Missouri Family and Divorce Lawyer Blog

Give Me Your Comments - Poll

I have been in law for approximately 20 years now, most of which have been in family law as well as criminal law.  I am still amazed at how people react and do things when they go through a divorce.  Unfortunately, it seems the children are the ones that suffer because one or both parents are mad at the other.   I don not do much family law any more so I thought I would take some situations that my clients have been through and get ccomments from the public.   I want to know if my thinking as a lawyer is similar to the general public.  Please feel free to post your comments to the following situations.  Please refer to the number you are responding about.  Thank you in advance for your comments (and, please,  keep your comments clean or I will not be able to post them).

1.    Husband leaves mother and two children; does not provide any child support for about 3 months; wife and children move to different area of the state in order to have steady income (move made with husband's approval); approximately 3-4 months later husband leaves good paying job to take a job for his brother in another part of the state; this new job reduces husband's income by approximately $30,000.00 with no benefits, not even insurance;  Husband knows he has two children to provide insurance for and to provide child support but takes job aanyway;  Husband tells wife he is going to stop providing insurance on the children so she provides it; husband reduces the amount of child support he pays for the two children to $150.00 per month (no court order yet);  husband may or may not provide one/half the cost of the children's medical bills or other large expenses (he picks and chooses what he wants to pay).  Is the husband thinking about the children or just trying to get back at wife?  Should husband be allowed to reduce his income so significantly?  Would your opinion change if you knew husband had another child by previous marriage that he paid $300 per month for child support, health insurance costs and all medical bills, and also provided money towards clothing, school expenses, etc.?  Husband stopped paying these items when child turned about 24 years old, graduated from a masters program, and took job in St. Louis.  The younger children are now 16 and 10.  Make a difference in your opinion?

2.    Couple are divorcing; husband blaming wife for marriage dissolving even though he is the one who walked out;  husband accuses wife of cheating on him but has no proof; wife denies cheating; previously during the marriage, after 3 years of husband not doing anything about his impotency (other than telling wife it is her fault), and husband continually  taking his anger out on one child, wife tells husband she wants divorce; husband talks her into staying together and trying to make it work for the sake of the children, husband promises he will get help for his problems; wife agrees to stay in marriage and work on things; husband manages to treat the one child better for a while but then goes back to the same treatment as before;  things do not get better between husband and wife; in fact, things get worse and there is a lot of fighting between the two; child starts asking why her dad dislikes her so much.  Should the couple have stayed together for the sake of the children?  Is the husband's impotency (and not doing anything about it) grounds for wife to want a divorce?   (Gentlemen, please do not take offense at this question.  I understand that sometimes there are sexual problems in a marriage which can occur on either side.  What I'm questioning is the decision not to work on the problem and see if there is something that could help the situation.)  Should the wife have left when she first asked for a divorce? 

3.    Parents of child never married and now separated; child is a girl; girl tells mother that dad was doing some things to her private area; mother questions dad and he denies anything inappropriate happened; mother takes child to a counselor who says that she believes child has had something inappropriate happen to her by dad; mother tries to stop the visitation through the court; after a while supervised visits are scheduled with dad's parents supervising; mother doesn't believe dad's parents are protecting the child and wants the visits to stop; in the mother's eyes the court system isn't working to protect her child.  Question - should mother or someone close to her and the child take the matter into their own hands to stop the abuse as they perceive it?  If you thought someone was sexually abusing your child/grandchild and the court wasn't stopping the visits, what would you do?

4.    Divorced parents have joint custody of child; child comes back from staying at mom's with bruises on body on several occasions; child says mom did it; mom denies hitting child; police investigate and end up charging mom with the abuse but later the prosecuting attorney's office  defers prosecution under a plea agreement when she agrees to get help and promises that it wouldn't happen again (never admits she did anything wrong); bruises still appear on child when he comes back from mom's house; child starts displaying signs of sexual abuse - wetting his pants after potty training, soiling the bed and playing in his feces; displaying inappropriate touching and knowledge; says his private area (behind) hurts, etc.  Father goes to court to try to stop the unsupervised visits; court allows her mother to supervise; father learns that the supervision consists of mother and/or step-dad supervising the visits by allowing the child's mother to be in other parts of the house or outside with the child and not under direct sight of those supposed to be supervising; child again comes back with bruises and states that he was with the person(s) who sexually abused him and whom the court ordered the child not to be around.  What would you do in the father's situation?  Could you believe a mother would physically abuse her own child?

5.    A parent is diagnosed with cancer of the lung, liver and brain; parent doesn't recognize some of her children due to brain swelling; parent placed in the hospital for care and is not able to pay bills; one child takes over parent's accounts to pay bills, etc. and learns that there is several thousand dollars missing from the accounts; that child asks another child if he knew what had happened to the money and the other child denies knowledge;  when parent capable of talking and knowing what is going on, child asks parent what happened to the money and is told that the other child has it in an account with parent;  other child gets angry at the one child because of questioning the parent about the money; the one child ends up taking 24 hour care of parent;  the one child has just started a business and cannot keep taking care of parent without working or taking some of parent's money to help pay bills; the one child asks another sibling what to do - put parent in nursing home or use some of the money to pay the bills and pay the money back when able to work again; sibling says to use the money and keep parent at home with child;  during the final period of time when parent is capable of thought and taking care of some things for herself, the one child tells parent of the money and the parent says not to pay back since cared for parent; the other child (the one with the account) becomes mad and says the one child stole the money; unbeknownst to siblings the other child has parent sign documents giving him power of attorney over parent (this was done at a time when parent was not in her right mind - trying to pick things off the ceiling and no notary was present for the signature); siblings do not know about the power of attorney until parent put into the hospital for the last time and the one child starts questioning the signature supposed to be the parent's on some of the forms;  siblings start taking sides; the other child decides to bring parent home from the hospital to die at parent's house;  parent in a lot of pain from the cancer and the other child is instructed on what needs to be done to keep parent in peace;  due to fighting within the family the one child stays away from the parent's house and the other child;  after a couple of days the other child and another sibling come to the one child's house to beg for the one child to go see the parent (parent has been calling out for the one child);  the one child agrees to go under certain conditions such as no fighting, etc;  upon seeing parent learns that the other child and sibling have not given parent a bath or cleaned parent up from bowel movements, etc. and they have not given parent any pain medicine (said parent didn't want it - parent wasn't capable of making any decisions at that time); the one child and another sibling had to ground up pain medicine and put in dropper and force open parent's mouth to get the pain medicine in; parent in so much pain her jaws were clenched shut;  the visiting nurse for hospice called to bring pain medicine to be placed in parent's shunt; the other child refuses to push the button that will allow morphine to go into the shunt; the one child has to stay there and take turns with other sibling to do this and keep parent cleaned;  after 1 1/2 days the parent dies; fighting still within the family;  about 3 months after parent dies, the other child finishes remodeling his house (which had not been anywhere near completion before parent sick because other child did not have the money).  Question - what would you have done in this situation - would you have sued the other child for the money that was contained in the account that other child lied about, would you have sued the other child for obtaining the powers of attorney over the parent at a time when there was no way the parent had the capacity to sign, would you have sued the notary public who stated that the parent signed the powers of attorney before her (turned out to be other child's wife's sister who worked for a law firm), would you have sued the one child for the money used to pay bills while the one child cared for the parent, would you have sued both?

Let me know what you think about the above situations.  I'm interested in hearing your comments to see if your opinions go along with the results that were or were not obtained. 

Move to New Area of Missouri

These past few months have been interesting for me and my children.   We have moved to the mid-Missouri area that includes the beautiful Lake of the Ozarks.  This area includes Camdenton, Eldon,  Laurie, Lake Ozark, Osage Beach and Versailles.  For my children it means a new school and new friends.  Thankfully they have adjusted well and have made new friends.  For me, it means giving up my solo practice and joining a small firm that has five other attorneys.  I joined Curran & Sickal the first of the year and have been busy ever since.  Although the firm is a general practice firm and includes family law, I will, for the most part,  be getting out of the family law area and moving more into business and real estate.  Other attorneys in the office will be doing family law.  However, I still plan on keeping abreast of the law and changes that occur  and will continue posting on the blog.   After almost 18 years of practicing in family law, I can't see myself giving it up totally.   We are in the process of moving my blogs to a new site under the Curran & Sickal name and I will post the new sites here when completed. 

To those of you who have been patient with my not posting due to the changes taking place in my personal life, thank you.  I hope you will continue to find this blog helpful. 

Child Support - coming to MO

In Missouri our child support continues past the age of 18 years and ends at the end of the child's graduation from college or the age of 21, whichever comes first.  In special circumstances such as a special needs child the support can continue past 21.  Other states, however, end the support when the child turns 18 years of age.  So which law prevails when a custodial parent moves into Missouri with a child support order from a state that terminates the support at age 18?  Recently the Easter District of the Missouri Court of Appeals ruled that Missouri law prevails.  In Burke v. Hutto, decided November 20, 2007, the custodial parent (mother) moved into Missouri from California.  In 1991 a California court dissolved the parents' marriage and ordered the father to pay child support, which was later increased in a modification action.  Thereafter mother moved to Missouri and the father moved to Georgia.  In 1994 mother filed  in Missouri a motion to modify the child support amount and to have the father pay fifty percent of the child's college expenses.  The trial court granted the motion to modify.  When the child turned 19 years of age the father filed an affidavit for termination of the child support pursuant to California law that emancipated the child upon the 19th birth date.  The trial court terminated the child support upon its finding that the support issue was controlled by the Uniform Reciprocal Enforcement of Support Law (URESA).  Mother appealed. 

The Appellate Court found that the father had waived any defense of lack of personal jurisdiction in the modification action filed in Missouri due to the fact that  father did nothing to impeach the modification judgment at the time it was sought to be enforced when a wage withholding was entered nor when he sought to terminate the child support.    With this waiver Missouri law applied to the the modification action and Missouri required, at that time, that child support continue until the child reaches the age of 22 or completes a post-secondary schooling, whichever comes first. (This is now changed to the age of 21).  In his argument the father stated that through URESA Georgia law should be applied because that is where he has lived since 1994 and Georgia terminates child support at the age of 18 years.  The Appellate Court ruled that URESA does not apply in this case because the mother did not initiate the action to enforce the child support order in Georgia but that father initiated the action in Missouri to terminate his child support obligation, and even if it did apply, Missouri controls.  In citing Lewis v. Roskin, 895 SW2d 190 (Mo. App. 1995), the court ruled that "Missouri's interest in protecting the welfare of its resident child outweighed the interest of the issuing state  . . .  in protecting its sovereignty."  The trial court's termination of the child support order was reversed and the trial court was ordered to reinstate the previous child support order issued by Missouri.

