Category Archives: custody

Factors for Child Custody

How does a court decide custody? The eight factors set forth in 452.375, RSMo.:

(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;

(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 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 the child’s home, school, and community;

(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence as defined in section 455.010 has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;

(7) The intention of either parent to relocate the principal residence of the child; and

(8) The wishes of a child as to the child’s custodian. The fact that a parent sends his or her child or children to a home school, as defined in section 167.031, shall not be the sole factor that a court considers in determining custody of such child or children.

Can I file my dissolution and paternity action together in one case?

It can mean the difference between a single $170 filing fee for one case or $340 or more for multiple cases. Some judges will let litigants do this and save a filing fee, but Court Operating Rule 4.05.3 controls.

Dissolutions and paternity actions shall be filed separately. A separate case number shall be assigned for each dissolution and each paternity action filed and shall be related in the automated case management system for scheduling and other processing.

— COR 4.05.3

Nothing prevents the consolidation of cases once filed, so only one trial is usually necessary after the cases are consolidated.

 

Missouri Court Decides Frozen Embryos Not Children

In a 47-page opinion, the Missouri Court of Appeals, Eastern District decided frozen embryos are not children, but marital property of a special character. A copy of the opinion in McQueen v. Gadberry is here.

Child Abuse: Mandated Reporters

Some of us are mandated reporters, including all sorts of professionals responsible for the care of children. Sometimes mandated reporters need guidelines. The Children’s Division of the Missouri Department of Social Services publishes a useful handbook, Guidelines for Mandated Reporters of Child Abuse and Neglect.

If You Practice Family Law in Missouri, You Need to Read This Case…

Eastern District held a “Siegenthaler schedule” (every other weekend, one night per week, and six weeks in summer with alternating holidays) is SOLE PHYSICAL CUSTODY.

Morgan v. Morgan, No. 103426 (Mo.App. E.D., Aug. 30, 2016).

What’s in a Parenting Plan?

Under Section 452.310, RSMo., a parenting plan in Missouri must meet certain requirements.

“The proposed parenting plan shall set forth the arrangements that the party believes to be in the best interest of the minor children and shall include but not be limited to:

(1) A specific written schedule detailing the custody, visitation and residential time for each child with each party including:

(a) Major holidays stating which holidays a party has each year;

(b) School holidays for school-age children;

(c) The child’s birthday, Mother’s Day and Father’s Day;

(d) Weekday and weekend schedules and for school-age children how the winter, spring, summer and other vacations from school will be spent;

(e) The times and places for transfer of the child between the parties in connection with the residential schedule;

(f) A plan for sharing transportation duties associated with the residential schedule;

(g) Appropriate times for telephone access;

(h) Suggested procedures for notifying the other party when a party requests a temporary variation from the residential schedule;

(i) Any suggested restrictions or limitations on access to a party and the reasons such restrictions are requested;

(2) A specific written plan regarding legal custody which details how the decision-making rights and responsibilities will be shared between the parties including the following:

(a) Educational decisions and methods of communicating information from the school to both parties;

(b) Medical, dental and health care decisions including how health care providers will be selected and a method of communicating medical conditions of the child and how emergency care will be handled;

(c) Extracurricular activities, including a method for determining which activities the child will participate in when those activities involve time during which each party is the custodian;

(d) Child care providers, including how such providers will be selected;

(e) Communication procedures including access to telephone numbers as appropriate;

(f) A dispute resolution procedure for those matters on which the parties disagree or in interpreting the parenting plan;

(g) If a party suggests no shared decision-making, a statement of the reasons for such a request;

(3) How the expenses of the child, including child care, educational and extraordinary expenses as defined in the child support guidelines established by the supreme court, will be paid including:

(a) The suggested amount of child support to be paid by each party;

(b) The party who will maintain or provide health insurance for the child and how the medical, dental, vision, psychological and other health care expenses of the child not paid by insurance will be paid by the parties;

(c) The payment of educational expenses, if any;

(d) The payment of extraordinary expenses of the child, if any;

(e) Child care expenses, if any;

(f) Transportation expenses, if any.”

Greene County Domestic Relations Unit

The Family Court Division of the Circuit Court of Greene County maintains a Domestic Relations Unit. The Domestic Relations Unit publishes a quarterly newsletter. The July 2016 edition is here. Domestic relations officers sometimes sit in the courtroom to offer services related to the proceedings. Domestic relations officers sometimes meet with the attorneys to gather information to brief the commissioner on the status of the case before the attorneys brief the commissioner, in order to minimize the time in the courtroom for each case.

 

Recording Phone Calls

I often get asked whether it is legal to record phone calls and occasionally a client will come in with a great volume of recordings, expecting great results. There are some apps for smartphones that can automatically record calls. It’s usually a lousy idea.

  1. It’s illegal in the United States to record calls to which you are not a party (unless you are the NSA or law enforcement with a court order). That means if you are a parent and your child is having a telephone conversation with your co-parent and you are not in the room, it is a federal crime to record the call.
  2. It is legal in Missouri to record a call to which you are a party, provided the person on the other end of the call is also in a state where it is legal to record a call to which you are a party. If the person on the other end of the call is in a state in which it is illegal for either party to record a call, then it is potentially illegal to record the call without the other party’s consent.
  3. It is always legal to record a call with the consent of all parties to the call.
  4. It is unethical for attorneys to advise clients to secretly record calls, particularly to illegally record calls or to record calls to represented parties.
  5. It is unethical for attorneys to secretly record calls as that is a deceptive practice.
  6. Because it is deceptive for attorneys to secretly record calls, it is conceivable that a party who secretly records calls could have their credibility impeached at trial for engaging in the deceptive practice of secretly recording calls.

 

In Your Child’s Best Interest

The Missouri Office of State Courts Administrator publishes a guide for parents involved in custody/divorce litigation. A free copy is available here.

Parent Handbook

Children’s Interests: An Annotated Bibliography, 2013-2015

A professor of mine when I was in law school, Nancy Levit, published this past fall in the Journal of the American Academy of Matrimonial Lawyers, “Children’s Interests: An Annotated Bibliography, 2013-2015,” a bibliography of law review articles. The bibliography itself reads something like a dictionary, but it is a useful tool to find resources for recent scholarly work on various topics relevant to family court practice.