In any Missouri divorce involving children, or any other dispute over child custody or visitation, decisions by the courts of this state must be in the “best interest of the children.” This is an intentionally ambiguous term. Every case is unique, and judges must make decisions based on the specific facts of each child and each family. If parents cannot communicate effectively with one another, judges must consider that when deciding on questions about custody and visitation rights. All aspects of the parents’ ability, or inability, to interact is relevant to this decision.
A 2014 ruling by a Missouri court, Keel v. Keel, established several important points about child custody disputes. First, it affirmed Missouri’s policy that custody decisions, once made, should be difficult to modify. Second, it identified a situation—direct interference by one parent in another parent’s access to the children—where modification is justified, or even necessary. Several more recent Missouri court decisions build on the Keel ruling, offering guidance on how courts might address interference with a parent’s custody rights.
The Missouri Legislature has decreed that it is in a child’s best interest to have “frequent, continuing and meaningful contact with both parents” after their divorce or separation. This statement of policy can be found in § 452.375.4 of the Missouri Statutes. It has limits, of course, which are also addressed in that section.
Issues like mental and physical health are a factor, as well as a history of domestic violence. A judge may decide that it is in a child’s best interest to limit one parent’s access, or to require a parent to seek services, such as counseling or treatment for substance abuse, as a condition of visitation. Convictions for certain criminal offenses can result in a parent being ineligible for unsupervised visits with their child, let alone custody rights.
Two factors for judges to consider when making custody determinations, identified in § 452.375.2(2) and (4), are:
Missouri law makes it clear that decisions relating to child custody will have far-reaching effects. Judges are supposed to deliberate carefully about all of the factors affecting a child’s best interest. Once a decision has been made, Missouri law makes it difficult to change the custody arrangement.
According to § 452.410.1, a court “shall not modify a prior custody decree” unless two conditions are met. Lawmakers use “shall” to indicate that something is mandatory, and “shall not” to indicate that something is prohibited. The first condition is that the court must have jurisdiction over the parties and the dispute. Second, the court must find that:
Keel involved a custody plan that awarded “primary physical custody” of the parties’ two children to the mother and gave the father regular visitation rights. Several years later, the father filed a motion to modify. He alleged that the mother was restricting his access to the children, making decisions without his input, and withholding information from him.
The trial court found that the breakdown in communication constituted “a substantial and continuing change...in the circumstances of the children and parents” that merited modifying the custody plan. It awarded custody to the father after finding that the mother’s testimony “was wholly disingenuous and lacked credibility” on multiple issues.
The Court of Appeals affirmed the trial court’s judgment, finding that “joint custody is improper” when “parents cannot communicate or cooperate.” It noted the heavy burden that a party must bear in order to modify a custody plan. It then held that the breakdown in communication between the parents is sufficient, by itself, to satisfy the “changed circumstances” requirement of § 452.410.1.
Several decisions from the Missouri Court of Appeals have cited Keel when addressing alleged interference by one parent with another parent’s custodial rights. A 2016 decision, Frantz v. Frantz, denied a mother’s appeal of a judgment granting custody to the child’s father. The trial court’s judgment included findings that the mother had “willfully interfered” with the father’s visitation rights, and had attempted “to alienate Father from Child...in direct contravention of the best interests of Child.” The appellate court quoted Keel in finding that these actions “constitute[d] a changed condition that may justify and require a modification of custody provisions.”
Another decision from 2016, Fowler v. Fowler, involved modification of a custody plan by the trial court to allow unsupervised custody by the father. The previous custody plan, to which the father had agreed, restricted him to supervised custody because of abuse allegations. The appellate court found, first, that state law regarding visitation after a finding of domestic violence did not apply. The original custody arrangement was by agreement, and therefore no formal finding ever occurred. The court then cited Keel in finding that the mother “had made efforts to alienate” the father from the child. It found that this violated both her obligations under the custody plan and the child’s best interests.
In Ndiaye v. Seye, the Missouri Court of Appeals reached a different conclusion. It affirmed the dismissal of a father’s motion to modify a custody plan. The father described an ongoing breakdown in communications with the child’s mother. The court found that this did not constitute a change in circumstances because “the evidence is that parents have not communicated particularly well at any point.” It pointed to prior court proceedings, including an earlier motion to modify, that centered around the parents’ lack of communication. Whatever interference with custody rights might have occurred was not new, according to the court, so it did not meet the “new facts” requirement of § 452.410.1.
Kansas City family law attorney Mark A. Wortman focuses his practice exclusively on child custody disputes, divorce, and other family law matters. Please contact us today online or at (816) 523-6100 to schedule a confidential consultation with a knowledgeable legal advocate.