The conclusion - if the custodial parent moves to Missouri and seeks a modification of a child support order and the personal jurisdiction is not challenged and won, Missouri law will prevail on child support orders and the parent paying support could end up paying child support until the child reaches the age of 21 years or graduates from college, whichever comes first, regardless of the laws of the  state where the initial divorce was granted.

New Perspective on Representing Clients

I have represented divorce clients for almost 18 years now.  I thought I always had compassion and understanding about  my clients' needs, and I did.  I just didn't understand it exactly from their viewpoint or perspective.  Now I do.  I am in the process of getting divorced myself and let me say, it has opened my eyes on a lot of the emotional issues involving a divorce.    I have two children and I am trying to keep their best interests in mind with dealing with my soon to be ex.  It isn't always easy and I find myself biting back words, especially if I know the children are close by.  Dealing with him not wanting to pay child support even though I have the children the majority of the time, paying joint bills, deciding where to live,  when each will have the children, etc.   The list goes on.  There are so many issues that I disagree with him on but have to remain calm for the children's sake.  They are the most important part of this divorce and it is hard enough on them without us adding to their worries.  So, to all of you out there that have went through a divorce and managed to keep the children out of the battles - I salute you.  You have my utmost respect.  I know that when I represent a divorce client in the future, I will have more insight and respect for what the client is going through and, hopefully, my personal experience will make me a more compassionate attorney and more able to  guide them through the emotional process as well as the legal process.

Identity Theft - Something to Think About

I have posted about identity theft on my business blog, which can be found at http://4stateladylawyer.typepad.com/joplin_mo_business_blog/.  This is not the usual credit card identity theft or fraud but medical identity and social security  number theft or fraud.  I suggest all parents read the post and the article listed therein as these two types of fraud are becoming more prevalent and they are involving children.  There are steps listed in the post which a person can do to try to protect himself/herself or a child.  I hope you find it helpful. 

SB62 - Castle Doctrine Bill Signed by Blunt

I have previously posted about Missouri's Senate Bill 62 - the "Castle Doctrine" bill that prevents persons who justifiably defend themselves in their home and vehicle from being criminally prosecuted or sued civilly.  To read more about this go to my criminal law blog at 'Castle Doctrine' Signed by Gov. Blunt.

Mistakes in Parenting Plans

Missouri requires that in each dissolution with children or in a modification, the parties are to file a parenting plan with the court.  The initial parenting plans set forth for the court what each party wants and, hopefully, believes is in the best interest of the children.  The parenting plan is to include, but not necessarily limited to: the specific type of legal and physical custody for each parent; the custodial or visitation time periods for each parent;  how the educational, extracurricular and health or medical costs are to be divided between the parents; each parent's child support sums; who is to provide the health or medical insurance for the children;  how disputes are to be resolved; relocation provisions; and whether or not local law enforcement officials are to assist in the enforcement of the parenting plan.

Dan Nunley of Oklahoma has made a list of mistakes that are common in parenting plans.  They are:

1.  The use of a non-specific parenting schedule (the "liberal and frequent visitation" clause). The phrase "liberal and frequent visitation" has no defined meaning in a court of law; the phrase means whatever the custodial parent says it means and is subject to change without notice.

2.  No provision for discussion regarding residential moves by the custodial parent. Move-away disputes are among the most hotly-contested post divorce issues brought to family court, and almost always an issue that a well-written parenting plan could help resolve (or prevent).

3.  No section covering access to and/or the sharing of medical and educational records. Although many States now have laws that address these issues, non-custodial parents still frequently encounter difficulty in obtaining records from local school systems and doctors.

4.  No provision for domestic and/or overseas travel or travel restrictions. This isn't a common source of trouble, but for couples who travel abroad frequently, who are from different countries or who have different citizenship statuses, this may be an important item to clarify.

5.  Not including guidelines for future medical care, such as orthodontia or other medical/surgical treatments, as well as how the costs for such care will be split.

6.  No provision for how the potential impact of loss of employment or disability will be handled (for either parent).

7.  No provision on methods to handle future disputes and the expenses related to the disputes. Mediation is often called for as a first step. Mediation acts as a 'buffer zone' for disputes in family court, 'screening' some out by resolving them before the court system is actually engaged.

8.  No requirement for a periodic review of child support amount (upward or downward). Although some States do this automatically now, it is also a good idea to have this addressed in the parenting plan.

9.  Not including a provision for changing parenting time schedules as the child gets older. This can be a difficult provision to include, because no one knows what direction events, including children's choices and desires, will go. Nonetheless, there should be guidelines for managing potential schedule changes.

10.  No provision for or discussion of future educational choices, including college, and no clear determination of how the costs will be split.

To read more about this, go to the Oklahoma Family Law blog, go to Oklahoma Family Law Blog.

The bottom line is - if you have a "what if" question or specific thought regarding your child when discussing a parenting plan, make sure you bring  these issues up with your attorney.  Your attorney should know what the statute requires to be in a parenting plan and what has worked in numerous cases before, but you are the one that knows the traditions of holidays, the child's wants or needs, etc. and you have to make sure these items are brought to your attorney's attention so they can be included in the parenting plan or at least considered.

1.  The use of a non-specific parenting schedule (the "liberal and frequent visitation" clause). The phrase "liberal and frequent visitation" has no defined meaning in a court of law; the phrase means whatever the custodial parent says it means and is subject to change without notice.

2.  No provision for discussion regarding residential moves by the custodial parent. Move-away disputes are among the most hotly-contested post divorce issues brought to family court, and almost always an issue that a well-written parenting plan could help resolve (or prevent).

3.  No section covering access to and/or the sharing of medical and educational records. Although many States now have laws that address these issues, non-custodial parents still frequently encounter difficulty in obtaining records from local school systems and doctors.

4.  No provision for domestic and/or overseas travel or travel restrictions. This isn't a common source of trouble, but for couples who travel abroad frequently, who are from different countries or who have different citizenship statuses, this may be an important item to clarify.

5.  Not including guidelines for future medical care, such as orthodontia or other medical/surgical treatments, as well as how the costs for such care will be split.

6.  No provision for how the potential impact of loss of employment or disability will be handled (for either parent).

7.  No provision on methods to handle future disputes and the expenses related to the disputes. Mediation is often called for as a first step. Mediation acts as a 'buffer zone' for disputes in family court, 'screening' some out by resolving them before the court system is actually engaged.

8.  No requirement for a periodic review of child support amount (upward or downward). Although some States do this automatically now, it is also a good idea to have this addressed in the parenting plan.

9.  Not including a provision for changing parenting time schedules as the child gets older. This can be a difficult provision to include, because no one knows what direction events, including children's choices and desires, will go. Nonetheless, there should be guidelines for managing potential schedule changes.

10.  No provision for or discussion of future educational choices, including college, and no clear determination of how the costs will be split.

Immigration - Costs to Children When Parent Deported

However you feel about illegal immigrants being in this country, there is one area I believe we all can agree upon - when the parents are torn away from their children, it is the children that will suffer the most.  The New York Times recently published an article in the Opinion section that speaks of this.  You can read the article at this link.

During my practice I defended an illegal immigrant for parental kidnapping.  This immigrant had lived in the US for about 10 years, had married a US citizen, paid taxes,  and had a child with his wife.  The mother (the US citizen) left immigrant for another man and subsequently left the toddler with the immigrant.  The immigrant raised the child for almost 7 years without the mother contacting him or the child or providing any type of support.  During this period of time the mother filed for divorce and obtained full custody of the child in another state, all without the immigrant being notified.  Two years after being granted custody of the child the mother filed parental kidnapping charges against the immigrant.  A warrant was issued for the arrest of the immigrant and about 3 years later the immigrant was arrested.  The child taken by the law enforcement officials to family services and subsequently placed in foster care until the mother could be found even though there were family members available to take the child.  The child had no idea of what was going on and was terrified.  After the mother was found the child was given to her even though there had been no contact for so many years and the child did not know the mother.   

The child thought the only parent she knew had abandoned her.  It was only after the court dismissed the charges against the immigrant and "visitation" with the child began  did my client have a chance to explain to the child what had occurred.  It took several "visitations" for the child to begin trusting again.    The child is now back with the immigrant (mother once again left the child with him) and he is making progress towards staying in this country legally so he can be with his child.   If he is deported, what will become of the child?  Will she be placed back with the mother that does not seem to be able to take care of her?  Will she be deported with the immigrant (child is a US citizen)?  Will she be placed in foster care?   

It does cost the children when a parent is deported. 

Behavior by Client in a Custody Hearing

In the past I have talked about the behavior of clients and how the behavior could possibly alter the outcome of a custody hearing.  Recently another attorney, Ben Stevens of the South Carolina Family Law Blog,  wrote about being called "the devil" by his client's wife while she was on the stand testifying.  The wife was saying how horrible Ben's client was and called him the devil.  She then went on and called Ben the devil too.  In awarding custody to Ben's client, the Judge noted the wife's behavior and hatred while she was on the stand (as well as elsewhere).  It just goes to show that you cannot be too careful in what you and say and do when involved in a custody battle.  Please take the time to read Ben's posting on his blog, South Carolina Family Law Blog.  It is entertaining as well as informative.  He leaves you with the following:

There are two morals to be learned from this story:

1. Your bad actions and/or misdeeds can (and usually do) come back to haunt you at trial.  I typically advise my clients to assume that they are always being recorded and not to do or say anything outside of court that they wouldn't want the judge to see/hear.
2. Even if things go against you during trial, you should remain calm, cool, and under control.  It will never benefit your case to call the other party names from the stand.  Instead, it will almost always backfire and result in you looking worse in the judge's eyes.

Take his advice to heart if you are going through a custody battle or contemplating one. 

Megan's Law - Missouri's Sex Offender Registration Act

I'm a criminal defense attorney as well as a family law attorney.  There are some cases that I choose not to take - whether they be criminal or involve the family court system.  One type of case I will not take is child abuse - whether physical or sexual.  To me, there is no excuse for abusing a child.  I will defend a person accused of murder, drugs, etc., but not abusing a child.  I will not take a custody case if the person has allegations of abusing a child and I do not believe the person is innocent of these allegations.  I know that everyone deserves to be represented by an attorney.  I support that but I also know that I will not be that attorney.  Why?  Because the person deserves the best representation he or she can receive.  I am not that attorney because of my feelings on the subject.      

