Missouri Courts Cannot Use Child Custody as a Reward or Punishment for Parents

Even when parents in a Missouri divorce are able to agree on a custody plan, a family court judge must confirm that it is in “the best interests of the child” and meets all other requirements of state law. Once a judge signs a custody decree, state law says that a court cannot modify it unless the child’s circumstances have significantly changed. Any changes must be, in the court’s judgment, in the child’s best interest. Child custody disputes can get highly unpleasant, or even downright nasty. Missouri law is very clear that neither custody decrees nor modifications of custody decrees can serve as a punishment against a parent for bad behavior. They also cannot be a reward for a parent’s good behavior.

Best Interest of the Child in Missouri

The term “best interest of the child” has no specific definition. It is ambiguous on purpose, because family court judges must be able to make a determination based on the unique circumstances of each case. Section 452.375.2 of the Missouri Statutes establishes the principle of the best interests of the child. It sets out a non-exhaustive list of eight factors that courts should consider when evaluating a proposed custody plan.

A court should consider all eight factors, but is not limited to those eight in making a decision. The listed factors include:

1. Each parent’s “ability and willingness...to actively perform their functions...for the needs of the child”;
2. The likelihood that either parent “allow the child frequent, continuing and meaningful contact with the other parent”;
3. The possibility that a parent will “relocate the principal residence of the child”;
4. The child’s connection to their current “home, school, and community”;
5. The child’s relationship with both parents, siblings, other family members, and other people involved in the child’s life;
6. The “mental and physical health” of the parents and the child, along with any history of abuse;
7. The parents’ wishes regarding custody and parenting; and
8. The child’s wishes regarding custody.

These factors relate to several issues that commonly arise in child custody disputes. The ability of a parent to perform parental functions is often the subject of debate in these cases. Courts must look at more than just which parent does a better job at certain parental roles, like driving children to school, packing lunches, or helping with homework. Fostering ongoing and meaningful relationships with both parents is also a critical role. Section 452.375.4 makes this the public policy of the state of Missouri. A parent may try to interfere with a child’s contact with the other parent, such as by disparaging or “bad mouthing” the parent to the child, keeping the child occupied during times when they could contact the other parent, or directly preventing the child from contacting the parent.

The possibility of moving away is also an ongoing concern, especially as people and jobs become increasingly mobile. If one parent has primary physical custody of a child, the other parent may still be able to object if they intend to move with the child. The children’s interest in keeping the same school and group of friends is a significant consideration.

Modification of a Child Custody Decree

Section 452.410 states that courts “shall not modify a prior custody decree” unless certain conditions are met. A court that has jurisdiction over a child can only modify an existing custody decree when:

1. Circumstances have changed for “the child or his custodian”;
2. These changed circumstances are supported by facts that either “have arisen since the prior decree” or “were unknown to the court at the time of the prior decree”; and
3. “[M]odification is necessary to serve the best interests of the child.”

This is a difficult burden of proof, and much like the ambiguity of the term “best interests of the child,” this is deliberate. Missouri’s public policy is to encourage stability for children of divorced or otherwise estranged parents, and to discourage haphazard changes in their living situations.

Modification as “Punishment”

In a 1985 decision, Bashore v. Bashore, the Missouri Court of Appeals for the Western District found it to be “axiomatic...that custody is not to be a reward or punishment of either parent.” Instead, the court held that all custody decisions must “be based on the ultimate and sole test of what will be in the best interests of the children.” This part of the Bashore decision came up in a 2017 ruling by the same court, Moyers v. Lindenbusch.

The mother in Moyers appealed a trial court judgment that granted the father’s motion to modify their custody decree, awarding him sole legal and primary physical custody of their three children. She argued that the trial court improperly granted the modification because it disapproved of her lifestyle, describing her as being in a “polyamorous or polygamous relationship.”

After her divorce from the children’s father, according to the court, she had moved out of state with the children. They moved in with a married couple and their children. Several months later, the couple divorced, but the wife did not move out of the home. The mother married the husband a month after that. Almost three years later, the mother informed the father that she intended to move again, to a different state even further away from Missouri. The father filed a motion to modify custody in response.

At trial, the father presented evidence that the mother had fabricated an out-of-state job offer to get him to agree to her first move after the divorce. The supposed job was on a ranch owned by the mother’s new husband, and the offer letter was signed by his ex-wife. The job never actually existed, the father claimed. He also alleged that the mother did not cooperate in co-parenting and prevented the children from communicating with him. The alleged interference included refusing to allow the children to call him and cancelling one child’s email account to stop the child from writing to him. The trial court granted the father’s requested modification.

The appeals court affirmed the trial court’s ruling, finding that the lower court had valid reasons for the modifications that were not related to approval or disapproval of the mother’s alleged relationship status. In a footnote to its decision, the appeals court described how both parties used the terms “polygamous” and “polyamorous” interchangeably during trial. The two terms are not exactly synonyms of each other. The court declined to attempt to define them any further, though, because it concluded that it was not relevant. The lack of cooperation with the father, the interference with communication between him and the children, and the lack of honesty about her work were enough to merit modification. The court stressed that this was not punishment of the mother. Rather, the decision was merited by the factors set forth in § 452.375.2.

Mark A. Wortman is a family law attorney in Kansas City, Missouri whose exclusive focus is on child custody cases, divorce, and other family law matters. To schedule a confidential consultation with a knowledgeable and skilled legal advocate, please contact us today online or at (816) 523-6100.