Missouri: Conflict Between Appellate Courts on Plain Meaning of Shared Parenting Law

November 15, 2017 by Linda Reutzel, Chair, National Parents Organization of Missouri

Many people in Missouri were very excited about passing Family Court reforms in 2016 with House Bill 1550. Many especially like the statute change that would "maximize to the highest degree the amount of time a child may spend with each parent". Also HB 1550 got rid of default parenting plans that restricted the children’s access to their father to one night during the week and every other weekend, and now no court, in the entire state, can have a default parenting plan.

Since our initial excitement we have had ups and downs. First, two days after the new law went into effect, the Missouri Eastern District Appellate Court actually mentioned the new law and made some very interesting observations about it. In this case, Morgan v. Morgan, the judge said that the traditional "siegenthaler" schedule of one day a week and every other weekend was not considered joint physical custody. The parenting time allowed by this schedule was not significant. I, along with hundreds upon hundreds of Missourians that I speak with, agree with this. But then throughout this past year I have heard from many fathers that say judges are still not giving 50/50, so their lawyers tell them to settle for less and many are actually still getting the default schedule.

Change in a resistant Legal System is, all too often, slow.

It was the former Missouri Appellate Court judge Paul Spinden, who noted that traditions tend to be tenacious and that judges intrinsically distrust anything new. With that observation, I am not surprised by the lack of change in custody rulings. I saw this same reluctance to change when I attended the 2016 summer Family Bar Conference. I heard what the leadership was saying. At the Conference the presenters were not concerned about the significance of the new law at all. The presenters kept saying that nowhere in the law was there any mention of "equal" or "rebuttable presumption".

Let me just say that in the original bills these words were there, but after the help of Family Bar leadership lawyers, those words were taken out. So Shared Parenting advocates and legislators were hoodwinked into weakening our initial bill.

Now, the Missouri Western District Court of Appeals is also attempting to undo Missouri’s reforms to the family law system in its decision of King v. King. In its opinion, from October 10, 2017, the court completely ignores HB 1550. And the Western District expressly rebukes the Eastern District Appeals Court’s application and adherence to HB 1550 in Morgan v. Morgan. The Western District stated in footnote 3 [we specifically refused to follow Morgan, concluding that it ignored significant case law holding that similar parenting plans afforded "joint physical custody", and that it dangerously focuses merely on the number of overnights a parent has rather than the best arrangement for a child and the totality of parenting opportunities.] But then goes on to rule the Trial Court’s decision is not subject to reversal based solely on the number of days the child has access to father. The children have access to the Father 5 days out of 14 (or 4 out of 20 school days per month) and the court thinks that is enough to be in the children’s best interest. Under their interpretation, this is substantial time and therefore meets the requirements of 452.375.

It should be obvious that neither the Trial Court nor the Judges in the Appellate Court were trying to maximize parenting time. Neither Court could have reasonably believed that 5 out of 14 days is maximized! This Appellate Court ignored HB 1550 and did not even reference it or the public policy reflected in HB 1550 amending section 452.556 relating to custody plans.

The appellate court reviewed all eight factors and only the Second Factor favored a parent .

Factor #2 reads as follows [The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child].

Mother testified that she did most of the laundry and cooking during the marriage. So the court restricted the children’s access to their father and picked the mother as the winning parent thus penalizing the father two days out of the two week physical custody period. But wait, I bet the father did the bulk of lawn care and house maintenance. So shouldn’t the judge restrict the children’s access to the mother and penalize the mother the same way? Illogical and not relevant to the best interest of the children, I know. Do the Judges really think that father cannot cook or do laundry? If the Judges really believe this, how can they even give father 5 days out of 14…..will these kids be fed… will these kids have clean clothes?

The reality is that after divorce, the responsibilities for everyone involved change. It would surprise many of you to know that while the divorce was pending the initial trial date, the children had equal access to both parents in an equal split week. The children quickly adapted and benefitted from this parenting plan. No mention of starvation or dirty clothes.

The ruling also mentioned that they will continue to look to old case law, decided prior to the passage of HB 1550 in 2016. HB 1550 was passed by the co-equal legislative branch and signed by the co-equal executive branch. So I guess some judges will simply choose not to look at new statutes? They won’t look at the new policy of Missouri, that children should have equal access to both fit and willing parents. So tell me this, if the legislature said no more default parenting plans but this appellate court said they would look to old case law, how pray tell, are we supposed to get rid of default parenting plans?! Older case law has been using the siegenthaler parenting plan, of one night a week and every other weekend, since the 80’s. All current research says that parenting plan is considered sole custody and is harmful to children.

You see the problem? Some Judges, lawyers, and many in the family court industry want the status quo. They seem to be looking for reasons to refuse children equal access to their parents. We knew that more legislation would be necessary. During the 2017 legislative session, we did get a rebuttable presumption of equal shared parenting bill through the Judiciary Committee. We just ran out of time to get a floor vote in both houses. We will hit the ground running come January 1, 2018.

These lopsided parenting plans from courts across this State are harming our children. Judges must stop making one fit and willing parent a visitor in their own children’s lives. A child’s development involves two parents. Children need the love, approval, involvement and discipline of both parents to develop into responsible, accountable and contributing adults. Judges must be educated on what actually is in the best interest of children – great relationships with both parents and extended families.  

In King v King, the father just wants equal access to his children. His children need and want equal access to their father. However the Appellate Court rubber stamped the trial court’s made up custody plan. Instead of splitting time between each parent’s respective motion, granting what would be a compromised 50/50 custody schedule, the trial court felt compelled to choose a winning parent, totally ignoring HB 1550 from 2016 and contradicting the Eastern District’s Morgan v. Morgan ruling.

Folks, we have a problem. A fundamental conflict appears to exist between two of Missouri’s three Appellate Districts regarding a new law and the interpretation of that law. One district says maximize parenting time to the highest degree for each parent, while another district places a cap on the number of overnights for one parent. I cannot wait to hear what the Southern District has to say! Missouri’s Supreme Court may have a very important Family Law decision soon, in order to clarify which scenario is in our children’s best interest.

Legislators write laws and courts are supposed to follow those laws. Judges are very powerful but they should not act like kings. They should respect laws from their co-equal branches and the will of the people.

 

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