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August 9, 2006
Case Law Development: Standard for Minor Modifications of Joint Physical Custody Arrangements
The Court of Appeals of Missouri worked through a nice little problem of statutory construction in a case that would provide a wonderful vehicle for class discussion of custody modification standards. (The case also provides yet another reason why statutes should speak in terms of "parenting time" rather then joint custody or sole custody + visitation). Missouri's child custody statute provides that a change in custody requires proof that "a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child." Caselaw requires that the change in circumstances be "substantial." However a separate statute provides that a court "may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child."
The courts of appeals of Missouri have split on how to interpret these two statutes. The Southern District holds that the more lenient BIC standard should apply to any minor change in custodial arrangements while the Western District prefers the bright-line test of applying the more strict standard to any change in a joint custody arrangement and reserving the BIC standard only for changes in what is denominated as visitation in the original decree. Here, the Eastern District noted the split of authority and the costs and benefits of each district's approach. (See further reading below for excerpts) While agreeing with the Western District's bright-line test because of the benefit of predictability and ease of administration, the court transferred the decision to the Missouri Supreme Court.
The case also has some interesting facts regarding what income to include in calculating child support -- overall a nice case to construct into a class problem.
Russell v. Russell, 2006 Mo. App. LEXIS 1186 (August 8, 2006)
Opinion on the web (last visited August 9, 2006 bgf)
One problem with the Southern District approach is the lack of a bright line test, which could lead to confusion and inconsistency from case to case. Under the Southern District approach, a trial court would be forced to decide whether the modification it wants to make is significant, drastic, or something less before it could determine what standard of proof to apply to the evidence. We agree with the Western District that this approach is impractical or illogical because it leaves the determination of what standard of proof to apply until the end of the case.
There is also the possibility of an illogical result when the Western District approach is applied. For example, a joint custodial parent who seeks only a minor modification of his parenting time would have to prove a substantial change in circumstances, while a parent with visitation rights seeking a major modification of his parenting time would only have to prove such a change would be in the best interests of the child.
Nevertheless, because the Southern District approach leaves the determination of whether to apply section 452.410.1 or section 452.400.2 until the end of the case, we find that the Southern District approach is less desirable than the Western District approach. For this reason, we agree with the Western District that if the original dissolution judgment characterizes a physical custody award as joint physical custody, then an attempt to modify the time that either parent has a child under his or her care and supervision is an attempt to modify custody, requiring the application of section 452.410.1. Accordingly, we find the trial court erroneously declared Baker to be the law.
We will now discuss when a trial court's physical custody award is properly characterized as "joint physical custody." Section 452.375.1(3) defines "joint physical custody" as "an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents." Section 452.375.1(3). Consequently, when a court's order awards significant periods of time where the child is under the care and supervision of each of the parents, the award is one of joint physical custody, regardless of what terminology the court used to designate the award. If a trial court erroneously designates an order awarding significant periods of time where the child is under the care and supervision of each of the parents as an award of sole physical custody with visitation rights to the other parent, the party awarded visitation rights may request an appellate court to modify the dissolution judgment so that it is designated as an award of joint physical custody. A court's order awarding one parent custody of the child 57 percent of the time and the other parent custody of the child 43 percent of the time is an award of joint physical custody.
(Citations and quotation marks omitted)
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