With that stated, I want to get to the subject of this post - Missouri's Sex Offender Registration Act (SORA), also known as Megan's Law.    This is the law that requires certain sexual offenders to register with the chief law enforcement official (usually the sheriff)  in the county where the offender resides. These offenders include any person who has been convicted or pled guilty to a felony offense under chapter 566, including sexual trafficking of a child and sexual trafficking of a child under 12, and any offense under chapter 566 where the victim was a minor.  The offender has to fill out a form that has been designed by the Missouri State Highway Patrol.  This information is then sent by the chief law enforcement official to the Missouri State Highway Patrol where the information is put into the Missouri Uniform Law Enforcement System  (MULES) to be viewed by other law enforcement officials and prosecuting attorneys.   Some of this information is also posted online and made available to the general public.  The public can look to see whether a certain individual may be a sex offender or if there are sex offenders living in a certain area.  I admit, I have looked to see whether there are sex offenders living near my residence.  Thankfully I found none.  If you haven't checked out your neighborhood, you should.  Just plug in "Megan's Law" into your search engine and it should lead to your state's list.

In most circumstances the sex offender must register for his or her lifetime.  However, under the Missouri  statute (section 589.400) there are certain offenses  that allow for the offender to petition the court for removal from the registration requirements.  These include those who were convicted of promoting prostitution in the 2nd and 3rd degree, public display of explicit sexual material, statutory rape in the 2nd degree, and no physical force or threat of physical force was used.  Those convicted of these offenses may petition the court after 10 years to be removed from the registration requirements.  Also, those who were 19 years of age or younger and the victim was 13 years of age or older may petition the court after 2 years.  All who petition the court have to prove  that they fall into one of the categories that allow the petition, that they have complied with the provisions of the statute, and they are not a current or potential threat to public safety.  If the offender cannot prove these elements, the offender is not entitled to the removal.  And, even if the offender does prove these elements, the court does not have to grant the removal.  If the court denies the removal, the offender must wait for twelve months before petitioning the court again.

Why is this on my mind?    I have recently had to do research on this matter in order to keep an offender from being removed from the registration requirement.   The removal from the registration requirement is a civil matter and  I was hired to defend the registration.   This offender pled guilty to the class D felony of sexual abuse with a child, his child,  who was 6 years old at the time.  I do not want this man released from the requirement to register for the remainder of his life.  At this time the court hasn't made a ruling.  I will keep you posted.

Temporary Custody Orders in Modification Actions

In the case of State of Missouri ex rel. Jennifer Lynne Milner v. Carlton, et al., the Southern District of the Missouri Court of Appeals found that the temporary custody order of the trial court in a modification action  violated the mother's due process rights.  The parties were divorced  in 2005 and mother was awarded the sole legal and physical custody of the children subject to the father's rights of visitation.  Thereafter the mother moved with the children to the State of Kansas without providing the father with the proper notice as required by section 452.377.11, RSMo.  The father filed a motion to prevent the relocation and to modify the dissolution judgment.  Without notice to the mother or an opportunity for her to be heard on the motion, the trial court entered a temporary order awarding the custody of the children to the father.  Mother appealed on the basis that such an order violated her due process rights.  The Southern District agreed because the order, although temporary, deprived the mother of her custody rights given to her in the dissolution judgment and affected her parental rights.  The Southern District ordered  the issuance of a peremptory writ in mandamus whereby the trial court was ordered to vacate the "Order for Temporary Custody" entered June 23, 2006, in the underlying case and to conduct such further proceedings as are necessary and appropriate with due regard for the parties' due process rights.

What is interesting about this case are the footnotes to the case.  The Southern District noted that the reference to "primary" physical custody is no longer appropriate under section 452.375, RSMo.   Custody must now be either sole or joint custody as ordered in the case of In re Marriage of Hendrix, 183 S.W.3d 582, 585 n.2 (Mo. banc 2006).

The Southern District also commented on the prior case law  that has "suggested" that temporary custody  orders are not authorized in modification actions. See, e.g., Fortner v. Fortner, 166 S.W.3d 615, 620 n.3 (Mo. App. 2005); Adams v. Adams, 812 S.W.2d 951, 954-55 (Mo. App. 1991); Muegler v. Muegler, 784 S.W.2d 839, 840 n.1 (Mo. App. 1990).      The Southern District hinted that this may no longer be the case.  This particular action involved a motion to prevent relocation of the children due to lack of notice as well as modification of the dissolution judgment.  It stated that: 

Section 452.377, which governs relocation of a child, expressly provides: "The court shall consider a failure to provide notice of a proposed relocation of a child as ... [a] basis for ordering the return of the child if the relocation occurs without notice[.]" Section 452.377.5(2). Arguably, this provision may provide authority for the entry of a temporary order concerning custody where a child has been relocated without the requisite notice. Given the state of the record before us, as well as the fact that the parties have not raised or argued this issue, we do not believe it would be appropriate to decide the scope of Section 452.377.5(2) in this writ proceeding. Assuming, arguendo, that this provision does authorize the issuance of a temporary order, we nevertheless conclude that Relator was entitled to notice and an opportunity for hearing prior to the entry of such order.

It will be interesting to see what the courts hold in the future on this issue.

Source:  State ex rel. Milner v. Carlton,  SD28192, Missouri Court of Appeals, Souther District, May 23, 2007

   

Adult Abuse - Order of Protection - Stalking

Most cases involving orders of protection involve female vs. male or female vs. female.  You do not see too many involving just males.  Recently the Missouri Court of Appeals, Southern District, had an opportunity to review a case wherein a male sought and was granted a full order of protection under the Adult Abuse Act (sections 455.005 - .090, RSMo) against another male.  In his petition, the plaintiff alleged that the defendant had harassed and stalked him by forcing his vehicle to stop in August 2005 and threatening violence  and to kill him.  The trial court granted plaintiff an ex parte order of protection against the defendant based upon the allegations in the petition.  During the bench trial the plaintiff admitted that he was not a family member of the defendant, that he and the defendant had never resided together, that the threats against had occurred in August 2005 and again in October 2005.  Based upon this testimony the trial court permitted the plaintiff to amend his petition to include the October 2005 incident and it issued a full order of protection against the defendant.  The defendant appealed on three grounds - 1) the petition failed to state a cause of action; 2) the court erred when it allowed the petition to be amended; and 3) the judgment was not supported by the evidence.  The Court found that the first two grounds were moot but due to the repercussions of having a full order of protection on the defendant's record, the appellate court decided to hear this appeal on its merits on the third ground even though the order had expired.

Due to the plaintiff not being a family member of defendant nor having resided with the defendant, the plaintiff was only entitled to an order of protection for stalking.  Stalking is defined to occur when:

[A]n adult 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) "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;

(b) "Repeated" means two or more incidents evidencing a continuity of purpose; and

(c) "Alarm" means to cause fear of danger of physical harm.

Section 455.010(10). The plaintiff had to prove his case by a preponderance of the evidence.  The defendant contended that  the plaintiff failed to do this because there was no evidence that the defendant had engaged in conduct that caused alarm to the plaintiff.  The Court agreed.  The plaintiff had to prove that the defendant:  (1) purposely and repeatedly; (2) engaged in an unwanted course of conduct; (3) that caused alarm to plaintiff; (4) when it was reasonable in the plaintiff's situation to have been alarmed by the conduct. Section 455.010(10).   The Court went on to state:

As defined by this subsection of the Act, a "course of conduct" must be composed of repeated acts over a period of time that serves no legitimate purpose. Section 455.010(10)(a). "Repeated" is further defined to require two or more incidents demonstrating a continuity of purpose. Section 455.010(10)(b). Alarm requires proof that the petitioner was placed in "fear of danger of physical harm." Section 455.010(10)(c). The evidence in the case at bar was deficient in two respects.
First, proof of stalking involves both a subjective and an objective component. Thus, it was essential for Glover to present substantial evidence that: (1) Michaud's threats caused Glover to subjectively fear physical harm; and (2) a reasonable person under the same circumstances would have feared physical harm. Section 455.010(10); Schwalm v. Schwalm, 217 S.W.3d 335, 337 (Mo. App. 2007). At no point in Glover's testimony did he ever testify that he was afraid of Michaud or feared being physically harmed by him. Neither was there a sufficient factual development of the evidence to permit the trial court to reasonably determine whether an objective person in the same circumstances would have felt that way. In short, proof that Michaud threatened Glover during the course of an argument on August 21, 2005 does not, ipso facto, constitute proof that Glover took the threat seriously or that a reasonable person would have done so.
Second, there was insufficient proof that Michaud engaged in the requisite "course of conduct" that is an essential element of stalking as defined by Section 455.010(10). Glover testified, albeit in a most cursory and unsatisfactory fashion, about one incident that took place on August 21, 2005. Later, he testified that Michaud also "blocked the road" and "restrained" Glover on October 20, 2005. In the absence of any factual explanation of what actually occurred on the latter date, however, Glover's naked conclusions did not constitute substantial evidence from which the trial court could draw any reasonable inferences. See Hutchings v. Roling, 151 S.W.3d 85, 89 (Mo. App. 2004) (when devoid of any factual support, a lay witness' conclusions do not rise to the level of substantial and competent evidence). For example, the court was not presented with any facts from which it could determine whether Michaud's conduct on that occasion served a legitimate purpose or would have alarmed a reasonable person. The only facts concerning the events of that day came from Michaud, who testified that Glover's complaint involved nothing more than the ordinary act of slowing down on a highway in order to make a turn. Thus, the evidentiary support for the judgment falls short for this reason as well.
Based on our review of the record before the trial court, we conclude that insufficient evidence was presented to support the entry of a full order of protection against Michaud. This holding prompts us to repeat the following cautionary note from Wallace v. Van Pelt, 969 S.W.2d 380 (Mo. App. 1998):

The potential for abuse of the stalking provision of the Adult Abuse Act is great. And, the harm that can result is both real and significant, not the least of which will be the stigma that attaches by virtue of a person having been found to be a stalker. Moreover, such a finding could lead to criminal prosecution for violation of the criminal stalking statute, Section 565.225. Thus, it is incumbent that the trial courts exercise great vigilance to prevent abuse of the stalking provisions in the Adult Abuse Act and in making sure that sufficient credible evidence exists to support all elements of the statute before entering a protective order.

