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.

• Email This
• Print
• Comments
• Trackbacks

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.  

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

 

• Email This
• Print
• Comments
• Trackbacks

The Uniform Child Custody Jurisdiction and Enforcement act (UCCJEA) may finally win approval in this year’s legislative session. The measure is part of the Omnibus Judicial Bill (HB 187) that was perfected by a voice vote in the House this week. The House must approve the bill by a recorded vote before it can be sent on to the Senate. Missouri is among only three states (Vermont and New Hampshire) that have yet to adopt the UCCJEA.

The UCCJEA repeals the current Uniform Child Custody Jurisdiction Act (UCCJA). The act specifies the procedures, priorities, and factors to be considered in initial custody jurisdiction determinations, continuing jurisdiction determinations, modification of custody determinations, and emergency orders. Also, family access orders may be filed relating to establishment or modification of custody or visitation including, but not limited to, dissolution, modification, third-party visitation, or paternity.

 

• Email This
• Print
• Comments
• Trackbacks

 

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.

 To read the entire opinion, click here.

 

• Email This
• Print
• Comments
• Trackbacks

As most people know, the California Supreme Court recently ruled that the state's ban on same-sex marriage was unconstitutional.  So what does that mean for Missourians? 

• In California, there were two statutes that said that a marriage is between a man and a woman, which was interpreted to prohibit same sex marriage.  The Supreme Court ruled those statutes to be unconstitutional under the California Constitution (not the federal).   It is now legal for same sex couples to marry in California.

 

• Missouri is different.  In Missouri, rather than a statutory ban on same-sex marriage, we have a constitutional amendment (2004) that defines marriage as being only between a man and a woman, and marriages between same-sex couples are not recognized.  There is also a federal statute in play called the Federal Defense of Marriage Act which permits Missouri (and other states) to deny full faith and credit to the marriage laws of another state.  This means that Missouri does not have to recognize a same-sex marriage that is perfectly legal in California since it is inconsistent with Missouri law.  The federal law's constitutionality has not been fully challenged yet.

 

• Taken together, it is presumed that if a same sex married couple moved to Missouri, or Missourians went to California to get married and returned to Missouri, their marriage would not be recognized.

 

• This also means that same-sex married couples could not obtain a divorce in Missouri because there would be no jurisdiction for the courts.  Thus, dissolution of marriage laws that control child custody, visitation, support, maintenance, and property division would presumably not apply.

 

• In the event of a separation the couple would probably have to file an action under the Uniform Parentage Act (commonly known as a paternity action currently) to determine custody, visitation, and child support issues if adopted children are involved.

 

• Same sex couples may want to utilize prenuptial agreements, antenuptial agreements, contracts, and other documentation to control the disposition of assets, including real estate, personal property, bank accounts, securities, business interests, etc.

Source for Post:  mobar.org Esq. soundbite. 

• Email This
• Print
• Comments
• Trackbacks

Two proposals by the Family Law Section of the Missouri Bar failed to pass in 2008. 

House Bill 1358 proposed to enact the Uniform Child Custody Jurisdiction Enforcement Act.  Missouri remains one of only four jurisdictions that has not adopted the Act.  If adopted, the act would have changed the rules pertaining to initial child custody jurisdiction, continuing jurisdiction, modification jurisdiction, and emergency orders.  Text of the bill can be read here.

House Bill 1360 would have made changes to Missouri's Interstate Family Support Act, which governs jurisdiction and enforcement for interstate child support orders.  The proposed bill would have also established several direct interstate enforcement mechanisms for caretaker parents.  Text of the bill can be read here.

 

• Email This
• Print
• Comments
• Trackbacks

Circuit Court May Depart From Recommendations On Physical Custody
Guardian ad litem and court-appointed therapist both recommended joint legal custody and supervised visitation for Father. Circuit Court followed the former but not the latter. When evidence supports an alternative award, “the trial court is not bound by the requests of any party as to custody or visitation, even when both parties agree.” No judgment required Father to pay child support and Mother forgave some of it, so Circuit Court did not abuse its discretion in awarding no retroactive child support.
In re the Matter of L.J.S., by A.C.H., as next friend, and A.C.H., individually, Petitioner-Respondent, v. F.R.S., Respondent-Appellant. Missouri Court of Appeals Southern District

Circuit Court Must Decide Contempt Action
Upon dismissal of motion to modify custody, guardian ad litem was discharged, and testified only as to fees, mooting motion to remove guardian. Circuit Court issued an order that Father show cause why he should not be held in contempt for failure to pay child support. Circuit Court consolidated contempt action with child support modification action for all purposes, giving notice to Father, so that Circuit Court's failure to rule on it did not result in loss of jurisdiction. Circuit Court must decide it. Record supported Circuit Court's findings as to parties' relative income.
Angela Shapiro McCoy, Appellant v. Samuel Scavuzzo, Respondent. Missouri Court of Appeals Western District

 Findings Show Grounds For Termination Of Parental Rights
Presence of findings related to abuse shows that parental unfitness was not the sole grounds for termination of parental rights. Past abuse and lack of present reform raise presumption of future threat to Child's future.
In the Interest of: K.R.G., A.K.G., and R.C.G., C.G., Appellant v. The Christian County Juvenile Office, Respondent. Missouri Court of Appeals Southern District

Objection To Relocation Waived
Statute requires notice before permanently relocating children's residence. After temporary relocations, Mother gave notice of intention to permanently relocate as required by statute. Father did not file objection as required by statute and so waived objection.
Gina M. Dent, Petitioner/Respondent v. Charles W. Dent, Respondent/Appellant. Missouri Court of Appeals Eastern District

Source for Post:  The Missouri Bar

• Email This
• Print
• Comments
• Trackbacks

Every divorcing parent should make it their top priority to keep their children from getting caught in the middle of the conflict of their divorce.  The following is the second installment of tips and thoughts are from James Roberts, RSW, a licensed social worker  in Missouri and Kansas and family therapist in Kansas.  Mr. Roberts practices with Madison Avenue Psychological Services in Kansas City Missouri.  See the March10 post below for tips 1-4.

