Missouri Family and Divorce Lawyer Blog

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.

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. 

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

   

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

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

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