Opinion handed down August 4, 2009[1]
Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri held that a father who owed more than $10,000 in child support had to post a bond for the owed amount before he could petition the courts for modification of child custody. The court found that the statute requiring a bond in the full amount owed does not violate the due process or equal protection clauses of the United States or Missouri Constitutions under a balancing of interests test. Likewise, the court found that the statute is not an unreasonable or arbitrary barrier in violation of the open courts provision of the Missouri Constitution. The court affirmed the lower court’s dismissal of Edward’s petition.
Mr. Edwards and Ms. Weigand divorced three years after the birth of their child.[2] Although he failed to show up at the custody hearing, Edwards was awarded visitation and temporary custody, while Weigand was granted primary physical and legal custody of the child.[3] Edwards was also directed to pay $455.70 in monthly child support, but by 2000 he was in arrearage, and the state initiated an enforcement action.[4] In 2003, Weigand filed a motion to modify and was awarded sole custody. [5] Edwards again failed to appear at the subsequent hearing, and he lost all custody and visitation rights.[6] The following year, Edwards filed a motion to modify custody, in which he asked that his custody and visitation be restored to that of the original 1998 decree.[7] However, Weigand filed a motion to dismiss, claiming that under Missouri Revised Statute Section 452.455.4 Edwards was first required to post a bond before seeking to modify a custody decree in the amount of his child support arrearage if that amount exceeded $10,000.[8] At the hearing on the motion to dismiss, Edwards admitted that he owed more than $10,000 but claimed that Section 454.455.4 was unconstitutional.[9] The trial court rejected his argument, and Weigand’s motion to dismiss was granted.[10]
On appeal to the Supreme Court of Missouri, Edwards argued that Section 452.455.4 was unconstitutional because it violated his fundamental right to a relationship with his child under the due process and equal protection clauses of the United States and Missouri Constitutions and should be examined using a strict scrutiny test.[11] The court noted that, although the right of a parent to have a meaningful relationship with his or her child is a fundamental right[12], unlike other fundamental rights parental custody is not subject to a strict scrutiny standard and is judged according to a balancing of interests standard.[13] In its analysis, the court stated that the intention behind the statute was to protect the interest of a custodial parent who has shouldered a disproportionate financial burden.[14] Although both parents have an interest in custody and visitation, a custodial parent has an additional interest in maintaining custody.[15] When not receiving significant child support payments, such a parent would have diminished resources to hire an attorney to defend a motion for modification, while the parent in arrears has spent the owed money on hiring an attorney to file the motion.[16] Additionally, the state has an interest in protecting the child and encouraging the payment of child support.[17] The court stated that there was a reasonable balancing of the interests and that the statute was constitutional.[18]
Edwards also asserted that Section 452.455.4 violated the open courts provision of Missouri’s constitution.[19] The court rejected this claim and stated that responsibility lies with the parent in arrears and that protecting the interests of the custodial parent by requiring a bond is neither arbitrary nor unreasonable.[20] The court affirmed the trial court’s judgment.[21]
II. Legal Background
A. Due Process and Equal Protection
Parents have a fundamental right to associate with their children.[22] The challenged section of Missouri Revised Statute 452.455 was added in 2004[23] and states that a non-custodial parent who owes more than $10,000 in past due child support who seeks modification of a custody decree must post a bond in the amount of child support owed or reasonable legal fees, whichever is greater.[24] Section 452.455.4 also states that, once a bond is posted, the court shall hold the bond in escrow until the modification proceedings have finished.[25] Edwards argued that this bond requirement infringed upon his fundamental right to associate with his child.
