|SB 0576||Modifies Custody, Visitation & Child Support Statutes|
|LR Number:||S1935.05I||Fiscal Note:||1935-05|
|Committee:||Civil and Criminal Jurisprudence|
|Last Action:||01/10/96 - Hearing Conducted S Civil & Criminal Jurisprudence Committ|
|Effective Date:||August 28, 1996|
SB 576 - This act makes numerous modifications to the custody, visitation and child support provisions contained in Chapter 452, RSMo.
452.075 et al - Chapter 452 was amended to differentiate between physical and legal custody.
452.150 - Currently, whichever party files divorce papers first in the circuit court is automatically granted temporary physical and legal custody. Therefore, the language that created this "race to the courthouse" and presumption of physical and legal custody was eliminated. Any party can still file a motion for temporary physical and legal or physical or legal custody pursuant to section 452.380, RSMo.
452.340.1 (5) - Language was added which allows the trial court to take into account physical and legal custody arrangements when awarding child support.
452.340.6 - This section was modified to add public policy language from current 452.375.4, public policy language equating the importance of enforcing child support, visitation and custody orders, and language that strongly encourages trial courts to actively enforce visitation and custody orders. In addition, an award of attorneys fees, expenses and court costs incurred in a visitation or custody enforcement proceeding is mandated.
452.340.7 - Currently, the child support guidelines do not take into account the expenses a parent incurs during periods of temporary physical custody or visitation. Therefore, language was added which requires the Supreme Court to promulgate guidelines which take into account the expenses associated with a "substantial" visitation or temporary physical custody award. In addition, the application of last session's modifications regarding child support in equal joint physical custody situations were mandated and therefore the word "shall" was substituted for the word "should".
452.340.8 - Recent case law (Taylor v. Taylor, WD 50221, Scoggins v. Timmerman, 886 SW2d 139 (MO App. WD 1994)) has held that the trial court does not have to make specific findings when child support awards deviate from the guidelines. Therefore, language was inserted which requires the trial court to "detail the specific relevant factors that required a deviation from the application of the guidelines". This language should reduce the number of appeals that contest an award of child support.
452.355.1 - This section addresses awards of attorney's fees. The "unless otherwise indicated" language was added to exempt the required award of attorney's fees contained in proposed 452.340.6 and 452.400.3 and 4. In addition, language was added which requires the trial court to take into account "the merits of the case" when awarding attorney's fees.
452.370 et al - The term "section 452.340" was added whenever Supreme Court Rule 88.01, the guidelines child support rule, was referenced in Chapter 452. This way the trial court can take into account the language of the child support statute as well as the rule when making child support awards.
452.375.1 (2) - The language "frequent, continuing and meaningful contact" was consistently used throughout Chapter 452.
452.375.1 (7) - Current law allows the trial court to consider the issue of relocation when awarding custody if a parent wishes to relocate "outside the state". However, what happens if a parent relocates 250 miles from Kansas City to St. Louis? Therefore, a new standard is proposed which allows a trial court to take relocation into account if the relocation is "a significant distance from the other parent thereby detrimentally impacting the other parent's visitation, physical and legal or physical or legal custody rights." See also 452.377, and 452.411.
452.375.5 - Language was added which makes joint physical and joint legal custody a rebuttable presumption in order to further Missouri's stated public policy of assuring "frequent and meaningful contact with both parents" after separation or divorce (see 452.375.4). The new language puts the burden of proof on the parent who opposes an award of joint physical and legal custody and not on the parent who requests joint physical and legal custody. The practical effect of the current language is that a parent's opposition to joint physical and legal custody effectively eliminates that custodial option. The new language does not mandate joint physical and legal custody awards but instead would force the parent who opposes an award of joint physical and legal custody to provide evidence to the trial court concerning why joint physical and legal custody would not be in the children's best interests.
A new subsection 2 was added which allows the trial court to award joint legal custody or joint physical custody, but not both. New subsection 2 contains the same language as current subsection 1 regarding one parent's opposition to an award of joint physical or legal custody.
452.375.8 - Currently, trial courts make custody awards that are in the best interests of the child. Language was added to this section that requires the "best interests of the children" standard in the awarding of joint custody.
452.400.1 - In order to reduce enforcement issues regarding "reasonable visitation" or "reasonable temporary physical custody" awards, language was added which requires the trial court to specifically detail "the minimum visitation or temporary physical custody rights of the parent without physical custody". It is much easier for a trial court to enforce specific visitation or temporary physical custody awards (e.g. Wednesday nights or alternate weekends) than it is to enforce the general language of "reasonable visitation" or "reasonable temporary physical custody". What is reasonable to one party may not be reasonable to another.
452.400.3 & 4 - This section was modified to require the trial court to award attorneys fees, court costs and expenses when a parent has, without good cause, violated a court order regarding visitation or temporary physical custody.
452.405 - Language was added which prohibits the legal
custodian from exercising legal custody "in such a way as to
detrimentally impact the other parent's visitation, physical and
legal or physical or legal custody rights".