5.     Sabotaging the Child's Routine

When parents fail to give a child medication, fail to follow through on discipline imposed by the other parent, or bend rules on bed-time, diet, or curfews out of anger for the other parent, they are involving the child in parental conflicts.  conflicted parents frequently take their children to medical professionals without consulting the other parents as a way of acting out unresolved divorce disputes.  This practice places parental conflict above the child's medical well-being.

6.     Compensating for the Other Parent's Failures

One divorced parent may view the other parent as a poor parent for being "too lenient", "too strict", "too involved", or "not involved enough".  Such parents often try to compensate for the other parent's "failures' by being the opposite kind of parent.  Children in such situations suffer by not having parents who are using a balanced approach to rearing children.

7.     Making a Popularity Contest of Parenthood

A parent may try to win the affection of a child out of fear that the child favors the other parent.  such parents go overboard to "be nice" or refrain from being firm with their children. Children suffer in these situations by not having the advantage of a parent who is acting in the proper role of authority figure.

8.     Being an Accomplice to Whining

A parent may allow a child to complain about the other parents without helping the child see a more balanced view of the other parent.  If the parents either passively accepts the complaint or fails to urge the children to take up these grievances with the other parent they subtly encourage children to use indirect communication as a way of managing conflict.

The remaining 4 tips will appear in a future post

Source for Post:  James Roberts, RSW and the Kansas City Metropolitan Bar Association

• Email This
• Print
• Comments
• Trackbacks

Premature Investigation And Study Require Dismissal
Statute requires Circuit Court to order investigation and social service study after filing of petition to terminate parental rights. Circuit Court ordered investigation and social service study before filing of petition to terminate parental rights. Mother need show no prejudice for Court of Appeals to reverse judgment and remand for further proceedings.
In the Interest of: N.A.H. (D.O.B: 04-21-04) A Child Under Seventeen Years of Age. Missouri Court of Appeals Southern District

Source for Post:  Missouri Bar

• Email This
• Print
• Comments
• Trackbacks

Record supports findings that Father could have supported and contacted Child but did not do so, that he did not repent of his conduct, and that his present and future conduct would be no different.
In the Matter of E.F.B.D. W.H. and K.H., Petitioners-Respondents, v. S.B., Respondent-Appellant. Missouri Court of Appeals Southern District

(Father) appeals from a judgment terminating his parental rights to E.F.B.D.(FN1) Father's parental rights were terminated on the ground of abandonment pursuant to Section 211.447.4(1)(b).(FN2) On appeal, Father contends there was insufficient evidence to prove this statutory ground for termination. Alternatively, he contends there was sufficient evidence to show that he repented of his abandonment of E.F.B.D. The Court affirms.

Law Pertaining to Termination of Parental Rights
To terminate parental rights, a trial court must use a two-step analysis. In re S.J.H., 124 S.W.3d 63, 66 (Mo. App. 2004). In the first step, the court must find by clear, cogent and convincing evidence that one or more statutory grounds for termination exist. Section 211.447.5; In re P.L.O., 131 S.W.3d 782, 788 (Mo. banc 2004). "Clear, cogent, and convincing evidence is evidence that instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true." In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005). This standard of proof may be satisfied even though the court has contrary evidence before it or the evidence might support a different conclusion. In re Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984); In re A.K.F., 164 S.W.3d 149, 151 (Mo. App. 2005). After finding one or more statutory grounds for termination have been proven, the trial court then moves to the second step and must determine, by a preponderance of the evidence, whether the termination of parental rights is in the child's best interest. Section 211.447.5; P.L.O., 131 S.W.3d at 789; S.J.H., 124 S.W.3d at 66.

Abandonment in Missouri

Section 211.447.4(1)(b). In relevant part, this subsection states that "[t]he court shall find that the child has been abandoned if, for a period of six months or longer … (b) The parent has, without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so[.]" Id.; see In re J.M.S., 83 S.W.3d 76, 82 (Mo. App. 2002). Abandonment has been defined as either "a voluntary and intentional relinquishment of the custody of the child to another, with the intent to never again claim the rights of a parent or perform the duties of a parent; or ... an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance, and the opportunity for the display of filial affection." In re Watson's Adoption, 195 S.W.2d 331, 336 (Mo. App. 1946); see In re P.G.M., 149 S.W.3d 507, 514 (Mo. App. 2004). This largely presents an issue of intent, which is inferred from the parent's conduct. In re P.L.O., 131 S.W.3d 782, 789 (Mo. banc 2004); P.G.M., 149 S.W.3d at 514. Evidence of the parent's conduct both before and after the requisite six-month period may be considered. In re J.B.D., 151 S.W.3d 885, 888 (Mo. App. 2004). However, "[o]nly the parent's conduct prior to the filing of the petition for termination may be considered to establish the six-month period." Id.

• Email This
• Print
• Comments
• Trackbacks

In the Matter of D.C.O. and A.D.O., Bill Hitt and Brenda Hitt, Appellants v. Mark S. Odom, Respondent, No. 28163 (Mo. App. S.D., December 7, 2007), Parrish, P.J.
  The father of two minor children filed a motion to modify a prior judgment granting grandparent visitation. The judgment from which he sought modification had been entered in 2001 in the Probate Division of the Circuit Court of Dunklin County. That litigation had been based on a two-count petition brought by said grandparents. Count I was for guardianship of the children, and count II was for grandparent visitation. Prior to the entry of judgment in 2001, count I was dismissed and the parties entered into a stipulation that resulted in the grandparents receiving visitation, pursuant to the judgment.
  The trial court in the modification action determined that the original court had no jurisdiction to enter the judgment for grandparent visitation upon the dismissal of count I of the action for guardianship. The trial court declared the judgment void ab initio. The grandparents appealed.
  Held: Affirmed.
  A probate court is limited in the exercise of jurisdiction to those granted by applicable statute. “Grandparent visitation rights are addressed by § 452.402 which relates to custody issues in dissolution of marriage and other related cases that a probate division does not hear.”
“Upon dismissal of Count I, there was no probate matter remaining.” Therefore, the judgment was void at its inception.
  “If there is now an issue regarding visitation rights, it can be pursued by an action separate and apart from the one that produced this appeal.”

