Change of Custody Affirmed

Happy african american dad embracing daughter cuddling at home

In a recent Missouri divorce case involving a minor child, The Missouri Court of Appeals held that a court cannot grant a final divorce until it has addressed the custody of the child. All orders affecting a minor child must be in the child’s “best interests,” a subjective standard that is mostly left to individual judges’ discretion. Once a court has issued a custody order, it cannot modify it without evidence that circumstances for the child or a parent have changed, and that a new custody arrangement would be in the child’s “best interests.” An appellate court in Kansas City recently ruled on a parent’s appeal of an order modifying custody of their child. The court affirmed several changes in the custody arrangement. The ruling in Prevost v. Silmon demonstrates the kinds of circumstances that a court might find to justify a change in custody.

Custody Rights in Missouri Divorce

Missouri law identifies two types of custody rights:

  • Physical custody involves the right to have a child reside or spend a significant amount of time with a parent.
  • Legal custody consists of the “decision-making rights, responsibilities, and authority” over a child, particularly with regard to the child’s “health, education and welfare.”

A court can grant joint physical and legal custody to the parents in a divorce or custody proceeding. Parents with joint custody are typically expected to consult with one another on decisions about the child, and to have substantial, if not necessarily equal, parenting time with the child.

Courts can also limit custody rights by granting sole legal custody to one parent while they retain joint physical custody. A court could also grant sole physical custody and joint legal custody.

Missouri law presumes that having regular access to both parents after a divorce is in a child’s best interest. A parent who wants to limit another parent’s access to a child must overcome this presumption, such as by producing evidence of abuse or neglect.

Modification of Custody After Divorce

Once a court has issued a custody order affecting a child, that court can continue to exercise jurisdiction over that child as long as the child continues to reside in Missouri. A parent who wants to modify the custody order can file a motion to modify in that court.

Modification of a custody order requires three elements:

  1. The parent seeking to modify the order (the “movant”) has evidence that was not available when the court issued its earlier order.
  2. The new evidence shows that “a change has occurred in the circumstances of the child” or a parent.
  3. The modification requested by the movant “is necessary to serve the best interests of the child.”

A parent moving to a new state is automatically considered a change in circumstances. An out-of-state military deployment by a parent may lead to temporary modifications to the custody order for the duration of the deployment.

A parent relocating within Missouri, however, is not a change in circumstances that, by itself, merits modification of custody. Failure to follow the existing custody order is also not enough of a change in circumstances. As discussed below, evidence of parents’ inability to work together for the child’s benefit could be enough to justify modifying joint legal custody to sole legal custody.

Challenging a Custody Modification

The parents in Prevost were married in 2013, and their child was born the following year. They were divorced in 2018. The parents shared joint physical and legal custody of the child. The parenting plan called for them to exchange the child every six weeks until the child started school.

According to the appellate court’s ruling, the mother began to withhold custody from the father in mid-2019. The father filed a motion to modify custody, and the mother filed a counter-motion. After a trial, the court found that it would be in the child’s best interest to maintain joint physical custody and award sole legal custody to the father. It made findings of fact with regard to the eight factors identified by Missouri law for child custody determinations and concluded that they weighed in favor of the father. It adopted the parenting plan proposed by the court-appointed guardian ad litem (GAL).

The mother raised several points on appeal. She argued that the decision to award sole legal custody to the father was “against the weight of the evidence,” that the trial court should not have followed the GAL’s parenting plan, and that the court did not apply the eight custody factors appropriately. The appellate court dismissed all of her arguments.

The court noted that, under Missouri law, a court awarding sole legal custody must find that the parents do not display:

  • “A commonality of beliefs concerning parental decisions” or
  • “The willingness and ability to function as a unit in making those decisions.”

It found that the mother, while objecting to an order granting sole legal custody, made the case that sole legal custody was appropriate by arguing that she and the father “were unable to function as a unit.”

Mark A. Wortman is a family attorney in Kansas City, Missouri. He has dedicated his entire practice to representing people in difficult family law matters like divorce and child custody disputes. To schedule a confidential consultation to discuss your case, please contact us today online or call (816) 523-6100.