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

In Missouri, there are guidelines that the Court must follow in making a child custody determination.  While all child custody determinations must be made in accordance with the best welfare and interests of the child, there is also a statutory and case law framework that guides the court in making the determination.  Note that when parties come to an agreement on custody, most courts take the position that the parents are in a better position to determine what is in their child's best interest, and will generally approve a joint parenting plan (although a joint parenting plan is advisory only, and the Court can make it's own determination in any case-albeit infrequently).  However, when the parents cannot agree on a parenting plan, the Court will decide the case based on the following:

Statutory Factors

1. Wishes of the parents and the proposed parenting plan submitted by the parents;
2. The needs of the child for a frequent, continuing, and meaningful relationship with both parents, and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
3. The interaction and interrelationship of the child with the parents, siblings, and any other person who may significantly affect the child's best interests'
4. Which parent is more likely to allow the child frequent, continuing, and meaningful contact with the other parent;
5. The child's adjustment to home, school, and community;
6. The mental and physical health of all individuals involved, including any history of abuse of any individuals involved;
7. The intention of either parent to relocate the principal residence of the child;
8. The wishes of the child as to the child's custodian.

Case law factors:

1. A good and stable home is the most important single consideration in addition to the statutory factors;
2. Stability, including frequent moves and intent to relocate;
3. Parenting skills and primary care;
4. Moral fitness as it relates to the children;
5. Adultery, sexual misconduct, and cohabitation (note however that these facts, in and of themselves, do not necessarily affect a custody decision.  There must be an effect on the child's interests)
6. Homosexuality (although, in and of itself, cannot be a basis for denying a parent custody);
7. Drug and alcohol use;
8. Attempted alienation of the child;
9. Religious beliefs;
10. Custodial preference of the child (although age of the child will affect the weight given, or if considered at all).
11. Any other relevant factors.

A child custody determination is based on evidence that is highly fact specific, and every case is different.  The above factors do not constitute a complete list, and any particular case can be decided on any one or multiple factors, depending on the situation.

• Email This
• Print
• Comments
• Trackbacks

Recent Case: SD v. MW Missouri Court of Appeals, Southern District - SD31296

Under section 455.010(13), "stalking" occurs when any person purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in

that person's situation to have been alarmed by the conduct. As used in this subdivision:

(a) "Alarm" means to cause fear of danger of physical harm;

(b) "Course of conduct" means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted

contact; and

(c) "Repeated" means two or more incidents evidencing a continuity of purpose.

"Stalking statutes should be construed narrowly enough to prevent serious abuse, but broadly enough to maximize victim protection." Towell v. Steger, 154 S.W.3d 471, 476 (Mo. App. S.D. 2005). Because harm can result from an abuse of the Adult Abuse Act, "trial courts must exercise great care to make certain that sufficient evidence exists to support all elements of the statute before entering a full order of protection." Overstreet v. Kixmiller, 120 S.W.3d 257, 259 (Mo. App. E.D. 2003).

Petitioner did not claim Appellant was following her. Petitioner did not offer any evidence showing that Appellant had ever engaged in any violent acts or that Petitioner had any other reason to believe Appellant was a violent person. Petitioner presented no evidence that Appellant said anything, made any gestures, or otherwise communicated any specific thing to Petitioner that would cause a reasonable person to believe he or she was in danger of physical harm from Appellant. As a result, no substantial evidence supported the existence of this necessary element of stalking. Appellant's point is granted.

The judgment was reversed, and the cause was remanded to the trial court which is directed to vacate the full order.

• Email This
• Print
• Comments
• Trackbacks

Recent Ruling: Termination of parental rights requires proof of statutory grounds by clear, convincing and cogent evidence, and proof of child’s best interest by a preponderance of the evidence. In an action to terminate parental rights, the statutory ground of abandonment means six pre-petition months of “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.” Neglect means continuous failure to provide. The juvenile officer alleged and proved that father had no contact with child for six months before amended petition. But evidence showed that father learned of child’s existence only two weeks before filing of amended petition and, on doing so, attempted to develop relationship. Such evidence is not substantial evidence of abandonment or neglect. 

Missouri Court of Appeals, Southern District - SD31470

The opinion can be read here.

Source for Post:  The Missouri Bar

• Email This
• Print
• Comments
• Trackbacks

The statute provides that, when considering whether to terminate parental rights, the circuit court must consider certain factors, as to which evidence was either absent; less than clear, cogent and convincing; or favored the parent.  Factors including whether mental condition will improve does not mean intelligence.  Whatever else may be appropriate, judgment terminating parental rights on such record is erroneous. 

The requirements that the court must consider are as follows:

(a) The terms of a social service plan entered into by the parent and the division and the extent to which the parties have made progress in complying with those terms;

(b) The success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child;

(c) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;

(d) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control over the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control[.]

 Proof of any one of these four factors (“relevant factors”) is sufficient to establish the trial court‟s authority to terminate a parent‟s rights.

Also, the following must be considered:

(1) The emotional ties to the birth parent;

(2) The extent to which the parent has maintained regular visitation or other contact with the child;

(3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so including the time that the child is in the custody of the division or other child-placing agency;

(4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time;

(5) The parent‟s disinterest in or lack of commitment to the child;

(6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights;

(7) Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm.

In this case, the court held that there was no clear and convincing evidence that the statutory factors were not met. The entire opinion 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