Source For Post: MIssouri Bar

• Email This
• Print
• Comments
• Trackbacks

What happens if there is a court ordered parenting plan as a result of a divorce, paternity case, or other proceeding, and one of the parents wishes to relocate to another city or state?  Well, Missouri law places a burden on the parent to notify the other parent, in writing, meeting specific requirements, before the relocation.  Essentially, the parents must be able to agree on a new parenting plan, and if they cannot, they have an opportunity to have the Court decide whether the parent can relocate.  The following are the requirements of Missouri's statutory restriction on relocation:

Absent exigent circumstances as determined by a court with jurisdiction, a parent with physical custody of a child will notify, in writing by certified mail, return receipt requested, and at least sixty days before the proposed relocation, each party to this action of any proposed relocation of the principal residence of the child, including the following information:

• The intended new residence, including the specific address and mailing address, if known, and if not known, the city
• The home telephone number of the new residence, if known
• The date of the intended move or proposed relocation
• A brief statement of the specific reasons for the proposed relocation of the child
• A proposal for a revised schedule of custody or visitation with the child

The parent’s obligation to provide this information to each party continues as long as that parent is entitled to custody of a child under a court order. The parent’s failure to abide by this provision regarding the proposed relocation may result in further litigation to enforce the requirement, including contempt of court for violating a parenting plan that has been incorporated into the court’s judgment. In addition, the parent’s failure to notify a party of the relocation of the child may be considered in a proceeding to modify custody or visitation with the child. Reasonable costs and attorney fees may be assessed against the parent for failing to give the required notice.

            Once a parent intending to relocate has given the proper notice to the other parent, the parent receiving the notice has thirty days from the date the notice was received to file a motion and affidavit in court setting forth the factual basis supporting that parent’s objection to the relocation. The parent requesting the relocation will then file a response within fourteen days, unless extended by the court, and this response will include a counter-affidavit setting for the facts in support of the relocation as well as a proposed revised parenting plan for the child.

            The parent seeking to relocate will have the burden of proving that the proposed relocation is made in good faith and is in the best interests of the child.

• Email This
• Print
• Comments
• Trackbacks

In Missouri, there is a specific law that details under what circumstances Missouri Courts have jurisdiction to make custody and visitation orders, called the Uniform Child Custody Jurisdiction Act, or MoUCCJA.  Section 452.150.1 sets out the four alternative jurisdictional bases that exist under the UCCJA. If a court is otherwise competent to decide a child custody matter, the statute grants the court subject matter jurisdiction to do so if:

(1) this state is:

            (a)        The “home state” of the child at the time of the commencement of the proceeding (defined as the state where a child has lived for 6 consecutive months); or

            (b)        had been the child’s home state within the six months before commencement of the proceeding and the child is absent from this state for any reason, and a parent or person acting as parent continues to live in this state; or

(These two 6 month provisions are different and must be read together)

(2) It is in the best interests of the child that a court of this state assume jurisdiction because:

            (a)        The child and his parents, or the child and at least one litigant, have a significant connection with this state and

            (b)        There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or

(3) The child is physically present in this state and:

            (a)        Has been abandoned; or

            (b)        It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse, or is otherwise being neglected; or

(4) It appears that no other state would have jurisdiction under prerequisites 1, 2, or 3, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction. 

       “The primary purpose of the UCCJA is to ensure that custody determinations are made in accordance with, and in the state best suited to provide for, the welfare and best interest of the child. To that end, the UCCJA is purposely designed “to ensure that a child’s custody determination is made in the state with which the child and his family are most closely connected and where the most significant evidence concerning the child’s custody is available. The comments to the UCCJA make it clear that the bases of jurisdiction in paragraphs (1) – (4) of §452.450.1 are set out in descending preferential order and that the first two bases for jurisdiction, home state and significant connection with family, establish the two major bases for jurisdiction.

            A trial court’s jurisdiction under the UCCJA to hear custody matters must be based upon circumstances existing at the time the Court’s jurisdiction is invoked. Missouri courts have repeatedly observed that "it is implicit in the scheme of the UCCJA that the trial court should make an initial determination of jurisdiction by express findings of fact before proceeding to the substantive issue of custody

Recent rulings in the last few weeks

  In Roman Gosserand, Respondent, v. Tiffani Gosserand, Appellant  the court restated that the jurisdictional bases are to be analyzed in decending order, which means that home state jurisdiction is the strongest, with significant contacts being second. In this case there was a “home state” as defined in the statute, and the Father of the child argued that the state with the most “significant contacts” should be the appropriate state. The Gosserand court disagreed and held that since there was a “home state”, that was the strongest jurisdictional base and there was insufficient evidence to overcome it, and the “home state” was the appropriate jurisdiction.

In Theresa Schoenecke, Plaintiff-Appellant, v. Brent Schoenecke, Defendant-Respondent, the Court dealt with the issue of the requirement that the Court must make express findings of fact as to jurisdiction before proceeding to determine the substantive issue of custody. In Schoenekcke, the trial court ruled that there was no child custody jurisdiction without any explanation as to how the court came to that decision. This ruling was based on in chambers and off the record arguments of the attorneys. There was no presentation of evidence to support the ruling of the court. Because of this the Court of Appeals remanded the case back to the trial court to make express findings as to jurisdiction.

• Email This
• Print
• Comments
• Trackbacks

The New York Divorce Report recently had an interesting post regarding pets and divorce.  Being a dog fanatic myself (Golden Retriever and Black Lab in our family), I thought it was particularly interesting

When a childless couple divorces there is generally no issue of custody, except when there is a dispute about who will get custody of the four legged family members.

The ABA Journal E Report features a case in which a lawyer was appointed as guardian ad litem for a dog in a contested custody dispute. This report lead a columnist for the Times and Democrat to imagine the negotiation for custody of a dog in a divorce:

There would be many issues to discuss: Who will get primary custody and who will get visitation rights? Is joint custody a possibility? With whom does the dog spend holidays? Then there is the issue of doggie support: Who will be responsible for the dog’s veterinary care and the associated expenses? Who will pay for his grooming? Well, at least the couple wouldn’t have to argue about who pays for his education.