James B. Glover v. Wiatt Michaud, SD27565, Missouri Court of Appeals, Southern District, May 24, 2007

More Suggestions on Preparing for a Divorce

I want to take the liberty of directing  you to another attorney's blog and his suggestions on how to prepare for a divorce.  The firm of Sherman & Jeffries have the Alabama Family Law Blog and have posted a series of steps on this.  Please take the time to read these steps if you are considering a divorce.  The steps are:

Step 1 - Find a Wise Guide
Step 2 - Make an accounting of the family finances
Step 2A - Determine what you own
Step 2B - Determine what you owe
Step 2C - Determine Income
Step 3 - Make photocopies of all the financial records
Step 4 - Prepare a budget (or two)
Document & Safeguard Personal Property
Step 6 - Establish your own credit
Step 7 - Assess the Financial Accounts
Step 8 - Address the Credit Accounts
Step 9 - Avoid additional debt or major purchases
Step 10 - Stay Put (until further notice)
Step 11 - Keep a diary

Although all of the steps are important, I want to point out step 11 - keeping a diary.  I recommend all my clients, whether going through a divorce or a modification, keep a diary that logs telephone calls and in-person conversations, the date and time of each, and the content of each.  I also have clients keep logs of items involving the children - comments the children make about a situation that is at issue, whether the other parent was involved, etc.  The more you can give the court specifics about an incident, the more likely your testimony is going to be believed by the court.  There are ways to protect this from being discoverable and you should discuss these ways with your attorney.

Social Security/Medicare Elgibility

If you are a stay-at-home parent, do you know how your Social Security and Medicare benefits are affected by a divorce?  You should be, especially if you are being asked to give up your interest in your spouse's Social Security and retirement benefits.  Did you know that unless you have earned 40 Social Security quarters the free Medicare A in not available to you?  Or that if you are between 0 and 39 quarters you will need to have other arrangements made?  Before you sign off on your spouse's benefits, check out your status at www.medicare.gov/MedicareEligibility and discuss the same with your attorney. 

New Books & Website to Review

Here are a couple of books that give information on the divorce process and what a divorce entails.  They are:  Your Pocket Divorce Guide by Linda C. Senn and The Divorce Recovery Journal co-authored by Linda C. Senn. 

You might also want to check out the following website for information on the books and a few articles:   DivorceTransitions.com.

Missouri Child Support FAQs

The following has been provided to the public by the Missouri Bar:

The purpose of this pamphlet is to answer some of the questions frequently asked about obtaining and enforcing support orders, and to give you an idea of the services which are available to assist you in your efforts.

Child Support in Missouri: Establishing and Enforcing Your Rights was prepared by the Young Lawyers’ Section of The Missouri Bar and was generously sponsored by the Young Lawyers Division of the American Bar Association.

Committee: Mary‑Michael Kelly, Esq., chairman, and special thanks to committee members: Melissa Mauer‑Smith, Esq. and Mark Katz, Esq. from the Family Support Division of the Jackson County Prosecutor’s Office, Kansas City, Missouri, for their contributions to this publication.

Copyright 1990, The Missouri Bar

ESTABLISHMENT OF CHILD SUPPORT ORDER

What is child support?

Child support is money that a non-custodial parent is ordered to pay on a regular basis to help pay for the costs of raising his or her child.

What is a child support order?

A child support order is a document from a court or Division of Child Support Enforcement (D.C.S.E.). It states 1) when, 2) how often and 3) how much a parent is to pay for child support. A child support order is usually included in a divorce judgment or paternity judgment.

Am I entitled to obtain a child support order?

If you have physical custody of your child rather than legal custody, if you are in the process of getting divorced, or if you are separated from your spouse, or if you have actual custody of a child for whom paternity has not been legally determined and there is no support order, then you are probably entitled to obtain an order for child support.

What amount will I receive for child support?

The State of Missouri has established guidelines for child support orders. These guidelines consider the needs of the child(ren) and the income of each party, i.e. the custodial and non‑custodial parent, and costs for child care and health insurance. Therefore, the amount of child support you receive will be different depending on your individual circumstances.

Who can change or terminate a child support order?

Only the court can change or terminate court ordered child support orders. Under no circumstances can the parties agree between themselves to alter a court order without the court’s permission.

In cases where D.C.S.E. has issued an administrative order, D.C.S.E. has the power to modify the child support amount.

How do visitation and joint custody affect child support?

Child support is not affected by visitation in most cases. Only a court can change a child support order because a custodial parent has not allowed the court ordered visitation. By the same token, visitation cannot be denied because a parent is behind in child support payments. D.C.S.E. is not allowed to get involved in visitation issues.

Any questions you may have on visitation issues should be discussed with your attorney.

In my divorce decree, the court did not order any child support. Can I apply for child support now?

You may be able to obtain an order of child support administratively or through the court depending on the language in your divorce decree and the circumstances.

Also, you may wish to speak with an attorney about changing the terms of your original decree. In some cases, the court may change an order of child support if the evidence supports a modification.

Who can order child support to be paid?

A child support order can be entered in several ways. A judge may issue a temporary order while a divorce or legal separation is pending, and the order may be finalized at the end of the case. A judge may issue an order as part of a paternity case. An order may also be entered as part of a juvenile proceeding, or as part of an adult abuse action. If a court has not already ordered child support, the director of the Division of Child Support Enforcement may issue an order in certain cases.

What is the Division of Child Support Enforcement?

The Missouri legislature set up the Division of Child Support Enforcement to assist parents in obtaining child support orders and in collecting child support. It is sometimes referred to as a IV‑D agency, because it was created under Title IV‑D of the Social Security Act.

In this pamphlet it will be referred to as D.C.S.E. The services offered by the D.C.S.E. are free.

How can I sign up for the services of D.C.S.E.?

Applications for child support assistance can be obtained at your local D.C.S.E. office. Check your local telephone directory for the Division of Child Support Enforcement office located nearest you.

Do I have to meet any financial qualification in order to obtain the assistance of the Division of Child Support Enforcement?

The child support services are available to all custodial parents, regardless of income level.

Can I get child support if I am receiving state aid?

As an A.F.D.C. recipient, you have signed over your rights to child support to the state. The state, through D.C.S.E., will try to establish and enforce a child support order. The money collected will be turned over to the state to pay back the state aid which you have received.

If you are receiving state aid, your caseworker should be able to answer your questions about their policies.

Who keeps track of my child support payments?

In all cases, child support payments are tracked through the Family Support Payment Center (FASTPAC).

 

When does the child support obligation end?

Usually, child support will terminate at the age of emancipation, which differs in each state. In most cases in Missouri, the obligation to pay child support will end when the child is between the ages of 18‑22 years. The actual date of emancipation will depend on whether the child has graduated from high school and is attending some form of higher education. Other factors include whether the child is married, is on active duty in the armed forces, or is self‑supporting.

My spouse and I are separated, but neither one of us has filed for divorce or legal separation. Our children are living with me. What can be done to get child support for my kids?

The Division of Child Support Enforcement can obtain a child support order for a custodial parent through administrative procedures.

The D.C.S.E. does not handle divorces; therefore, you may wish to contact an attorney to discuss your other options.

PATERNITY ISSUES

The father of my child and I are not married. Can I receive child support from him?

Your case can be handled either by D.C.S.E. or your own attorney and would generally be called a paternity case. In a paternity case, once paternity (fatherhood) is established, you may be able to obtain child support from him for your child.

How long does it take to get an order establishing paternity?

If the father of the child is unwilling to cooperate in establishing paternity and it must be proven that he is the father, establishing paternity can be a long process. Every case is different and the time span varies widely. If, on the other hand, the father legally admits his paternity, the case can proceed fairly quickly.

Will a blood test be done in my paternity case?

Generally, in cases where a man denies that he is the father of your child, the alleged father is entitled to request a DNA genetic parentage test to determine if he is the biological father. Sampling may be obtained by blood or buccal (cheek) swab. Today the vast majority of testing is performed using buccal cells, rather than blood. This technique is approved by the paternity testing accreditation organization, the American Association of Blood Banks.

ENFORCEMENT OF CHILD SUPPORT ORDER

I already have a child support order, but the other parent isn’t paying. What’s the next step?

Once you have a child support order, if the support is not being paid, the next step is to enforce the order. You may try to enforce the order on your own, or you may wish to speak with an attorney or go through D.C.S.E.

How can a child support order be enforced?

Usually, the quickest and most effective ways to enforce a child support order are through wage assignments and garnishments. These are orders to employers, banks and others who may owe money to the absent parent to pay the delinquent child support instead of the absent parent. Other methods of enforcement include real estate liens, personal property liens and attachments. These methods are usually more time‑consuming and, in the case of attachments, may involve large cash deposits to cover sheriff’s fees, storage and court costs.

What is civil contempt of court?

A civil contempt order is one way that a judge can enforce a child support order. In certain circumstances an absent parent may be sent to jail until he or she pays off the child support arrearage. Civil contempt is a very complicated area of law. It is recommended that you consult an attorney or the D.C.S.E. rather than trying to obtain a civil contempt order on your own.

What if the absent parent is not in Missouri?

The fact that an absent parent does not live in this state may make child support collection more difficult. However, all 50 states have passed laws which increase interstate cooperation. You may wish to contact your attorney to discuss the possibility of registering your child support order in the absent parent’s state.

D.C.S.E. has the ability to cooperate with IV‑D agencies in other states through administrative procedures. The agencies may also work together by filing a petition under the Uniform Reciprocal Enforcement of Support Act (URESA).

What will happen to the child support if I move out of Missouri?

In most cases, child support is not affected if you leave the state. If you have child support collection problems, you should contact the IV‑D agency in your new location. You should be aware, however, that leaving the state may have implications where custody and visitation are concerned.

If you are thinking of leaving the state, it is recommended that you speak with your attorney to get a full explanation of your rights and responsibilities.

What can I do to help the D.C.S.E. obtain and/or enforce the child support order for my kids?

You can provide all information and required documents with your application. You can keep D.C.S.E. advised of any new information on location or employment of the absent parent.

What about:

Custody ? Visitation ? Divorce ? Abuse ? Mediation/Arbitration ?

These issues are beyond the scope of this pamphlet and you may wish to discuss them with your attorney. The D.C.S.E. does not have the authority to deal with these issues.

Source:  The Missouri Bar

Also take a look at a new website, The Child Support Web, for information about child support in various states or to find an attorney in the different states.

Case Review - Requirements for Change in Custody

Strobel v. Strobel was decided by the Missouri Court of Appeals, Western District, on April 17, 2007.  In this case the parties sought a modification of the original dissolution judgment as it pertains to the custody of the children.  The original dissolution judgment awarded sole legal and physical custody of the children to the Father but gave each parent roughly equal parenting time with the children.  Subsequent to the original dissolution judgment being entered the Mother sought a clarification of the parenting plan.  Thereafter the Father countered with a modification of the Mother's visitation time and the Mother then countered seeking joint legal and physical custody.  The Court granted the modification of custody from sole legal and physical custody to joint legal and physical custody.  Father appealed.

In order to support a custody modification, there must be proof of a change in circumstances.  However, this change does not have to be a "continuing" change in circumstances and it does not have to be a "substantial" change where the modification order changes custody from sole custody to joint custody.

