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. 

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

   

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.

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

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

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)