I would agree with the New Your Divorce Report that when a divorcing couple disputes custody of a dog or cat, courts have treated the matter not as a custody dispute but as a personal property issue.  However, I have seen on a few occasions in Missouri courts, a parenting plan for pets.  It is minimal and just limited to visitation, but I imagine that if someone wanted the Court to order such a plan, it would do so.  Whether that could actually be enforced is another question, though.

 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

Evidence For Terminating Parental Rights Was Too Old
Finding of neglect must "be based on conduct at the time of termination, not just at the time jurisdiction was initially taken." Circuit Court entered its judgment terminating Father's parental rights on a record of neglect and failure to rectify that was a year and five months old. Finding on lack of bonding was not supported by substantial evidence.
In the Interest of C.A.L., a child under seventeen years of age. Missouri Court of Appeals Southern District

Evidence Showed No Failure To Rectify
Mother had temporary financial troubles, based on health problems, after which she supported her children. Mother failed to visit Child, but only when incarcerated, and "visited consistently and regularly" since then. "[N]othing in the record speaks to circumstances that existed at the "time of termination." Bonding assessment was two years old, but showed that Mother had bonded with Child. Judgment terminating the parental rights of Mother reversed.
In the Interest of C.A.L., a child under seventeen years of age. Missouri Court of Appeals Southern District

Post:  The Missouri Bar

No Appeal From Stay
Circuit Court's stay of a paternity action, pending litigation in Illinois, is not a final judgment, so it is not subject to appeal.
Valerie May Palmer, et al., Plaintiffs/Appellants v. Roberto Grajeda, Jr., Defendant/Respondent. Missouri Court of Appeals Eastern District

• Email This
• Print
• Comments
• Trackbacks

I recently found a great article on kidshealth.org discussing how to plan a successful, fun, and active family vacation involving everyone in the family and focusing on a little extra physical activity.  The article is reproduced below:

If you think fitness is important for your family, an active vacation might sound appealing. It's a chance to do activities your family already enjoys and maybe try something new. But before you pack the hiking boots, bike helmets, and swim goggles, find out how to plan a trip that will be active and fun without being exhausting, especially for young travelers.

What's an Active Vacation?

Lots of vacations are active, but specifically planning an active vacation means you're looking for an extra measure of physical activity. Instead of only going to the beach, for example, you might choose a hotel that offers tennis lessons, fishing excursions, and shuttles to a nearby water park.

For a trip to a big city, an active trip could include walking tours, visits to museums and zoos, ice skating or inline skating in a local park, and ending each day with a dip in the hotel pool. Then there are full-fledged adventure vacations that focus on whitewater rafting, downhill skiing, scuba diving, or mountain biking.

Camping is another popular choice and can be affordable to extravagant, depending on where you go and how much camping gear you already own. The nation's 388 national parks offer a wide range of activities, from nature walks to a program that awards your child the distinction of being a Junior Ranger (see sidebar).

Step 1: Choose Your Destination

After the adults decide on the vacation budget and a couple of trip ideas, it's a good time to get the kids involved. Older kids might want to vote on the list of possible trips, while younger kids will appreciate seeing photos of where you've decided to go and all the fun stuff to do there.

Because you're trying to incorporate activity, it's important to consider each family member's interests and needs. If mom is an expert skier but everyone else is a novice, will that work? Perhaps - if the resort offers ski lessons for the rookies as well as other options for when the slopes have grown tiresome, such as toboggan rides, ice skating, and arts and crafts at the lodge.

Travel websites and alumni associations often can provide low-cost deals on trips.
Look into vacation packages for families because they will cater to kids of all ages as well as to parents. Finding a family-friendly outfitter is especially important when planning an adventure trip, like biking or rafting, because many of those packages are far better suited to adult travelers.

A family cruise can be a good choice because it's self-contained and there's plenty to do. But the round-the-clock eating so common on many cruise ships could interfere with your plans for a healthy vacation. And there are some challenges if you're looking for a lot of physical activity. While cruise lines do offer activity programs and on-shore excursions, there could be limits to the amount of physical activity you can engage in while onboard. If you're considering a cruise:

• Ask about the pools, climbing walls, classes, and other offerings. Are they easily available, or are there waiting lists or long wait times?
• Find out if the cruise line offers active programs for kids of all ages, or just a childcare service.
• Sign up early for on-shore excursions and other activities that could fill up quickly.

With other types of trips, too much activity can be a problem. Some pre-packaged trips might schedule more than your family can handle, so be sure to review the itinerary before signing up. They also can be expensive. Traveling off-season is an option, but may become impossible once kids are in school.

Step 2: Get Kids Involved in the Itinerary

Once you know where you're going, let kids help map out your trip. Older kids might like researching your destination online or in travel books. Younger kids will like seeing a short list of options and getting to choose something special they'd like to do or see. Letting your child choose some of the family's activities encourages good feelings about being physically active together.

Another way to involve kids is to put each one in charge of some aspect of the trip. Is there a natural photographer in the family? Ask that child to take pictures and create a scrapbook when everyone's back home. Or maybe one of your kids likes maps. Get a child-friendly map and let him or her follow your route as you travel to your destination. Kids also can help guide you using maps in museums, zoos, or amusement parks. School-age kids might like having a travel journal to record memories in words and pictures.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

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

• Email This
• Print
• Comments
• Trackbacks

Death Moots Appeal
Father's death mooted Mother's appeal of visitation provisions in judgment. As to Third-Party Respondent, Mother's appeal of property division is supported by evidence in the record, so Court of Appeals affirms. "[T]his Court accepts as true the evidence and reasonable inferences . . . in the light most favorable to the trial court's decision [and will] disregard all contradictory evidence and inferences . . . contrary to the court's decision."
Mary Margaret Holtgrewe, Appellant, v. Kurt Lawrence Holtgrewe, Respondent, Marlene V. Holtgrewe, Third Party Respondent. Missouri Court of Appeals Eastern District

Stalking By Text Messaging Not Proven
Plaintiff alleged that Defendant's contacts alarmed her, but testified merely that Defendant's text messages and telephone calls bothered her. Such evidence was insufficient to support a full order of protection.
Christinia M. George, Respondent, v. Candace McLuckie, Appellant. Missouri Court of Appeals Western District

