A recent case in Missouri is headed to the Missouri Supreme Court to try and quell the debate about what the appropriate standard should be to modify custody orders in Missouri. In most of Missouri, at this moment in time, it appears to be all about the label.
If parents share the joint physical custody of their children, a term which is ambiguous and amorphous, to come into a court and request a change in custody, they must show a substantial and continuing change in circumstances. However if one parent has the sole physical custody, a term also not well-defined, the other parent must show only that a modification would serve the best interests of the child or children affected.
To simplify this, consider the following examples: Father and Mother share joint physical custody of their children. Father has approximately 55% of the physical time, and Mother has the remaining 45% of the time. If Mother decides that she wants equal time with the children, she must prove that there has been a substantial and continuing change in circumstances warranting such a modification. If Father has sole physical custody and Mother does not, then Mother must prove to the trial court only that it is in the best interests of the child for her to have additional time. Of course the difficulty in having this “bright line” test is that many people fall into a situation where the standard applied in their case does not make logical sense. For instance in Example #1 above, if Father and Mother have joint custody, and the Mother decides she would like to increase her time by one night every other week, or approximately 26 nights per year. She would have to prove that there is a substantial and continuing change to warrant such an increase.
On the other hand, from Example #2, if Mother decided she wanted to double her time with the children, she would only have to establish that that is what is best for the children. Earlier in this article, I indicated in most of Missouri, this is the status quo. In the Southern District of Missouri, the Court of Appeals has decided that a different standard should apply. In their modification cases, the trial courts have been directed to decide whether the modification is “significant or drastic.” If it is, then the party seeking modification is held to the higher standard of proving a substantial change in circumstances. While this approach is more ambiguous, it does eliminate the illogical results cited above. The answer to this debate will soon be considered by the Missouri Supreme Court. However, at this point if you live in Kansas City or St. Louis, the label your custody arrangement has is still of the utmost importance.
Michele Hammond is a Senior Attorney with the St. Louis office of Cordell & Cordell, P.C.
