568 S.W.3d 920
Mo. Ct. App.2019Background
- James Clark filed for dissolution in Jan 2016; three children then ages 10, 15, and 18. Temporary custody was given to Father and a GAL was appointed.
- The trial court suspended Mother's ordinary visitation and ordered therapeutic visitation in June 2016; therapeutic visits were later suspended pending further evidence.
- At the March 2017 bench trial the court heard testimony from multiple witnesses including the family/children’s therapists, Mother's therapist, both parents, and the children.
- In Dec 2017 the court awarded Father sole legal and physical custody, found that frequent contact with Mother was not in the children’s best interest, and incorporated a Parenting Plan restricting Mother to therapeutic visitation.
- The Parenting Plan delegated to Mother’s therapist, the children’s therapist, and a mutually agreed “therapeutic visitation therapist” the authority to determine when therapeutic, supervised, limited unsupervised, or unlimited unsupervised visits could occur, with only unlimited unsupervised visits triggering the court’s reconsideration.
- Mother appealed, arguing the plan impermissibly delegated judicial authority to therapists and the court failed to make the statutory findings required to restrict visitation. The appellate court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Parenting Plan impermissibly delegated the court's statutory authority to determine visitation to therapists | Clark (Mother): the plan delegates to therapists the power to decide frequency, duration, and type of visitation, which unlawfully transfers judicial authority | Clark (Father): (implicit) the plan appropriately relies on therapeutic professionals to coordinate visitation as therapies progress and to protect children | The appellate court held the delegation was impermissible; trial court must specifically set visitation and cannot let therapists alter custody/visitation terms. The judgment was reversed and remanded. |
Key Cases Cited
- Aubuchon v. Hale, 384 S.W.3d 217 (Mo. App. 2012) (trial court must act on custody evidence and cannot permit others to alter custody orders)
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard of review for court-tried cases)
- Barker v. Barker, 98 S.W.3d 532 (Mo. banc 2003) (de novo review for delegation of statutory authority issues)
- E.A.P. ex rel. V.C.I. v. J.A.I., 421 S.W.3d 460 (Mo. App. 2013) (impermissible delegation to parenting coordinator to modify contact schedule)
- Archdekin v. Archdekin, 562 S.W.3d 298 (Mo. banc 2018) (prejudice standard for reversible custody/visitation error)
- Beshers v. Beshers, 433 S.W.3d 498 (Mo. App. 2014) (upheld limited counselor discretion where court retained set schedule and parameters)
- Francis v. Wieland, 512 S.W.3d 71 (Mo. App. 2017) (permitted relying on professionals for medical/mental health guidance so long as custody arrangements are not altered)
- State ex rel. S.F.F. v. S.C.G., 554 S.W.3d 512 (Mo. App. 2018) (trial court must make statutory findings before restricting visitation)