Tax Returns Must Be Disclosed
Movant showed no prejudice in Circuit Court's erroneous refusal to require production of Respondent's tax returns because she did not show that the returns alone would have proven her case. Because Circuit Court found that Movant didn't meet her burden of proof, Circuit Court's failure to make a requested finding of fact on whether maintenance was modifiable or not was harmless.
In Re the Marriage of: Bradley Alan Mangus and Ronda Darlene Mangus. Bradley Alan Mangus, Petitioner/Respondent v. Ronda Darlene Mangus, Respondent/Appellant. Missouri Court of Appeals Southern District

• Email This
• Print
• Comments
• Trackbacks

Failure To Provide Shown
Overwhelming evidence supporting Circuit Court's finding that Mother was negligent included frequent moves and association with men known to abuse children, failure to make and keep appointments for Child's therapy, and failure to contribute. Mother waived findings of fact by filing no motion to amend.
In re the Interest of: K.M.C., III. Missouri Court of Appeals Southern District

Too Much Grandparent Visitation
Courts will determine on a case-by-case basis whether Grandparent visitation intrudes too much on parenting. Circuit Court's order of Grandparent visitation on regular weekends and holidays was more than the occasional and temporary amount allowed by statute because it "would leave fewer options for the family to socialize as a unit. Thus, we remand the case to the trial court to order visitation that is less frequent and more flexible than the current one."
Don Shemwell and Mary Shemwell, Respondents, v. Karen Arni, Appellant. Missouri Court of Appeals Western District.

Source for Post:  The Missouri Bar

• Email This
• Print
• Comments
• Trackbacks

Editor:
  John W. Dennis, Jr. , Esquire
Remand is necessary for the trial court to enter the statutorily appropriate nomenclature in describing the type of custody being awarded to the parents in this matter. Shane M. Granger, Respondent v. Tina M. Granger, Appellant, No. 27852 (Mo. App. S.D., April 2, 2007) Barney, J.
  The judgment of dissolution of marriage was reversed for two reasons. The remand for the entry of specific findings of fact as to domestic violence is not summarized here. The trial court awarded custody to the “parties jointly” and named father “residential custodian” and mother “non-primary custodian.” Mother appealed.
  Held: Reversed.
  “…[F]ailure to use proper nomenclature in describing the type of custody being awarded to a parent is confusing to litigants and impedes proper appellate review.” In re: Marriage of Copeland, 148 S.W.3d 327n.1 (Mo. App. 2004). As Wife maintains, there are no statutory designations for 'separate custody' or 'non-primary custodian' as set out by the trial court in the Judgment. Additionally, setting out a custody award to the 'parties jointly' is at best ambiguous and confusing and is also not a disposition recognized by either section 452.375.1 or 452.375.5.”

Source for Post:  The Missouri Bar

 

• Email This
• Print
• Comments
• Trackbacks

Child-rearing is often a sensitive and complicated issue for couples, and many argue about just how to properly raise their young. But for children, major parental disagreement is a source of mixed messages and confusion that may undermine the attitudes, values and behaviors parents hope to teach. Stacy DeBroff, president of the popular parenting website Momcentral.com, offers smart solutions on how to keep chaos at bay.

Parenting disagreements? Threatening the well being of our marriages and our kids? Yep, welcome to the brave new world of today's parenting: with shifting social roles for Mom and Dad, pressure to raise fabulous kids while supposedly being their best friends, and strong parenting preferences by both Mom and Dad.

When most of us were growing up, Mom and Dad held more traditional roles, with Mom typically a housewife and Dad the breadwinner and stern disciplinarian. "Just wait until your Father gets home!" my brother and I got warned on a daily basis. Not so today, as Moms announce in the kitchen, "I do not care what your Dad said! There is no macaroni and cheese for breakfast in this house or TV after dinner. Period." For men and women alike with children, parenting has emerged as a primary focus. And along with the laser-like focus on children has emerged a virtual cauldron of boiling and brewing parental disagreements.

Trend spotting helps here to see the shifting in parenting styles. Long gone are those June Cleaver days when women considered themselves first and foremost as "housewives." Moms are focusing on being "stay-at-home Moms," we have entered the workplace in record numbers, and Dads have become the most involved parents in history. Plus, ask most Moms and Dad and they will announce how they want to be "best friends" with their children. So much for children being seen and not heard!

When Mom and Dad disagree over even minor parenting issues: the repercussions echo throughout the whole next day and the whole family. For instance if Dad lets the kids stay up way past bedtime, you have Mom at home with an entire day of dealing with a grumpy, tired, unhappy kid or one who resents your more stringent rules. Or it's the working Moms who get reports from a babysitter, the preschool, the teachers, and the after-school about a tired child who is acting out. As parents, Moms rely on having a united front.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

And in the fabulous world of family law entertainment news...

NASSAU, Bahamas (AP) — A Bahamian judge ordered a DNA test Tuesday on Anna Nicole Smith's infant daughter to identify the girl's father, an attorney for the baby's grandmother said, the latest chapter in a bitter custody feud sparked by the pinup's death last month.

Larry Birkhead, an ex-boyfriend of the former Playboy playmate who asked the judge to order the test on 6-month-old Dannielynn, pumped his fists in the air and jumped up and down as he emerged from the private court hearing.

"It's been a good day in court for me," he told reporters. Asked if he thought he would see the girl soon, he only smiled and winked.

Deborah Rose, an attorney for Smith's mother Virgie Arthur, confirmed that the judge ordered the test but she and others who attended the hearing declined to describe the proceedings.

