S0101.03I

SB 51 - This act makes numerous modifications to the custody, visitation and child support provisions contained in Chapters 452 and 454, RSMo.

452.150 et al - Chapter 452 is 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. The language that created this presumption of physical and legal custody is deleted. Either party can still file a motion for temporary physical and legal or physical or legal custody pursuant to Section 452.380, RSMo.

452.330 - The child's physical and legal custody arrangements, including the amount of time the child spends with each parent and the reasonable expenses associated with the custody arrangements, must be considered by the trial court before equitably distributing nonmarital and marital property.

452.340.1 (5) - Language is added which allows the trial court to take into account physical and legal custody arrangements when awarding child support.

452.340.5 - Parents from "intact" families are not legally obligated to support their children past the age of 18. This section, which states that in certain situations divorced parents are required to support their children up to the age of 22, is deleted because it violates the equal protection clauses of the Missouri and United States Constitutions.

452.340.5 (new section number) - This section was modified to add: (1) public policy language from current Section 452.375.4; (2) language equating the importance of enforcing child support, visitation and custody orders; and (3) language that requires trial courts to actively enforce visitation and custody orders.

Support and custody are two separate and distinct issues. Therefore, Section 452.340.5(2), which required that a noncustodial parent be current in payment of all support obligations before custody can be transferred or future support obligations can be modified, is deleted.

Lastly, an award of attorneys' fees, expenses and court costs incurred in a visitation or custody enforcement proceeding by the prevailing party is mandated.

452.340.6 (new section number) - The child support guidelines do not currently take into account a variety of important and relevant factors. Therefore, language was added which requires the Supreme Court to promulgate child support guidelines which: (1) factor in reasonable state and federal tax obligations and the reasonable expenses associated with exercising the particular physical and legal custody arrangements; (2) factor in an award of physical custody or visitation which results in the child spending substantial time with both parents; and (3) awards and apportions all federal and state tax deductions, exemptions and credits associated with the child.

452.340.7 (new section number) - Recent case law {Taylor v. Taylor WD 50221, Scoggins v. Timmerman, 886 SW2d 139 (MO App. WD 1994), etc.} has held that the trial court does not have to make specific findings when an award of child support deviates from the guidelines. Language is 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 attorneys' fees. The "unless otherwise indicated" language was added to exempt the required award of attorneys' fees contained in proposed Sections 452.340.5 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 and the actions of the parties" when awarding attorneys' fees.

452.370 et al - The wording "section 452.340" was added whenever Supreme Court rule 88.01, the child support guidelines rule, was referenced in Chapter 452, RSMo. This directs the trial court to take into account the language of the child support statute as well as the rule when making child support awards.

The specific reference to Supreme Court rule 88.01 was deleted because the recent federal welfare reform legislation will, in all likelihood, require additional Supreme Court rules which address child support issues such as license revocation.

Lastly, language was added to monetarily penalize a custodial parent who fails to promptly notify the other parent within 30 days of a child's emancipation.

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. A new standard is proposed which allows the trial court to take the issue of relocation into account if the relocation "detrimentally impacts the other parent's visitation, physical and legal or physical or legal custody rights." See also Sections 452.377, and 452.411.

452.375.5 - In order to further Missouri's public policy of assuring "frequent and meaningful contact with both parents" after separation or divorce (see Sections 452.340.5 and 452.375.4), language was added which makes joint physical and/or joint legal custody a rebuttable legal presumption. The new language puts the burden of proof on the parent who opposes an award of joint physical and/or joint legal custody and not on the parent who requests joint physical and/or joint legal custody.

The practical effect of the current language is that a parent's opposition to joint physical and/or joint legal custody effectively eliminates that particular custodial option. The new language does not mandate joint physical and/or joint legal custody awards but instead would force the parent who opposes an award of joint physical and/or joint legal custody to provide evidence to the trial court showing why joint physical and/or joint legal custody would not be in the children's best interests.

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 general "reasonable visitation" or "reasonable temporary physical custody" awards, language was added which requires the trial court to specifically detail "the visitation or temporary physical custody rights of the parent without physical custody". See also Section 452.400.4.

452.400.3, .4 & .5 - These sections were modified so that a parent who is denied visitation, physical and/or legal custody rights may, after paying $50 and filling out a pro se motion form, ask a court to enforce the parent's existing physical and/or legal custody rights. Upon a finding that a visitation, physical and/or legal custody order has not been complied with, without good cause, a court is required to enter an order for immediate enforcement and a judgement for reasonable expenses, attorney fees and court costs.

452.400.6 & .7 - These sections were added so that a court will dispose of a motion for enforcement within 30 days, and to allow for a change of custody as a result of the intentional withholding of visitation, physical and/or legal rights.

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".

452.600 & 452.605 - Language was added which requires, except for good cause, educational sessions regarding the effects of divorce on children. The Missouri Supreme Court shall promulgate rules establishing guidelines for the required educational sessions. The reasonable expenses of the educational sessions shall be paid by the parties in proportion to their respective incomes.

454.496. - The October 22, 1996, Missouri Supreme Court case of Chastain v Chastain, #78611, held that the portion of 454.496.6 which requires that a court review an administrative child support order within 45 days is unconstitutional. Therefore, the last sentence of section 454.496.6 is deleted.

RONALD J. LEONE