In Strobel the Mother testified that until right before the modification action was initiated, she and the Father were able to communicate and make joint decisions regarding the children. However, this changed right before the modification was started, and Mother testified that the Father tried to keep the Mother from participating in the decision making for the children and that the Father interfered with her parenting time.  The Court found that a change in circumstances occurs when there is a breakdown of parental communication and cooperation.  This is enough to modify the original dissolution judgment.

Source:  Walter Strobel v. Jane Strobel, Missouri Court of Appeals, Western District, WD67242, April 17, 2007

Careful What You Say or Print

Posted on April 20, 2007 by Charles Meyer of the Pennsylvania Family Law blog:

Let the lesson be learned: In this day and age of technology, what you say, in whatever format, could be used against you later.

This morning's news story relating to Alex Baldwin's voice mail message to his daughter, who I believe was reported as being 11 years old, should be a lesson to every person going through a divorce and to every person who may now or in the future have a possible custody issue. 

While many states have laws limiting the recording of conversations, whether in person or on the phone (and you should consult an attorney about this issue before ever attempting to make such a recording because it could be a crime), if a person voluntarily creates a recorded message or statement, whether on a voice mail system or by sending an email, the statements made likely are admissible in a court proceeding. 

I tell my clients all the time to be very careful in emails.  In many situations I also ask to review many emails before they are sent.  Finally, I have clients keep every email, in bound and out bound, so that I can review them prior to hearings and make sure there are no surprises waiting for me in the courtroom.

If the recording of Alex Baldwin is accurate, it is wrong on so many levels.  Even if his allegations are true that his former spouse is attempting to alienate his child from him, it is up to him to take the high road and keep his daughter out of the middle of, what should be, an argument between the adults. 

Think before you speak and before you write.  That is the message for the day.

This is very good advice.  I always have my clients bring in the email and telephone messages they receive from their spouse or ex-spouse.  I also warn my clients about leaving messages that will hurt their case.   It is surprising to me that people still leave messages that will hurt their case.  In this day and age of technology, they have to know their messages can be preserved and used against them.   There just isn't any excuse for doing so.

In Missouri, unless you are an attorney or other regulated profession, recordings may be made of a conversation that you are participating in.  There are times when I direct my clients to have a small recorder in their pocket to record what is being said during exchanges of the children.  There are two reasons for doing this.  First, I want to be able to prove my client did not say something that the opposing side is or may accuse my client of saying.  Second, I want to be able to prove how nasty the opposing side can be when no one else is around or when the children are around.  Again, I remind my client to be careful of what comes out of his/her mouth as the recording can just as easy be used against him/her by the other side.

As to Alec Baldwin's situation - even though I can understand frustration (and he seems to have been under a lot of it during  his custody battle), there is no excuse for saying what he did to his child.  I know there are times when all parents become extremely frustrated by their children (me included) and just want to blast them for their behavior.  Probably Baldwin's daughter was acting like the pig he accused her of being, but you just do not say things like that to a child and in such a hateful manner.    You step away, back off, whatever you need to do to calm down; then you make the phone call or talk to your child.  I am sure Baldwin deeply regretted what he said to his daughter even before the recording was made public.  It is a shame that someone had to publish the recording.  It does not make it easier for any one - Baldwin, Baysinger or their child.   If Baysinger did publish the record, I have to wonder if she really thought of her child first; it makes me wonder about her abilities to parent just as much as Baldwin's statements make you wonder about his abilities.  The recording should have been kept private with just the family court hearing it.

Source:   Pennsylvania Family Law

Private Investigators

There are times when your attorney will request that  a private investigator be hired on your case.  Private investigators can be help obtain documentation regarding lifestyle, assets, income, roommates, friends, paramour and parents, including  criminal history checks , work history, demonstrating hidden affluence, locating and interviewing witnesses, and obtaining information regarding abuse or neglect.  The private investigator can be called to testify as to his/her findings in court.  I find them helpful in interviewing witnesses whom I believe may be adverse to our position or who may change their testimony down the road.  The investigator's testimony can be used to impeach a witness on the stand if necessary.

Your attorney should be able to recommend a private investigator.  Usually an attorney has one that they have worked with before or can get a recommendation from another attorney.  Some private investigators will be licensed and some will not.  In this area many of the private investigators are former law enforcement officers who have decided to go into investigation.

When hiring a private investigator, a consideration is the cost.  Costs can vary but are typically in the $50 to $75 per hour range plus expenses.  You have the right to a written contract at the time you are contracting the service.

In every case, there are issues of both law and fact.  Private investigators can help make the facts become clearer.  Solid, verifiable facts can affect the outcome of cases.   Even the greatest attorney will have a hard time meeting his burden or proving his/her case without verifiable facts.  Hiring a private investigator may be the best way to get those facts.  You and your attorney will have to decide whether the cost of the investigator is worth it.

Source:  South Carolina Family Law Blog published by Benjamin Stevens

Holiday Tips

The holidays are very hard for parents when they are going through a divorce or are divorced.  No parent wants to spend a holiday without  his or her child.  In a perfect world the parents would get along well enough to spend the holidays together with the child.  This would include the parent's new spouse and children.  However, this is not a perfect world and this happening occurs only in rare circumstances.  I think I have had only two or three divorced families that have been able to do this.  How did they manage to work out their differences enough to be able to celebrate together?  They put the child first and did what was necessary to obtain this goal.  Not every family can do this and not every family should.  If there is domestic abuse or if the  parents cannot control the animosity towards each other, they should not attempt it.  However, they should attempt to work out the specifics of the holidays so as not to make the child feel guilty about spending the holiday with one parent and not the other.  Parents should never put the child in the middle of their disagreements over the holiday (or any other custody/visitation period).  It is hard enough for the child to be separated from one parent during the holidays without being placed in the middle of the parents' disagreements.  The following are tips that should help in working out the holidays.

1. Plan Ahead

Develop a parenting schedule before the holidays.

Avoid scheduling the children for dinner with Dad at noon and a second turkey dinner a few hours later with Mom. Instead, arrange for Dad to spend the entire day with the children in all odd-numbered years, and have Mom spend the holiday with them in all even-numbered years.

If possible, hire a parenting coordinator or mediator, usually a child psychologist or divorce lawyer appointed by the court to act as a decision-maker until a judge makes a different decision. You have quicker access to the coordinator/mediator than the judge, but the coordinator/mediator must be paid.

2. Keep Your Word

Stick to the schedule. Arrive on time and drop off the child on time.

3. Keep in Touch

If the child is not with you for the holidays, call, and be sure to send cards or email. Consider celebrating the holiday or birthday before or after the actual day. Children love parties and gifts any time - nothing fancy - but something special you create just for them.

4. Let the Child Keep in Touch

If the child spends the holiday with you, let them speak with the other parent. Give the child any cards and email from the other parent, and read the messages to young children who cannot read. If the child is too young to call, help  make or receive a call, and let the child have a quiet moment to speak with the other parent. Make sure to avoid planning an exciting activity like gift-opening at the same time that the child is  scheduled to speak with  Mom or Dad.

Remember, children usually have a short attention span, so do not blame the other parent if conversations are short.

5. Safe Travel

Make travel arrangements with airlines for long-distance travel. Airlines provide supervision for unaccompanied minors for a nominal fee.

6. The Art of Gift-Giving

Coordinate gift-giving with the other parent. Do not give your child a cell phone if you know Mom is giving her a phone. If your ex-spouse will not cooperate, go ahead with your own plans, but do not complain to the child  about the other parent.

7. Acknowledge the Child's Right to Enjoyment

Let your child take gifts to your ex-spouse's home. Conversely, if your child brings home a new toy or bicycle, let your child take it back to  Dad's home, if the child wants.

8. To Each His Own

Let the child spend Mother's Day with Mom and Father's Day with Dad.

9. Create Your Own Celebrations

Do not insist upon attending your child's birthday or graduation party if your ex-spouse is throwing the party. Give your own party on another day.

10. Give Your Child Permission to Love Both Parents

Help your child buy or make a gift and card for the other parent, if the child is too young to handle the tasks himself or herself. You are doing your child a favor, not your ex-spouse, because you are giving your child permission to love the other parent - the best gift you can give.

Source:  DivorceNet, 10 Holiday Tips for Divorced Parents by Law Offices of Sharyn T. Sooho

Recommended Reading for Divorces

Below is a list of recommended reading if you are contemplating, going through, or recovering from a divorce.  It includes books for your children as well as yourself.  This list was compiled by Leigh Joy Carson:

 

For Children ages 3-6

"Divorce is a Grown-Up Problem"
by Janet Sinberg

"Two Homes to Live In"
by Barbara S. Hazen

"Mommy and Daddy are Divorced"
by Patricia Penny and Marietta Lynch

For Children ages 6-14

"How Does It Feel When Your Parents Get Divorced?"
by Terry Berger

"Always, Always"
by Crescent Dragon Wagon

"How Does It Feel When Parents Divorce?"
by Jill Krementz

"Coping When Your Family Falls Apart"
by D.D. Booher

"Why Are We Getting A Divorce?"
by Peter Mayle

"Me Day"
by J.M. Lexau

"It's Not The End of the World"
by Judy Blume

"Taking Sides"
by N. Klein

Adult Children of Divorce

"Adult Children of Divorce Speak Out"
by Claire Brown

"A Grief Out of Season"
by Noelle Fintushel and Nancy Hillard

Step-Parent Families

"What Kind of Family is This?"
by Barbara Sueling

"No Easy Circle"
by P. Naylor

"On Becoming A Step-Family"
by Patrcia Papernow

Recommended Books for Parents

"Crazy Time: Surviving Divorce"
by Abigal Trafford

"How to Talk so Your Kids Will Listen - How to Listen So Kids Will Talk"
by Adele Faber and Elaine Mazlishby

"Families Apart - Ten Keys To Successful Co-Parenting"
by Melinda Blau

"Divorce Book For Parents"
by Vicky Lansky

"Stop Struggling with Your Child"
by Evonne Weinhaus and Karen Friedman

"The Parent Book About Divorce"
by Richard Gardner

Source:  DivorceNet

Suggestions When Going Through A Divorce

I was pleased to read an article on DivorceNet from an attorney that I am familiar with in the family law area.  Leigh Joy Carson has written an article, Suggested Guidelines for Parents During Separation or Divorce Proceedings, that contains common sense tips.  My favorite is: 

1. Think first of your children's present and future emotional and mental well-being before acting or reacting. This will be difficult, because of your own feelings, needs and emotions, but try, try, try.

This makes sense.  You will not always be able to do this, but it is a goal you should strive for.  Children should be put first if possible.  However, do not forget to take care of yourself.  You need to take care of yourself in order to be a good parent to your children.  The other suggestions are:

2. Maintain your own composure and good emotional balance as much as possible, and in talking to yourself, verbally and in your thoughts, remember it is not the end of the world. Laugh when you can and try to keep a sense of humor. What your children see in your attitude will to some measure be reflected in theirs.