This fundamental right has been recognized by the Supreme Court of the United States, which has acknowledged that a parent has a fundamental right to make decisions about what is best for his or her child, including decisions about who may visit the child.[26] Although a statute allowing any person to petition for visitation rights at any time was found unconstitutional as applied, the Court has declined to say that all similar statutes are per se unconstitutional.[27] Additionally, although fundamental rights are generally accorded strict scrutiny by courts, the Court has rejected that standard and has said that “heightened protection” is appropriate for certain fundamental rights.[28]
In 2009[29], The Supreme Court of Missouri analyzed a statute similar to Section 452.455.4 that precluded courts from granting custody to a parent who had been found guilty of sexual crimes in which a child was the victim.[30] In that case, a parent argued that the statute impermissibly prevented him from exercising his fundamental right to associate with his children.[31] The Missouri court relied on Supreme Court precedent for the proposition that mere heightened protection and not strict scrutiny was the appropriate standard.[32] The court stated that it must weigh the interest of the parent against the state’s interest in protecting the child from harm while considering various factors.[33] These factors include the private interests involved, the risks of erroneous deprivation of interests, and the financial and administrative burden placed on the government.[34] The court ultimately determined that the statute did not unconstitutionally prevent the felon parent from having a relationship with his children because, when balancing the interests involved, the statute was a reasonable way to protect the child and because he was allowed to have limited supervised visits.[35] Missouri’s highest court has also stated that, when parental rights are implicated, a case-by-case approach is best when balancing interests.[36]
In the instant decision, Edwards argued that Section 452.455.4 violated his due process rights to associate with his children and that the statute was intended only as a way to promote the state’s collection of child support.[37] Edwards believed that, because a fundamental right was involved, the court should have used a strict scrutiny standard when analyzing the statute.[38] Edward’s case is distinguishable from previous cases because, unlike those cases, where only one party was a parent, both parties, each with fundamental rights, were parents of the child.[39] However, consistent with the above precedents, the court refused to apply strict scrutiny and instead used the heightened protection standard.[40] The court also stated that balancing of interests was especially appropriate because both parties were parents with fundamental rights.[41] When balancing the interests, the court determined that, while the interest of Edwards was to regain some visitation or custody, the purpose of the statute was to protect the interest of Weigand, since she is owed child support and would therefore have difficulty hiring an attorney to defend Edwards’s motion to modify.[42] The court also said that, since Edwards was already denied custody once, there is a strong interest for Weigand, the child, and the state to ensure that an attorney is able to adequately defend Edward’s motion to modify.[43]
B. Open Courts
The Missouri Constitution states that the courts shall be open to every person.[44] In order to show a violation of the open courts provision the party must show that they have a recognized cause of action, that the cause of action is being restricted, and that the restriction is arbitrary or unreasonable.[45] The Edwards court determined that, although Section 452.455.4 is a restriction, it is a reasonable restriction to protect the parent who is owed child support, the state, and the child.[46] Furthermore, unlike prior cases that did violate the open courts provision[47], any restriction is within the control of the non-custodial parent, who can simply post the bond, move to modify child support payments, or defend a motion to modify custody to alleviate the restriction.[48]
III. Comment
While the instant decision continues along the same path as prior precedents, the mystery of what actually constitutes heightened protection persists. What exactly is heightened protection? What heightened protection did Edwards receive? Until the Supreme Court of the United States provides more guidance, heightened protection may be indistinguishable from reasonable basis as applied. Admittedly, the instant case is especially difficult, since both parties were entitled to heightened protection and any advantage of one would be effectively “cancelled out” by the other.
As a practical matter, the $10,000 threshold poses its own problems. The prospects for modification by a parent who is so far in arrears seem slim. In an area of law dominated by “the best interest of the child,” it is questionable whether a child benefits from having no contact with one parent whose circumstances have changed since the existing custody or visitation decree.
Finally, according to the statute’s own terms, a person owing $10,001 would only have to come up with one dollar to get around the statute. The statute only applies to those who owe in excess of $10,000; once one owes less than that, one may file a motion to modify. Because the statute does not create an incentive to pay the full amount owed, it arguably does not serve the legislative purpose as stated by the court, in that there is no guarantee or even likelihood that there will be a payment sufficient to offset the cost of the custodial parent’s legal fees. Such is the dilemma inherent in any statute that sets a minimum threshold.
-Neil D. Fossum
[1] Weigand v. Edwards, No. SC 89159, 2009 WL 2381337, at *1 (Mo. Aug. 4, 2009) (en banc).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] See Troxel v. Granville, 530 U.S. 57, 66 (2000).
[13] Weigand, No. SC 89159, 2009 WL 2381337, at *3.
[14] Id. at *4-5.
[15] Id. at *4.
[16] Id. at *5.
[17] Id at *5-6.
[18] Id. at *7.
[19] Id.
[20] Id. at *8.
[21] Id. at *9.
[22] Troxel v. Glanville, 530 U.S. 57, 66 (2000).
[23] Mo. Rev. Stat. § 452.455.4 (Supp. 2004).
[24] Id.
[25] Id.
[26] Troxel, 530 U.S. at 66.
[27] Id. at 73.
[28] Id. at 65.
[29] Cannon v. Cannon, 280 S.W.3d 79 (Mo. 2009).
[30] Id.
[31] Id. at 85-86.
[32] Id. at 86. Ironically, the court cites Justice Thomas’s concurrence which actually advocated the use of a strict scrutiny test. Troxel v. Glanville, 530 U.S. 57, 80 (2000).
[33] Cannon, 280 U.S. at 86.
[34] Id.
[35] Id. at 88.
[36] Blakeley v. Blakely, 83 S.W.3d 537, 546 (Mo. 2002).
[37] Weigand v. Edwards, No. SC 89159, 2009 WL 2381337, at *4 (Mo. Aug. 4, 2009) (en banc).
[38] Id. at *3.
[39] Id. at *4-5.
[40] Id.
[41] Id. at *4.
[42] Id. at *4-5.
[43] Id. at *7.
[44] Mo. Const. art. I § 14.
[45] See Snodgrass v. Martin & Bayley, Inc., 204 S.W.3d 638, 640 (Mo. 2006) (en banc).
[46] Weigand v. Edwards, No. SC 89159, 2009 WL 2381337, at *8. (Mo. Aug. 4, 2009) (en banc).
[47] See Kilmer v. Mun, 17 S.W.3d 545 (Mo. 2000) (en banc).
[48] Weigand, No. SC 89159, 2009 WL 2381337, at *8.
