats to intercept and pay over gambling winnings to individuals who owe past-due support or state debt, if winnings meet criteria for reporting to the Internal Revenue Service. (Section 454.390, 454.455, 454.460, 454.470, 454.496, 454.511, 511.350)

These provisions are substantially similar to SB 603 (2007) and HB 936 (2007).

CHILD SUPPORT MODIFICATION

This act allows a parent to stop paying child support when his or her child reaches 21 years of age or is at least 18 years of age and receives two failing grades in half or more of his or her courseload in any one semester when enrolled in at least 12 credit hours of higher education. (Section 452.340)

These provisions are substantially similar to HB 493 (2007).

The entire bill can be read here.

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Evidence of abuse of a party must be allowed in child custody proceeding. KRP, a Minor by her Next Friend, Gleanice Brown, and Gleanice Brown, Individually, Respondent, v. Curtis Penyweit, Appellant, No. 66003 (Mo. App. W.D., April 24, 2007), Smith, J.
  The parties were vying for custody in this paternity action. Father attempted to introduce evidence that mother had physically abused him in the past. Mother's attorney objected to its relevancy unless the child at issue was present at the time. The trial court sustained the objection. Mother was awarded sole custody, and father appealed.
  Held: Reversed. “Giving the language of the statute its plain and ordinary meaning, there is no language in section 452.375.2(6) that would in any way limit the court's consideration to abuse occurring only in the presence of the child. In fact, the language says just the opposite. The statute refers to 'any' abuse of 'any' individual involved.”

Source: Missouri Bar

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