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