Divorce is an extremely taxing experience for everyone involved. Often there is a sense of relief when the divorce is final and everyone can get on with their lives. Following a divorce, the parties involved often need to cooperate on issues such as custody, visitation, child support and maintenance payments, and follow other aspects of the divorce judgment. However, some parties simply cannot get along, especially when children are involved, despite what was agreed upon or what the court ordered.
The most common post divorce issues almost always relate to children. This can include visitation with the child (physical custody), and disputes regarding decisions about raising the child (legal custody). Disputes regarding money come in a close second behind disputes regarding children. However, there can also occasionally be disputes regarding alimony (maintenance) and other aspects of the divorce judgment such as property division.
What to do when your ex spouse does not comply with the details of the divorce judgment
When your ex willfully and blatantly disregards the court orders associated with a divorce or child custody matter, you have several options. The first option is to simply try to work things out with your ex/baby momma :) through effective communication. This option also saves money because it doesn’t involve paying an attorney, paying court fees and taking the time to attend court hearings and meetings with attorneys. Especially when young children are involved, avoiding conflict and further legal action has many advantages.
If your ex continues to violate the court order repeatedly, and after talking with them they still refuse to cooperate and follow the judgment, you have to option to petition the court with a motion for contempt of court. In Missouri, contempt of court is a criminal charge and may occur when any party disobeys or fails to comply with a court order, obstructed or interfered with a court order, or otherwise disrupted the court’s business in some manner.
Contempt of court
In Missouri, contempt of court is handled according to Missouri revised statute 476.110..... Acts constituting contempt of court— Every court of record shall have power to punish as for criminal contempt persons guilty of:
(1) Disorderly, contemptuous or insolent behavior committed during its session, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority;
(2) Any breach of the peace, noise or other disturbance directly tending to interrupt its proceedings;
(3) Willful disobedience of any process or order lawfully issued or made by it;
(4) Resistance willfully offered by any person to the lawful order or process of the court;
(5) The contumacious and unlawful refusal of any person to be sworn as a witness, or, when so sworn, to refuse to answer any legal and proper interrogatory.
Missouri Family Access Motion
It may not be the best idea to petition the court to press criminal charges against your ex, especially if you share children together and have no choice but to continue to work with her in the future. Fortunately there are other options. It is sadly too commonplace that mothers decide to withhold children from their fathers without a legally valid reason. The Missouri legislature has contemplated situations like this, and this is why Missouri courts provide parents with the option to file a Missouri family access motion when their children are illegally and unrightfully withheld from them.
When one parent refuses to comply with the parenting plan and allow custody/visitation the “victim” parent can file with the court what is called a family access motion. Missouri family access motions usually are faster and more effective than motions for contempt of court in enforcing custody orders. When filing a family access motion, the affected parent must state in the motion the specific facts they allege are a violation of the judgment. The court is mandated to act quickly when this motion is filed, and a hearing must be held within 60 days, but it is usually scheduled sooner.
A successful family access motion can benefit the victim party and punish the offending party. In response to a successful filing, the court may award the filing parent additional parent time to make up for the missed time, a fine of up to $500 against the offending party, or order the parent to attend counseling at their own expense.
If one parent continues to disobey court orders consistently, it may become appropriate for the other parent to file a motion to modify. A motion to modify in Missouri is a request for the court to permanently alter the divorce or child custody judgment or agreement. Motions to modify in Missouri are also appropriate when the agreement is older/outdated and no longer appropriate or in the best interests of the child. However, to permanently change the court’s judgment, Missouri law has a high standard when it comes to child custody arrangements. This is because the courts do not want to be bogged down with motions and court appearances each and every time parents have a disagreement over the child custody arrangement. In Missouri, before a motion to modify will be heard, there must exist a substantial and continuing change in circumstances. Additionally, the motion must be filed in the proper court with jurisdiction over the dispute.
Missouri Requirements for a Motion to Modify
The challenging custody situation must represent a “substantial and continuing change in circumstances" from when the original parenting plan was a approve by the court. What is an example of a valid “substantial and continuous” changes in circumstances which would warrant the court modifying the judgment? One parent becoming ill (or dead) and no longer having the ability to care for the child as they did previously.
At a certain age the child’s wishes regarding custody become significant and may be sufficient for a motion to modify. One parent having criminal, addiction or any issues affecting their “fitness” to parent are also valid. Of course, any emotional or physical abuse could warrant a change in the custody agreement. Relocation of one parent is one of the most common reasons why a custody agreement is modified. Finally, significant changes in a child’s health or educational needs, or changes in the amount of parenting time the child needs can be rationale for modifying a custody arrangement.
The changed situation makes the original (or previous) custody order impractical or unreasonable.
The desired change (modification) to the parenting plan or custody judgment must be in the involved child or children’s best interests.
The particular court in which the motion to modify is filed must have the proper jurisdiction according to the UCCJEA. The UCCJEA, aka the Uniform Child Custody Jurisdiction and Enforcement Act, is a uniform state law adopted by most states which specifies which court should decide a child custody case. This becomes important when either parent or the child no longer reside within the court jurisdiction where the original custody judgment was made. The UCCJEA uses 4 factors to determine which is the appropriate court to hear the dispute: home state, significant connection, more appropriate forum, and no other state jurisdiction.
The home state is the state where the child resided with one or both parents (or a person acting as a parent) for a minimum of 6 months immediately prior to the filing of the motion to modify. Home state jurisdiction exists in the state the children currently reside in or the state the child resided in within 6 months before the filing of the case.
If at least one parent has a significant connection with the state, then that state has significant connection jurisdiction over the child. To establish significant connection, there must exist significant evidence in the state concerning the child’s care, training, protection and personal relationships.
The more appropriate forum factor comes into play when the two previous factors (home state and significant connection) cause the court to decline to jurisdiction because there is another court that is the more appropriate place for the custody dispute to be heard.
Finally, as a last resort, no other state jurisdiction will be employed when no other court of any state would have home state, significant connection or more appropriate forum jurisdiction.
Talk with a Missouri Men’s Family Law Attorney:
It is commonplace for a custody agreement to be modified one or more times. As discussed above, many things can happen in life which make the original decree of child custody impractical, unreasonable or simply not in the best interests of the child. If civil communication between the parents cannot provide an appropriate solution, men in Missouri should consult with a lawyer experienced in Missouri who can help you file a motion to modify the custody arrangement.
If you would like to discuss modifying your custody order with your ex, give me a call (816) 287-1530.
Your's truly,
Rob Davis, DDS, Attorney at Law
The Men's Center for Domestic Resolution
Comments