Authorities left the building after the hearing and could not immediately be reached for comment.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

Modifying Child Support Order Requires Calculation Of Presumed Amount
On motion to modify child support, Circuit Court must determine presumed amount, and determine whether to accept or reject it, even when no party requested findings of fact.
Laura M. Klingseisen, n/k/a Laura Al-Amery, Petitioner/Appellant, v. Robert E. Klingseisen, Respondent. Missouri Court of Appeals Eastern District

No Continuing Change Needed To Modify Custody
Statutes do not require a continuing change for modification of custody, only for modification of child support. Despite Circuit Court's use of incorrect basis to deny motion to modify, Court of Appeals affirms because Circuit Court found that Child's best interests also favored denial. Awarding attorney fees based only on the parties' incomes, without regard to their expenses, is an abuse of discretion.
Misti L. Kinner, Formerly Isenbletter, Petitioner-Appellant/Cross-Respondent, v. Michael L. Scott, Respondent-RespondentCross-Appellant. Missouri Court of Appeals Southern District

Order To Pay For Private School Not Supported In Record
To order a Parent to pay tuition for a private or parochial school, record must have evidence of Child's educational needs or parents' agreement. Court of Appeals affirms award of attorney fees to party who prevailed on issues in motion to modify, but such an award does not constitute maintenance.
Kenneth D. Goins, Appellant, v. Lori D. Goins, Respondent. Missouri Court of Appeals Eastern District

Paternity Determination Between Twins Affirmed
Blood tests showed that paternity by either twin was equally likely. Circuit Court was entitled to rely on other evidence, including testimony of Mother, to determine paternity. Affirmed.
State of Missouri, ex rel., Department of Social Services, Division of Child Support Enforcement, and Holly Marie Adams, Petitioners/Respondents v. Raymon Miller, Respondent/Appellant and Richard Miller, Respondent. Missouri Court of Appeals Southern District

Source for Post:  Missouri Bar

• Email This
• Print
• Comments
• Trackbacks

The following post is information for clients who have paternity or custody actions pending in Eastern or Western Jackson county Missouri about the PTLA program which is required by the Court.

PTLA (Parenting Together Living Apart) is a parent educational program designed to teach parents who have never been married to each other but have children together the value of co-parenting their child(ren) cooperatively so as to maximize the healthy emotional development of their child(ren). This program is most effective when utilized prior to mediation. There is no cost for attendance.

Program Objectives:

• Parents will have a better understanding of the importance of co-parenting.
• Parents will practice positive communication skills.
• Parents will learn about child development states in parental conflict.
• Parents will increase positive parenting skills to work with each other cooperatively.

PTLA Curriculum:

• Parental responsibilities
• Children’s basic needs
• Why children need both parents
• Emotional reactions to the lost relationship
• Children’s developmental states in parental conflict
• Paternity establishment
• Positive co-parenting
• Effective communication skills
• Responsive discipline
• Parenting time suggestions

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

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

• Email This
• Print
• Comments
• Trackbacks

FORT LAUDERDALE, Fla. (AP) — The melodramatic legal fallout from Anna Nicole Smith's death shifted Friday from where to bury the former Playboy Playmate to who gets custody of her baby, who could inherit millions.

Attorneys for Larry Birkhead, the photographer who claims to have fathered 5-month-old Dannielynn, planned to ask a Florida family court judge to enforce a California court's order that the infant's DNA be tested to prove paternity.

Smith's boyfriend, Howard K. Stern, and Frederic von Anhalt, the husband of actress Zsa Zsa Gabor, also claim to be the father. Stern is listed as Dannielynn's father on the birth certificate.

On Thursday, a sometimes blubbering judge gave Richard Milstein, the court-appointed lawyer for Dannielynn, the power to resolve a dispute between Stern and Virgie Arthur, Smith's estranged mother, over where to bury Smith.

Milstein said she would be buried in the Bahamas next to her son, but gave no time frame.

In a bizarre, rambling statement from the bench, Circuit Judge Larry Seidlin choked up frequently but made it clear what he felt should be done.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

LOS ANGELES (AP) — Britney Spears' decision to check into rehab could help her in court as she to tries to retain custody of her two young children with estranged husband Kevin Federline, according to family law attorneys. That is, of course, if she actually completes a rehab program.

When Spears checked into Promises Malibu drug and alcohol rehabilitation center Thursday, it was said to be the third time in a week she has checked into a rehab center.

"It actually may reflect well on her that she's now gone back, if she stays and sees herself through the program," said Jason Adess, a family law attorney in Chicago. "That way she can present to the court that she has an issue, she has acknowledged the issue, she has gotten help and now she is able to resume primary custody of the children."

Spears' manager, Larry Rudolph, confirmed in an e-mail to The Associated Press on Thursday that Spears is in the Malibu center. He provided no further details.

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

LOS ANGELES (AP) — As Britney Spears was checking out of rehab for the second time in a week on Wednesday, her estranged husband was making plans to go to court amid a custody dispute over their two children.

Kevin Federline and his lawyer were scheduled to appear at a downtown courthouse Thursday for an emergency hearing, Superior Court spokesman Allan Parachini told The Associated Press. It was not known what issue Federline planned to raise.

Federline and Spears have two sons, 5-month-old Jayden James and 17-month-old Sean Preston.

"Our best information is he will be here; she won't," said Parachini. "But anything is possible."

Federline filed papers seeking spousal support and sole custody of the children after Spears sought to end their two-year marriage last November. A temporary court order issued Feb. 1 granted the couple joint custody until the end of this month.

article published by www.courttv.com

Parachini said Federline's lawyer would try to persuade a Superior Court commissioner that the matter is urgent enough to be handled on an expedited basis.

• Email This
• Print
• Comments
• Trackbacks

Mother's inability to discipline children appropriately, or protect them from Father's abuse, supported a termination of her parental rights under provisions related to abuse, neglect, and failure to rectify. Her repeat conduct after parenting classes was not a single incident, but was one of many and showed a failure to rectify. Evidence, including Children's improvement after separation from parents, supported finding that termination of parental rights was in Children's best interest.
In the Interest of F.C., M.C., and D.C., P.C.(S). Appellant, v. Missouri Department of Social Services, Children's Division, Respondent. Missouri Court of Appeals Southern District

Source for Post:  The Missouri Bar

• Email This
• Print
• Comments
• Trackbacks

 
Father's continuing life of professional crime, romantic relationship with a 14-year-old, and uses of pornography supported Juvenile Court's judgment that Father had failed to rectify conditions and that termination of Father's rights was in Children's best interest.
In the Interest of K.A.W. and K.L.W. Children under Seventeen Years of Age. Greene County Juvenile Office, Petitioner/Respondent v. P.A.W., Respondent/Appellant. Missouri Court of Appeals Southern District

