Missouri Family and Divorce Lawyer Blog

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.