384 S.W.3d 217
Mo. Ct. App.2012Background
- Mother and Father were granted joint physical and legal custody of M.A. and H.A. in the September 2009 dissolution; custody rotated weekly with summer two weeks of uninterrupted visitation.
- A temporary restraining order against Father followed after alleged sexual abuse of M.A., with criminal charges filed in Missouri and later arising in Illinois; Father was acquitted in Missouri in 2011.
- Mother filed a verified motion to modify on May 28, 2010 seeking sole custody and relocation to Cypress, Texas.
- Third-party intermediors joined in 2010 seeking third-party custody.
- The trial court denied modification and relocation in July 2011 and ordered Therapeutic Supervised Visitation to reestablish relation between the children and Father; it suggested possible return to court if normalization failed.
- On appeal, Mother challenged the denial of modification and relocation; the court held the trial court erred in relying on the counselor’s normalization as a condition for custody, and reversed and remanded for further consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substantial change in circumstances warranted modifying custody | Mother contends change occurred due to breakdown in contact and abuse findings | Father argues no sustained change justified modification | Substantial change found; remand for best-interests analysis |
| Whether continued joint custody served the children’s best interests | Mother asserts joint custody was not in the children’s best interests given breakdown | Father contends ongoing joint custody appropriate absent abuse findings | Joint custody improper; remand to assess best interests under statutory factors |
| Whether the court improperly delegated custody decisions to a counselor during normalization | Mother argues court cannot abdicate judicial authority to a counselor | Father defends court-ordered normalization process | Reversed; court cannot delegate custody determinations to a counselor |
Key Cases Cited
- McCauley v. Schenkel, 977 S.W.2d 45 (Mo.App. E.D.1998) (breakdown of parental communication supports modification )
- Hamer v. Nicholas, 186 S.W.3d 884 (Mo.App. W.D.2006) (best-interests framework requires consideration of §452.375 factors)
- Bather v. Bather, 170 S.W.3d 487 (Mo.App. W.D.2005) (distinguishes normalization approach and transition program from the present case)
- Halford v. Halford, 292 S.W.3d 536 (Mo.App. S.D.2009) (joint legal custody inappropriate where parties cannot communicate or share decisions)
- M.F.M v. J.O.M., 889 S.W.2d 944 (Mo.App. W.D.1995) (court cannot abdicate judicial power in custody matters; requires evidence-based decision making)
- Ream-Nelson v. Nelson, 333 S.W.3d 22 (Mo.App. W.D.2010) (communication and cooperation required for joint custody considerations)