Source for Post The Missouri Bar

• Email This
• Print
• Comments
• Trackbacks

Circuit Court did not err in denying Father's unwritten motion for continuance that was unsupported by affidavit or Mother's consent. Father did not show that Circuit Court failed to divide property according to judgment because he offered no evidence of major asset. Father failed to show that Circuit awarded him any debt for which Mother had any liability. Circuit Court's failure to detail Father's visitation rights as provided by statute requires remand.
Donneta Kay Kamler, Respondent v. Steven Mel Kamler, Appellant. Missouri Court of Appeals Eastern District

Source for Post The Missouri Bar

• Email This
• Print
• Comments
• Trackbacks

Presumed correct support amount even if daycare paid separately. John Mitalovich, Appellant, v. Tammy Lee Toomey, Respondent, No. 87755 (Mo. App. E.D., November 21, 2006, Ahrens, P.J.
  This summary is strictly for the purpose of noting the proper findings in a judgment as to the presumed correct support amount for child support when work-related child care costs are being paid separately by the parties.
  Form 14 provides for allocation of the reasonable work-related child care costs of the custodial parent. Harrison v. Harrison, 871 S.W.2d 644 (Mo. App. 1994). In the present case, the trial court was required to either allocate that child care cost in conformity with the Form 14, or make a finding that the award of such an amount was unjust or inappropriate. Id. The trial court found that mother required daycare for the minor child, and there was evidence in the record to support this testimony. Therefore, the court was required to include that cost in the Form 14 calculation. (Emphasis added).

 

• Email This
• Print
• Comments
• Trackbacks

Record supports Trial Court's order for anger management, and order is sufficiently specific to enforce. Trial Court did not stop Father from participating during in-chambers interview, and Child's statements in that procedure support custody order. Trial Court erred by issuing parenting plan that failed to address custody on Child's birthday and school holidays, requiring remand.   The entire opinion can be read at  In re the Marriage of: Patrick Lynn Murphey and Angelic Marie Murphey. Patrick Lynn Murphey, Petitioner/Appellant v. Angelic Marie Murphey, Respondent/Respondent.

• Email This
• Print
• Comments
• Trackbacks

I found the following post on the divorcesupport.com blog, and it caught my attention because I have many cases where missing spuose/parent is in issue.  The post appears below, with a few comments following.

We hear from many spouses who are trying to get a divorce, but they do not no the whereabouts of their spouse. This is a common situation, especially if you have been separated for quite some time. The process for divorcing a missing spouse is somewhat more complicated and lengthy do to extra procedures one must follow. This type of divorce is commonly referred to as a “Divorce by Publication”.

A “Divorce by Publication” requires a spouse to prove to the court that he or she has made a legitimate attempt to local his or her husband or wife. In order to fulfill the requirements of the court a public legal notice announcing the filing of the divorce must be placed in the newspaper for a specified period of time (typically 30 days).

We suggest going through the following steps to try to locate your spouse. Who knows you may already be divorced.

1. Contact Friends and Family.
2. Call Information.
3. Contact Past Employers.
4. Do a Search Report at ussearch.com

If you do find your spouse, you can have him or her professionally served with your divorce paperwork. This will almost always speed up the process. What ever you do, do not intentionally avoid finding your spouse.

Believe it or not, this is not uncommon at all, regardless of the type of case.  The above is great advice, but in Missouri, it is not just as easy as just publishing notice and calling it a day.  Although service by publication is available in Missouri, a court can not do anything other than dissolve the marriage.  The court cannot divide marital property, set up custody or visitation, or award child support.  This means that in order to proceed in most cases, there must be personal service, and you must find the spouse/other party to obtain it.  I have had, and currently have, cases where people have spent thousands of dollars on investigators, process servers, searches, skip traces, etc. to try to find a missing spouse or  parent. This can add a significant amount of time and cost to your case, and if children are involved, can even negatively affect the entire outcome of the case.  For example, the court could lose jurisdiction over the children if the case is on file and too much time passes while trying to track down a spouse.  This creates a tremendous strategic disadvantage.

The lesson of the day here is that, particularly if kids are involved, the whereabouts of the other spouse (and kids)  should be known at all times.  The above points are great starts for trying to locate them, but it should never come to that.  Time, money, family, and future are all at stake to be lost.  However, If it is just a case where spouses have been separated for a long period of time and there are no kids, service by publication will usually suffice.

• Email This
• Print
• Comments
• Trackbacks

The Following practical tips are offered by New York Times/about.com author Jennifer Wolf on how to get through your first year as a single parent.

1. Develop a Support Network
   This is absolutely crucial. You need to know who you can depend on right now. Most likely, this network includes your immediate family and friends, but think about other people in your life who might also help you. Making an actual list of who these people are can help remind you that you're not alone. In addition, consider joining a formal support group for single parents.
2. Ask for Help
   This is one of the most difficult things to do. But there are people around you who would love to help! Keep in mind that allowing others to help you is a gift to yourself and to the person assisting you. Sharing in one another’s lives during difficult times affirms our human connection and brings a sense of purpose to everyday living.
3. Schedule Time to be Alone
   Time is a very powerful tool. It will bring you healing, hope, and perspective. Right now, it’s important that you create pockets of time in your life when you can just be. Time when you’re not accountable for completing a task or responding to questions. Time to sit, to think, to ponder.
4. Think Outside the Box
   If finding time to yourself sounds impossible, consider some creative solutions, like swapping babysitting time with a neighbor or waking up a half-hour before the rest of your household. The time that you give yourself is precious, and it will be fruitful in helping you to establish reserves of inner strength.
5. Be Present with Your Kids
   When you're with your children, make an effort to be emotionally present with them. It would be easy to retreat into your heart right now, but this is a time when your children truly need you more than ever. Simple activities like playing a board game or taking a walk together can go along way toward communicating the message that life will go on and they will, indeed, be okay.
6. Get the Facts About Your Situation
   You might be tempted to make quick decisions right now about where to live and how to handle your finances. However, ignorance in this area can be extremely dangerous, and so can making rash, uninformed decisions. For now, take the time to find out where you stand financially. Gather the necessary papers in order so that when you are emotionally ready to make changes, you'll be prepared and able to make informed decisions.
7. Grieve
   Expressing your feelings is important to your overall health. Consider writing in a journal or scheduling a regular "date" with a friend to vent, cry, and grieve. Single parents are born of many different situations. Whether you've experienced the loss of a spouse, the end of a marriage, or an adjustment to the dream you once held for your life, it is important to grieve and process the loss before moving on.
8. Pay Attention to your Physical Health
   This may be a time when you are feeling especially worn down and drained. Combat that by making the effort to eat healthy foods and choose energizing ways to fuel your body. Instead of relying on extra caffeine, try taking a walk at lunchtime. Additionally, getting adequate rest is crucial to your healing and ability to cope. Forgo the temptation to sit in front of the TV. Instead, read a book and retire early.
9. Identify What Gives You Strength
   In the past, how have you handled challenging times in your life? What most energizes you and reminds you that you possess the strength needed to meet the current challenge? Focus on what has worked for you in the past.
10. Let Go of What Isn't Working
    Likewise, let go of what has not worked for you. As you move through this first year, reflect on the habits and choices that have not served you well, and decide to change them. In addition, if there are things from the past that you cannot change, let go of unhealthy guilt and remorse.
11. Focus on the Positive
    This is a time of new growth in your life. Take the time to think about the things that are going well for you. Having a positive attitude - even in the midst of extreme circumstances - can empower you to move ahead and provide your children with a tangible example of the coping strategies you want them to adopt.

