Wednesday, December 6, 2006

Case Law Development: Missouri Court Addresses Child's Preferences in Custody Modification Litigation

The Missouri Court of Appeals reviewed a custody modification case presenting some classic issues in custody litigation regarding a child's preferences and bonds with a sibling. The case involved a motion for change of custody of an 11-year-old son and 17-year-old daughter. For seven years, the parents had joint custody of the children, but Mother in this action sought sole custody, alleging that father was abusive to the children.  Daughter, who was pregnant at the time of the custody modification, strongly objected to living with her father.  The trial court modified the original custody order, continuing the joint custody but revised the parenting plan to provide that the children would live primarily with mother and restricting father's parenting time with daughter until he had completed counseling sessions.  Father argued on appeal that there was no substantial change in circumstances had occurred with respect to the son so as to justify a modification. However, the court found that the son's strong bond to his sister coupled with her refusal to return to her father's home were sufficient evidence of changed circumstances. At the suggestion of the GAL, the court ascertained the wishes of both children regarding custody (both preferred living with mother) through in-chambers interviews with the children. Father argued that the court's refusal to allow Father's counsel to directly question the children during their interview in chambers was reversible error, but the court of appeals disagreed, noting that Father had not objected at that time and that the attorneys could have interviewed the children directly by calling them as witnesses.  Father also alleged that the requirement that he complete anger management or counseling sessions was too vague, but the court found the condition clear, especially given that daughter was already in counseling and the order specified that completing family counseling with daughter would fulfill this requirement. The court reversed and remanded to the trial court for the trial court to fulfill the statutory requirements regarding specifying parenting time as to certain holidays and special occasions which the trial court had omitted from the plan.

In re Murphey, 2006 Mo. App. LEXIS 1830  (December 4, 2006)
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