3. Allow yourself and your children time for readjustment. Convalescence from an emotional operation, such as a dissolution of marriage, is essential.

4. Remember the best parts of your marriage. Share them with your children appropriately and use them constructively.

5. Assure your children that they are not to blame for the breakup and that they are not being rejected or abandoned. Children, especially the young ones, often mistakenly feel they have done something wrong and believe that the problems in the family are the result of their own misdeeds. Small children may feel that some action or secret wish of theirs has caused the trouble between their parents. Explain to them that there are other children whose parents have been divorced and that they are not going to lose their mom or dad.

6. Continuing anger or bitterness toward your former partner can injure your children far more than the dissolution itself. The feelings you show are more important than the words you use.

7. Refrain from voicing criticism of the other parent. It is difficult, but absolutely necessary. For the child's healthy development, it is important for him or her to respect both parents.

8. Do not force or encourage your children to take sides. To do so encourages frustration, guilt, and resentment.

9. Try not to upset the children's routine too abruptly. Children need a sense of continuity and it is disturbing to them if they must cope with too many changes all at once.

10. Dissolution of marriage often leads to financial pressures on both parents. When there is a financial crisis, the parents' first impulse may be to keep the children from realizing it. Often, they would rather make sacrifices themselves than ask the child to do so. The atmosphere is healthier when there is frankness and when children are expected to help.

11. Marriage breakdown is always hard on the children. They may not always show their distress or realize at first what this will mean to them. Parents should be direct and simple in telling children what is happening and why, and in a way a child can understand and digest. This will vary with the circumstances and with each child's age and comprehension. The worst course is to try to hush things up and make a child feel he or she must not talk or even think about what he sees is going on. Unpleasant happenings need explanation, which should be brief, prompt, direct, and honest.

12. The guilt parents may feel about the marriage breakdown may interfere in their disciplining the children. A child needs consistent control and direction. Overpermissiveness or indecisive parents, who leave a child at the mercy of every passing whim and impulse, interfere with a child's healthy development. Children need and want to know quite clearly what is expected of them. Children need leadership and sometimes authority. Parents must be ready to say "no" when necessary.

13. Do not overlook the fact that you are only human and admit it. You will not be able to make a 100 percent score on being a perfect parent (no one ever does in good or bad times). When you fail in your attempts, acknowledge it, and resolve to attempt to improve day by day.

14. Read and reread these basic guidelines. Add to them by writing down your own constructive, positive approaches to the handling of your new way of living. Discuss, when practicable, your thoughts and feelings with others you trust and feel comfortable with and benefit by sharing their positive attitudes.

Source:  DivorceNet, Suggested Guidelines for Parents During Separataion or Divorce Proceedings by Leigh Joy Carson

Divorce Tax Tips

When you are deciding on a settlement agreement with your soon to be ex-spouse, you need to consider the tax implications involved.  There is a good article at DivorceNet which lists tax mistakes people make during the process of a divorce and contemplating a settlement agreement.  These mistake tax tips are

1. Not Looking at After-Tax Cash Flow When Analyzing the Workability of a Settlement Proposal. Look at the number of lines on your tax return that change as a result of divorce:
   1. Your filing status changes from married joint to head of household (if you have at least one child living with you) or single.
   2. The number of personal deductions will be reduced by at least one – your ex-spouse (more if you agree to split deductions for dependents).
   3. Your income without your ex-spouse may put you in lower bracket and you will be taxed at a different rate.
   4. Itemized deductions such as state income taxes, real estate taxes, mortgage interest, charitable contributions, and non-reimbursed employee business expenses may affect your return differently.   
   5. Alimony is taxable and you are required to pay quarterly estimated taxes on it.
   6. The effects of AMT (alternate minimum tax) may not be changed without your spouse’s income and deductions.

2. Failing to Negotiate Dependency Deductions. In 2005, the exemption amount for each dependent is $3200. In a divorce or separation, the custodial parent specified in the agreement is entitled to the exemptions or without an agreement, the parent with physical custody gets the exemptions. The lower income parent can sign over the exemption to the higher income parent using IRS form 8332 resulting in greater tax savings to the higher income parent. For example a $3200 exemption for a person in the 31% bracket would save over $1000 while a person in the 15% bracket would save under $500. The value of exemptions starts to phase out for income above $145,950 for a person filing as single, so the exemption may only be effective for a lower earning spouse. Don’t forget to factor in the child tax credit ($1,000 for each child under age 17) and dependent care credits for up to 2 children under 13 ($960 or more).

3. Not Using IRS Code Section 72t(2)c to Get Distributions from Qualified Plans. More often then not, couples in the process of a divorce have severe cash flow problems. Income stays the same, but expenses increase dramatically because there are two households to support. Changing or downsizing one or both parties' lifestyles often requires a cash infusion to purchase, set up, or carry a second residence. Section 72t(2)c allows the alternate payee (the spouse who is not the employee) to take distributions from a qualified plan (not an IRA) without paying the 10% early distribution penalty even if they are younger then 59 ½. The distribution is still subject to income tax. If the funds are first rolled over into an IRA then the preferred distribution rules no longer apply.

4. Not Following the Rules for Alimony. Alimony is deductible to the payor and taxable to the payee. Where alimony is given there is usually a significant disparity in incomes. Alimony results in tax savings since the higher income individual is able to deduct payments at a higher tax rate while the ex-spouse pays taxes at a lower tax rate. Section 71 of the Internal Revenue Code defines certain rules for payments to be considered alimony. If these conditions are not met then the tax benefits of alimony could be revoked by the IRS.
   1. Alimony payments must be in cash, to your ex-spouse, designated in a divorce or separation agreement, and you must live in separate residences
   2. Payments must terminate on death of the recipient; alimony cannot end on dates corresponding to dependents 18th or 21st birthdays
   3. Alimony cannot be front loaded over the first three years (much larger amounts paid in the 1st year compared to the 2nd or 3rd year).

5. Disregarding the Impact of Taxes on Assets in a Divorce Settlement. The marital assets you keep after the tax man gets his share is the real bottom line. Say your spouse handles all the investments and offers to split them 50/50. Would you rather have cash in the bank, an IRA, or the Microsoft stock you bought in the early 1990s? Each of these assets is taxed at a different rate. Avoid assets that are unattractive from a tax point of view such as low-basis stocks (those that have increased dramatically since you bought them), partnerships where depreciation might be recaptured, or retirement accounts where you have to pay tax on the money you get. Look at the value of assets you will receive on an after-tax basis. Then decide if the deal is fair.

6. Failing to Take Advantage of the Full $500,000 Home Exclusion. Married couples are allowed up to $500,000 in profits tax free from the sale of their principal residence. Formerly, a spouse who moved out as a result of divorce lost his $250,000 deduction because it was no longer his principal residence, but thanks to a change in the tax law an ex-spouse can now retain that exclusion. To qualify, the spouse who moved out must remain an owner and the divorce or separation agreement must grant him use of the home. The ex-spouse must have lived in the home for two years at any time prior to the sale. If these rules are not followed, the spouse selling the residence will only be able deduct a $250,000 gain and will have to pay tax on the second $250,000. Capital gains tax on $250,000 is $37,500 and state income taxes may also apply. If a spouse who is the sole owner remarries, the new spouse must live in the house for two years to qualify for the full $500,000 exclusion. 

7. Not Writing Off the Cost of Your Divorce.  The portion of the cost of your divorce which relates to tax and financial advice is deductible on Schedule A of form 1040. To substantiate this deduction you should obtain a statement from your attorney or mediator delineating the cost of legal services and the amount attributable to tax and financial advice. Normally the deductible portion of your divorce runs from 1/3 to ½ of the total cost. In order to deduct legal fees, you must be filing Schedule A (Itemized Deductions) and your deductible divorce fees must be greater than 2% of your income.

Ask your attorney about these mistake tips.  If your attorney isn't a tax attorney, he or she can consult with a tax expert and obtain the answers or you can consult with your own accountant to determine specifically how the terms of the proposed settlement agreement will affect you.

Source:  DivorceNet's Seven Tax Mistakes in Divorce by Lee Slater, Divorce Financial Planner

Link of the Day

Last month I was honored to be the "Link of the Day" at Robert Kraft's P.I.S.S.D. blog.  Here is the article:

Link of the Day - Missouri Family Law Blog and Missouri Criminal Defense Lawyer Blog

For the month of March, I am going to use my Link of the Day feature to highlight legal blogs that I think are interesting and useful. Some may not be directly related to personal injury or Social Security disability law, but all of us who represent injured and disabled people occasionally need help in other areas. Today's entry in March of the Blogs:

Missouri lawyer Penny J. Umstattd-Cope is the owner of The Umstattd-Cope Law Firm, LLC, in Joplin, Missouri. She keeps busy writing both the Missouri Family and Divorce blog and the Joplin, Missouri Criminal Defense Lawyer Blog.

The criminal defense blog features "Missouri Criminal Law Articles on DWI, DUI, Domestic Violence, Misdemeanors, Felonies, Juvenile, Traffic Violations and Tickets, Law Enforcement Interviews and Questioning" while the family law blog features "Missouri family and divorce law articles: Divorce/Dissolution/Modifications Child Custody/Support/Visitation Paternity/Adoption/ Wills & Estate Planning."

Penny was an assistant prosecuting attorney and an assistant appellate public defender before leaving for private practice.

Source:   Bob Kraft's P.I.S.S.D. on March 11, 2007

For the month of March, I am going to use my Link of the Day feature to highlight legal blogs that I think are interesting and useful. Some may not be directly related to personal injury or Social Security disability law, but all of us who represent injured and disabled people occasionally need help in other areas. Today's entry in March of the Blogs:

Missouri lawyer Penny J. Umstattd-Cope is the owner of The Umstattd-Cope Law Firm, LLC, in Joplin, Missouri. She keeps busy writing both the Missouri Family and Divorce blog and the Joplin, Missouri Criminal Defense Lawyer Blog.

The criminal defense blog features "Missouri Criminal Law Articles on DWI, DUI, Domestic Violence, Misdemeanors, Felonies, Juvenile, Traffic Violations and Tickets, Law Enforcement Interviews and Questioning" while the family law blog features "Missouri family and divorce law articles: Divorce/Dissolution/Modifications Child Custody/Support/Visitation Paternity/Adoption/ Wills & Estate Planning."

Penny was an assistant prosecuting attorney and an assistant appellate public defender before leaving for private practice.