Source for Post: singleparents.about.com

• Email This
• Print
• Comments
• Trackbacks

The following are some tips for communicating with with your child during and after divorce.  Thanks to the folks at  divorcesupport.com for this great information

Remember to be as open as possible, which will reinforce and even enhance your trust for one another. Many parents find that they do communicate better during divorce and/or separation because it is the first time in a while that they were forced to have meaningful conversations. This is not necessarily the reason in your case, but divorce and/or separation can create a stronger parent-child bond. Communicating effectively with your child actually gives him or her the sense of greater responsibility and respect. In conversation, be sure to listen and allow your child to express his or her own opinions.

Strategies and Tactics to Improve or Continue Good Communication:

- Pick a place where you both feel comfortable.

- Never criticize the other parent in conversation. This includes all body gestures, like the rolling of the eyes or shrugging.

- Stay calm when things get a little heated and avoid quick irrational responses.

- Never use threats or ultimatums.

- Stay on the topic of conversation. If another issue comes up, write it down and discuss it at a later time.

- Look, don’t just listen, for your response. Facial Expressions are as telling as words.

- Do not interrupt your child.

- Do not talk down to your child as if he or she does not understand.

- Avoid saying, “If you were older you would know what I am talking about”, because your child will interpret this as your excuse for being wrong.

• Email This
• Print
• Comments
• Trackbacks

Divorce is stressful for parents and children alike. Although children's emotional reactions usually depend on their age at the time of the divorce, many children experience feelings of sadness, anger, and anxiety - and it's not uncommon for these feelings to be expressed in their behavior. Often, the child's emotional reaction can be quite different than the parent's, and it's important to understand these differences. For example, a parent may feel a sense of relief that a difficult period is coming to some resolution, whereas the child may feel a sense of loss.

Fortunately, there are things you can do to help your child during a divorce. By minimizing the stress the situation creates and responding openly and honestly to your child's concerns, you can help your child through this difficult time.

As soon as you're certain of your plans, talk to your child about your decision to divorce. Although there's no easy way to break the news, both parents should be present when a child is told, and feelings of anger, guilt, or blame should be left out of the conversation. At best, this is a difficult message to communicate, but if you handle it sensitively, you can help make it less painful for your child.

Although the discussion about divorce should be tailored to your child's age and development, all children should receive the same basic message: "Mommy and Daddy used to love each other and were happy, but now we're not happy and have decided we'd be happier apart. What happened occurred between us, but we will always be your parents and we will always be there to love and take care of you."

It's important to emphasize that your child is in no way to blame for the breakup and that the unhappiness is not related to him or her. Children tend to blame themselves for the failure of their parents' marriages, and they need to be reminded frequently that it is not their fault. Finally, your child may question whether your love for him or her is temporary (because it was with your spouse); reassure your child that even though you're getting a divorce, you love him or her permanently and unconditionally.

When it comes to answering questions about your divorce, it's important to give kids enough information so that they're prepared for the upcoming changes in their lives but not so much that it frightens them. Try to keep your feelings neutral and answer your child's questions in an age-appropriate way and as truthfully as possible. Remember that kids don't need to know all the details; they just need to know enough to understand clearly that although divorce means separating from a spouse, it doesn't mean parents are divorcing their kids.

Not all children react the same way when told their parents are divorcing. Some ask questions, some cry, and some have no initial response at all. For kids who seem upset when you break the news, it's important for parents to let them know that they recognize and care about their feelings and to reassure them that it's OK to cry.

For example, you might say, "I know this is upsetting for you, and I can understand why," or "We both love you and are so sorry that our problems are causing you to feel this way." If your child doesn't have an emotional reaction right away, let him or her know that there will be other times to talk.

Most children are concerned with how the divorce will affect them:

• Who will I live with?
• Will I move?
• Where will Mommy live or where will Daddy live?
• Will I go to a new school?
• Will I still get to see my friends?
• Can I still go to camp this summer?

Be honest when addressing your child's concerns and remind him or her that the family will get through this, even though it may take some time.

Source for Post: www.kidshealth.org

• Email This
• Print
• Comments
• Trackbacks

In its simplest form, a deposition is the giving of oral testimony under oath before trial.  Depositions are conducted in front of a court reporter and will assist your attorney in the preparation for trial.  The use of oral depositions is a standard procedure in family law cases for discovering relevant and material facts, determining the strategy of the case, and searching the concience of the person being deposed (called the deponent).

It is very important to take the deposition seriously.  As a deponent, the attorney taking the deposition is searching for ways to discredit the deponent, obtain information, and obtain admissions.  The defending attorney is seeking to avoid harmful admissions, present the facts in the best light possible, and to protect the deponent's creditability.

You should remember that the deposition is usually the first chance the opposing attorney has a chance to see you, so you must make a good impression, and treat the deposition as if you were appearing in court.  You should do the following:

1.  Be clean and wear neat, conservative clothing

2. Be respectful

3.  Tell the truth to all questions asked

 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks (1)