Civility Standards for Family Lawyers

Have you ever noticed that some attorneys are just downright rude to the other attorneys?  I have and apparently others have too.  It is not very pleasant to see or to be on the receiving end.  The American Bar Association's Section of Family Law has decided to do something about this problem.  It has adopted the Civility Standards.  These Standards address the responsibility of family lawyers to be civil to clients, to their opposing counsel, and to the Court itself.  Why any lawyer would not be civil to the Court is beyond me, but it happens.  The Standards are:

I. To Client

1. Treat the client with respect.
2. Try to keep the client on an even emotional keel and avoid characterizing the actions of the other party, opposing lawyers, and judicial officials in emotional terms.
3. Be aware of counseling resources and be prepared to refer the client to counseling where appropriate.
4. Where a client has an exaggerated or unrealistic view of his or her options in any given situation, explain matters as carefully as possible in order to assist the client to realistically assess the situation.
5. Respond promptly to client requests for advice or information.
6. Consider the availability and appropriateness of forms of alternate dispute resolution.
7. Where a client wishes to pursue a claim or motion for purely hostile or vindictive purposes, explain to the client the reasons why the client should not do so.
8. Do not assist a client in pursuing a claim for primary custody or visitation where the purpose of the claim is to obtain bargaining leverage in order to achieve a purely economic objective.
9. Avoid any communication to client about the judge, the other lawyer, or the other party that will contribute to disrespect for the legal process.
10. Encourage clients to comply with all court orders.

II. To Opposing Counsel

1. Be honest in all communications with opposing counsel. Do not intentionally misrepresent any factual or legal argument.
2. Be respectful and courteous in all oral and written communications with the opposing side.
3. Do not engage in conduct, oral or written, that promotes animosity and rancor between the parties or their counsel.
4. Use a demeanor and conduct during a deposition or other out-of-court meeting that would be no less appropriate than it would be in the courtroom.
5. Do not engage in harassing or obstructive behavior.
6. Honor reasonable requests for routine extensions of time, unless a client’s position will be adversely and materially affected.
7. Confer in good faith with opposing counsel on scheduling matters.
8. Do not utilize the manner of service of pleadings or discovery requests to disadvantage the opposing counsel.

III. To the Court

1. Act with complete honesty; show respect for the court by proper demeanor; and act and speak civilly to the judge, court staff and adversaries.
2. Avoid frivolous litigation and non-essential pleading in litigation.
3. Explore settlement possibilities at the earliest reasonable date, and seek agreement on procedural and discovery matters.
4. Avoid delays not dictated by a competent and justified presentation of a client’s claims or defenses.
5. Strive to protect the dignity and independence of the judiciary, particularly from unjust criticism and attack.

These Standards are a good start.

Source: South Carolina Family Law Blog; Domestic Diversions; Georgia Family Law Blog

Proposed Legislation - Another Safety Measure Against Sexual Offenders

The Jefferson City News Tribune today included an article regarding proposed legislation by Rep. Ward Franze from West Plains, Mo. that would allow a new special code to be included on the front of driver's licenses issued to convicted sexual offenders.  This new code would identify the driver as a sexual offender, just like codes now identify restrictions on the licenses (eyeglasses, not after dark, etc).  Supposedly it would also allow law enforcement officials to keep better track of the offenders.  This legislation needs one more vote before it can be sent to the Senate.  The bill number is HB224 and can be reached by going to the government website. 

Source:  Jefferson City News Tribune, 04/04/2007, Sex offenders' licenses would be marked under bill

Guardian ad Litems

Tonight I am going to voice an opinion about other attorneys.  I'm talking about attorneys that have been appointed as guardian ad litems (GALs) to represent children in divorce, custody, juvenile, or probate cases.  The way some of these GALs represent the children, or rather do not represent the children, bothers me.  Let me give an example of what bothers me.  Recently I received a call from a father whose daughter was in trouble with the Juvenile Office for skipping school and classes and a few minor items.  There was to be  a hearing the next afternoon to determine whether the daughter stayed with him or left the state with her mother.  Since the father called right when I was leaving the office for another appointment I had to meet with him the next morning.  Normally I do not take cases on such short notice but I did not like what I was hearing.  I met with the father and it was agreed that we would try to get a continuance on the hearing and, if that was not possible, I would do my best with the little information he had and the evidence that was presented in court.    At the hearing the continuance was denied so we went forth with what we had.  The hearing turned out well for my client and his daughter but I left the hearing disturbed by the GAL.  This GAL had never spoken with my client or the daughter (the one the GAL was appointed to represent), never asked a question at the hearing, and yet she recommended to the court that it follow the Juvenile Office's recommendation.  I am disturbed by this because this GAL did not do her duties to the child and should not have been making any recommendations to the court.  If this had been the one and only time I have seen this happen, maybe it would not have bothered me so much.  It was not the first time and it is becoming more and more the norm from what I am seeing.  I would like to see something done to remove these GALs that do not do their duties and to get more attorneys to do what they have been appointed to do.

I approached this subject on a list serve that I belong to.  Turns out that other attorneys have noticed the problem with the GALs and they made several suggestions to try to combat the problem.  Some, however, pointed out that the GALs do not make much money and perhaps we shouldn't expect that much from them.  To this I say - bull-hockey!  I have been in practice for almost 17 years and I have been appointed GAL in just about every type of case that there is need for one.  I have lost tons of money from not being paid for the time I have put into a case or from not receiving an hourly rate from the court that equals my usual rate.  Do I think this excuses me from my duty to a child to independently investigate the matter and report to the court what I think will be in the best interests of the child?  Not on any day of the week.  My duty is to that child and if I can't do what needs to be done to make a well-informed, knowledgeable report to the court, then I do not need to be representing that child.  Who needs my knowledge and skills as a lawyer more than a child?  Who needs to be protected more than a child?  I may lose money on being appointed as a GAL, but if I do my duty to that child and investigate the matter, then I will sleep well at night knowing I did what I could to keep that child protected from whatever evils caused a GAL to be appointed.

I was discussing the case I mentioned earlier with another attorney.  This attorney does a lot of GAL work.  In fact that is about all the attorney does.  I made mention that the GAL in this case had never talked to the dad or even to the daughter whom the GAL was appointed to represent.  This attorney told me he/she does not normally talk to the child or the parents unless they show up at meetings at the juvenile office or child services  that the attorney is scheduled to  attend.    I guess if there are no meetings scheduled the attorney does not speak with them.  Where is the independent investigation in this?  All the attorney is hearing is one side.  Do I want this attorney to be the GAL in one of my cases?  A definite no.  It's my understanding that this attorney makes money by being appointed to several cases that will be heard on one day, kind of like a cattle call.  If this attorney does not independently investigate the matters and shows up for the hearings to make the recommendation to the court, I'd call that easy money.

So what do we do to change the way these GALs represent the child?  For one, start disqualifying the ones that do not do their duties to the child.  If you are represented by counsel your attorney should have a general knowledge of the attorneys that make good GALs and the ones that do not.  If an attorney has been appointed as a GAL in your case and you or your attorney know that this attorney will not do his or her duties, disqualify that attorney.  Each party has the right to one automatic disqualification of a GAL if done within ten days of the appointment.  After that you will need to disqualify the GAL for cause, including the GAL not doing his or her duty to the child. 

What are these duties that I have been discussing?  The Missouri Court of Appeals, Western District, had this to say about GALs and the duties involved:

Davis v. Schmidt, 210 S.W.3d 494 (Mo.App.W.D. 2007) :

Allocation of Guardian Ad Litem Fees to the Parties
[19] As stated supra, because Father made allegations that Mother had abused and neglected Emma, the trial court appointed attorney Brad Grill FN13 as Emma's guardian ad litem pursuant to section 452.423.2, RSMo Cum.Supp.2004. “The philosophy underlying the statute is that where abuse or neglect is alleged, the child has rights independent of either of the parents, and these rights are entitled to representation.” Taylor v. Taylor, 60 S.W.3d 652, 655 (Mo.App. E.D.2001) (emphasis added).

FN13. Mr. Grill filed a motion to be added as a party to this cause on appeal, which this court sustained on June 27, 2005.

[20] [21] [22] [23] [24] “The role of the guardian ad litem involves more than perfunctory and shadowy duties.” In the Interest of J.L.H., 647 S.W.2d 852, 861 (Mo.App. W.D.1983). Rather, a guardian ad litem serves as “the legal representative of the child at the hearing, and may examine, cross-examine, subpoena witnesses and offer testimony.” Section 452.423.3(1), RSMo Cum.Supp.2004 (emphasis added). “The guardian ad litem also has a duty to conduct all necessary interviews with people having knowledge or contact with the child, and he may interview the child if appropriate.” Baumgart v. Baumgart, 944 S.W.2d 572, 578-79 (Mo.App. W.D.1997); see also Section 452.423.3(2), RSMo Cum.Supp.2004. A guardian ad litem's principal allegiance is to the court, and his function is to advocate what he believes to be the best interests of the child by providing the court requisite information bearing on those interests untainted by the parochial interests of the child's parents. Guier v. Guier, 918 S.W.2d 940, 950 (Mo.App. W.D.1996); In re Marriage of Patroske, 888 S.W.2d 374, 384-85 (Mo.App. S.D.1994). “Even though the court is not bound by the opinion or recommendation of the GAL, it is imperative that the guardian ad litem investigate and have input on the perspective of the child's best interest and [that] this be presented to the trial judge.” Portwood-Hurt v. Hurt, 988 S.W.2d 613, 619 (Mo.App. W.D.1999) (emphasis added) (internal quotation marks and citation omitted). In fact, given the nature of Father's multiple allegations of abuse and neglect and the extensive testimonial, documentary, photographic, and videographic evidence he adduced at trial to support them, “this case begged for careful consideration by the appointed guardian ad litem.” Keling v. Keling, 155 S.W.3d 830, 834 (Mo.App. E.D.2005).

Despite this, the record demonstrates that the trial court received no meaningful evidence from the guardian ad litem. The guardian ad litem was concerned enough about the situation that he moved to intervene as a party to this appeal. He has also filed with this court a report he prepared concerning the allegations below, but we are unable to consider it because it was not presented to the trial court. Despite the fact that the guardian ad litem has the statutory right, under section 452.423.3(1), RSMo Cum.Supp.2004, to offer trial testimony as the legal representative*510 of the child, the record reveals that the trial court never heard from Mr. Grill about the abuse and neglect issues in the case except for only a few minutes just before the close of all the evidence.FN14

FN14. Mr. Grill used the “couple minutes” he was allotted by the trial court to briefly outline the services he had performed as Emma's guardian ad litem, as well as to inform the court as to the number of hours he had spent working on the case (32) and his normal hourly rate for such services ($150).

The only specific factual findings the trial court actually made in this case directly supported Father's claims of neglect. The trial court expressly found that Mother “has in her home 2 dogs that are incontinent and cause a health hazard.” This finding, as well as the court's judgment ordering Mother to remove both dogs from her home and further providing that they “may no longer be permitted inside the home whatsoever,” were supported by extensive and entirely unrebutted testimonial, video, and photographic evidence presented by Father at trial, which showed, among many other things, that: (1) the hair of Mother's two large breed dogs was matted with urine and fecal matter; (2) there were animal urine stains and acid burns located throughout Mother's home, including around Emma's diaper hamper and on other items in her bedroom; (3) Mother's home smelled strongly of animal urine and feces; and (4) there were clumps of dog hair and dander on the floors throughout Mother's home. Furthermore, the Chief Deputy Juvenile Officer for Platte County, Mark Lindsay, who had been appointed by the court to evaluate custody issues, testified at trial that had Mother's home been as depicted in the photographs when he made his home visit in April or May 2004, he would have been required, as a mandatory reporter of abuse and neglect, to make a call to the Missouri Child Abuse Hotline. Mr. Lindsay further testified he had serious concerns about the unsanitary conditions in Mother's home, specifically including animals urinating and defecating on the floor and the presence of animal hair and dander on the floor. The trial court also found that a home inspection conducted by Father's witness, civil engineer Frank Comer, on January 11, 2005, revealed that “certain natural gas lines in [Mother's] home are made of copper and that an electrical line located in the kitchen was not enclosed in conduit,” thereby presenting additional safety hazards. For this reason, the court's judgment required Mother to repair and/or remedy these hazardous conditions by replacing “any current gas lines made of copper in her home with black pipe or other building code compliant material,” as well as to “place in a proper electrical conduit the ... kitchen electrical power line or cord.”

On remand the trial court shall reopen the record and receive substantive evidence from Mr. Grill before rendering its new judgment. See Tipton v. Joseph-Tipton, 173 S.W.3d 692, 694 (Mo.App. W.D.2005); In re Marriage of Mihalovich, 659 S.W.2d 798, 801 (Mo.App. W.D.1983); Hughes v. Bd. of Educ., 599 S.W.2d 254, 256 (Mo.App. S.D.1980).

I think the quote above spells out the duties of GALs very well and much better than I could.  I'd like to thank my fellow attorney, Dan Pingleton, for providing the above quote to me.  Please note these duties and the next time you have a GAL that does not do his or her duties, move to disqualify him or her and request one that will.

What else can you do?  Complain to the presiding Judge in your circuit about the GALs that do not do their duties to the children they are appointed to represent.  After enough complaints the judges may start changing the way they appoint GALs or stop appointing the ones that are not performing their duties.  When you are complaining to the presiding Judge about a specific GAL or GALs in general, also mention in your letter or conversation that maybe the  court should increase the hourly rate or pay for GALs and set better guidelines for seeing that their fees are paid.  And, if you have been ordered by a court to pay a GAL in your case, please see that you do. 

I want to make it clear that not all GALs are bad.  They are some very good ones out there.  My office mate is one who takes his duties very seriously.  If you get one that you know has worked hard on the case to represent your child, no matter how the Judge rules in your case, thank the GAL and let him or her know that you appreciate all the hard work and time that was put into the case.  Remember, the GAL might be just as frustrated with the Judge's ruling as you are.  A thank you can go a long way.

Source:  my experience

Should a Father Regain Custody of a Child When Convicted of Felony Offenses Against Another Child?

If a parent was convicted of sexual abuse, sodomy and rape of two children, ages 5 and 6, before the effectiveness of a statute that would prevent the parent from being reunited with his child or having his child placed in his home because of the conviction, would you want this statute to be applied to the parent?  Recently a case that involved  section 211.038 (Cum. Supp. 2004) was transferred to the Missouri Supreme Court to decide the issue of whether this statute should be applied retroactively.  In In the Interest of A.S.W. the Eastern District of the Missouri Court of Appeals decided that the general interest and the importance of this question should be decided by the Supreme Court of Missouri.

The background of this case is:  in 1998 A.S.W. was born.  His biological father suffered a brain injury from a fall at work in 2000 and had to spend time in rehabilitation.  In 2001 the juvenile office filed a petition to take jurisdiction and custody of A.S.W. because of neglect by the mother.  The juvenile court decided that the father was in no condition physically or mentally to be able to take care of A.S.W. at that time.  In 2002 the juvenile office petitioned to have the parental rights of both parents terminated.  The juvenile court did so.  The father thereafter appealed and the Missouri Supreme Court reversed the termination as to the father because the state had failed to present substantial evidence that additional services would not facilitate the return of A.S.W. to the father.  Thereafter the father filed a petition for writ of habeas corpus and alternative motion to modify the legal and physical custody of A.S.W.  At the same time the foster parents of A.S.W. filed their petition to obtain guardianship of A.S.W. and to change his name.  The juvenile court consolidated these two actions and ruled against the father and in favor of the foster parents.  The father appealed on four different grounds. 

The father alleged in the first ground that the juvenile court failed to follow the Missouri Supreme Court's mandate that A.S.W. be returned to his custody.  The appellate court determined that the Supreme Court did not mandate that the custody be returned to the father, only that the trial court should consider whether additional services could be provided so that the child could be returned to the father.  The trial court heard evidence from several psychologists that the father could not independently care for A.S.W. and that his sister, with  whom the father was living with, did not believe the father needed supervision.  The father also testified that he planned to move out of his sister's home and into one with just him and A.S.W.  The appellate court ruled that the trial court did follow the Supreme Court's order.  The second ground was that the juvenile court's jurisdiction was no longer proper.  The appellate court quickly ruled against the father on this ground because he had  consented to the jurisdiction of the juvenile court when the initial proceedings started.  The fourth ground by the father was that the ruling for the guardianship was against the weight of the evidence.  Based upon all the evidence that the trial court heard, the appellate court determined that there was substantial evidence for this ruling.

The third ground of the father and the one involving section 211.038 is the one that the transfer to the Missouri Supreme Court was made on.  Section 211.039, RSMo (Cum. Supp. 2004) prevents a child from being reunited or placed in the home of a parent who has been convicted of certain felony offenses where a child was involved.  In 1986, before the effective date of this statute, the father pleaded guilty to two counts of sexual abuse in 1st degree, one count of sodomy, and one count of rape.  These charges involved the father's nieces, ages 5 and 6.  The sodomy and the sexual abuse convictions are included in the felonies listed in the statute.  The trial court mentioned this statute in ruling against the father and the father argues that this statute should not be applied retroactively to him.  The appellate court found that the trial court did not rely solely upon this statute in denying the father custody of A.S.W.  The trial court found that the father was unfit and unable to assume duties of guardianship, that A.S.W. would suffer emotional harm if removed from his present home, that the father's physical and mental conditions prevented him from being able to handle A.S.W.'s needs that would result from the emotional harm, that A.S.W. started suffering from nightmares and behavioral changes after the visits with father resumed in 2005, and that several psychologists testified that the father could not independently care for A.S.W.  These findings were enough to rule against the father obtaining custody of A.S.W. but because the trial court mentioned section 211.038 in its determination, the appellate court considered  whether this statute should be applied retroactively.  It determined that it has been applied retroactively at least one time before in In re T.M.E., 169 S.W.3d 581 (Mo. App. 2005), and it agreed with this decision.  The appellate court determined that the trial court properly applied this statute to the father but because of the general interest and the importance of the question, it transferred the case to the Missouri Supreme Court for its decision on the retroactiveness of section 211.038.   It could be many months before the Supreme Court issues its decision.

Source:  In the Interest of A.S.W., ED88382, (Mo. App. E.D. 03/06/2007)

Case Review - Disqualification of GAL Absolute Right

In State ex rel. Dreppard v. Jones the Eastern District Court of Appeals stated that in a modification action,  if a party timely files his or her motion to disqualify the guardian ad litem (GAL) under section 452.423.1, that party has an absolute right to the disqualification.  In this case Dreppard filed a motion to modify the dissolution judgment.  The trial court "re-appointed" the same GAL to represent the children that had been in the dissolution hearing.  Dreppard timely filed his motion to disqualify this GAL and the trial court denied the motion stating that the GAL appointment was a continuing one from the dissolution action.  Dreppard filed a writ of mandamus to compel the trial court to disqualify the GAL in the modification action.  The appellate court stated that the modification action was independent from the dissolution proceeding and if timely filed, a party is entitled to one disqualification of a GAL under section 452.423.1.  Dreppard had timely filed his motion and the appellate court ordered the trial court to grant Dreppard's motion to disqualify the GAL.

In deciding this issue the appellate court looked at the change of judge issue in modifications.  It found that the legislature had determined that modification proceedings were independent actions and provided that a party in a modification action is entitled to a change of judge under the same rules that allow for a change of judge in other cases. 

Source:  State ex rel. Dreppard v. Jones, ED89214, (Mo. App. E.D. 03/06/2007)

Case Review - Termination of Parental Rights

Is it right to terminate a mother's right to her child when she is not the cause of his behavioral problems?  This was the issue in In the Interest of B.T.  B.T. had severe behavioral problems which included head-butting, growling and jumping out of moving cars.  He was placed in foster or residential care since February 2002.  When he was released from a behavioral care facility his mother refused to take custody of him because she believed she could not take care of him.  He was then placed into a residential care facility.  Mom entered into a service plan whereby she was to visit B.T., provide financial support for him, and participate in parenting classes and therapy.  Additional services were ordered in June 2003, October 2003, February 2004, October 2004 and January 2005.  She was still not able to care for B.T. after all the services had been provided.  The juvenile court sought to terminate her parental rights in April 2005.  From May 2005 to June 2006 the mother had not seen B.T., communicated with him, or provided financial support for him.  The court made findings that included that although the mother was not responsible for B.T.'s behavior, she must be able to care for him.  The court terminated the mother's parental rights and she appealed on the grounds that there were not clear, cogent and convincing evidence to support the termination.

The appellate court found that the trial court was correct in terminating the mother's parental rights under section 211.447.  It specifically found that the mother had abandoned B.T. by not visiting with him, communicating  with him, or providing financial support for him for the period of May 2005 to June 2006.  She also neglected him by refusing his custody when he was initially released from the  behavioral facility, by visiting infrequently and failure to communicate and provide for his support for over a year.  The appellate court also found that even though the mother had complied with the service plan and had exhausted all available social services, she was still unable to care for B.T. and she must be able to do that.  The mother had failed to rectify the situation regarding her care of B.T.  The termination of her parental rights was upheld.

Source:  In the Interest of B.T., ED88445, (Mo. App. E.D. 03/06/2007)