Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri held that the trial court lacked authority to order the mother in an initial child custody action to relocate back to a tri-county area in Missouri. The court held that while Revised Statutes of Missouri § 452.377 provides for relocation order procedures, it is inapplicable since it only applies to the modification of an existing child custody and visitation order.
I. Facts and Holding
In March 2006, A.E.B. (Child) was born out of wedlock to T.B. (Mother).[2] L.D. (Father) was determined to be the biological father of Child after paternity testing in 2007.[3] Father resided in St. Charles County.[4] Child had always resided with Mother in St. Charles County, until Mother and Child moved to Ohio to live near Mother’s mother in July 2008.[5]
While Mother was relocating to Ohio with Child, Father filed a paternity and custody action against her.[6] Father’s proposed parenting plan, filed with the trial court, gave joint legal and physical custody of Child, and presumed that Mother and Child would reside in Missouri.[7]
At trial, Father testified that his preference was for joint physical and legal custody of Child in Missouri.[8] Father also presented a different proposed parenting plan requesting sole custody of Child, assuming Mother remained in Ohio.[9]
Mother’s first proposed parenting plan gave her sole legal and physical custody of Child and granted Father visitation every second weekend of the month as well as certain holidays and vacation time.[10] In the event the court determined that the Child should live in Missouri full time, Mother offered a second proposed parenting plan providing Mother with sole legal and physical custody of Child, but offering more visitation rights to Father.[11]
In February 2010, the trial court entered a judgment regarding Father’s paternity and awarded sole physical custody to Mother and ordered that Mother return to Missouri with Child before March 1, 2010.[12] The trial court also ordered that Child live in the tri-county area of St. Charles, St. Louis, or Lincoln County.[13] As Mother was named Child’s sole physical custodian, the judgment required both Mother and Child to return to Missouri.[14] The trial court’s judgment also included a parenting plan that the court determined to be in the best interest of Child.[15] The visitation schedule in the plan was largely similar to Mother’s second proposed parenting plan, which granted visitation to Father on alternating weekends, every Wednesday night, as well as certain holidays and vacation times.[16]
Mother appealed, arguing that the trial court abused its discretion when it compelled her to relocate from Ohio to Missouri with Child.[17] Mother argued that because the case involved an initial custody determination, under Revised Statutes of Missouri § 452.375, the trial court did not have authority to order her relocation.[18] Mother asserted that the procedures governing the relocation of children under § 452.377 are inapplicable because the statute only applies after an initial court-ordered custody agreement has been entered.[19] Mother also maintained that the trial court lacked authority to limit her choice of residence to the tri-county area of St. Charles, St. Louis, or Lincoln County.[20]
The Supreme Court of Missouri determined that the trial court lacked statutory authority to require Mother to relocate to Missouri.[21] Section 452.377 provides for the modification of existing child custody and visitation orders to allow parties to relocate their residences and is not applicable in cases where there has not yet been an initial determination of custody.[22] The court noted that an initial custody determination is governed by § 452.375, which does not provide for such relocation orders.[23] Section 452.377 does not preclude one of the parties from relocating prior to the initial custody determination.[24] Additionally, the court determined that the trial court lacked authority to restrict the Mother’s residence to the tri-county area.[25]
The court also held that Mother’s second proposed parenting plan did not consent to relocation nor grant the court authority to compel her to move to Missouri.[26] The court noted that Mother’s testimony only showed she was reluctantly willing to return to Missouri with Child if ordered, but that she did not wish to return.[27]
The Supreme Court of Missouri remanded the case because the visitation terms assume that Mother and Child will live in the tri-county area of Missouri.[28] Remand was necessary to determine an appropriate custody and visitation arrangement taking into account Mother and Child’s residence in Ohio.[29]
Judge Breckenridge wrote in her dissent that since Mother invited the trial court error she now raises on appeal, she is not entitled to relief from the erroneous judgment that ordered her to relocate to Missouri.[30] Judge Breckenridge found that since Mother’s second proposed parenting plan provided that she return back to Missouri, that Mother had invited the error of the trial court.[31] Judge Breckenridge also noted that Mother did not invite the trial court to erroneously restrict her residence in Missouri to a tri-county area, and Judge Breckenridge would strike that provision of the judgment and affirm it in all other respects.[32]
II. Legal Background
Revised Statute of Missouri § 452.375 provides that the trial court shall determine initial custody in accordance with the best interests of the child.[33] There are eight relevant factors the court should consider, “(1) [t]he wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties; (2) [t]he needs of the child for 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; (3) [t]he interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests; (4) [w]hich parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent; (5) [t]he child’s adjustment to the child’s home, school, and community; (6) [t]he mental and physical health of all individuals involved, including any history of abuse of any individuals involved . . . ; (7) [t]he intention of either parent to relocate the principal residence of the child; and (8) [t]he wishes of the child as to the child’s custodian . . . “[34]
While § 452.375 provides for the initial custody determination in accordance with the best interest of the child, § 452.377 provides for modifications to existing child custody and visitation orders as to allow parties who are subject to such orders to relocate their residence.[35] Relocation procedures of § 452.377 only apply to the modification of existing child custody or visitation orders where the parties are entitled to custody or visitation.[36]
Factor number seven of § 452.375 provides that it is relevant what “[t]he intention of either parent to relocate the principal residence of the child.”[37] While the intention of either parent to relocate the principal residence of the child is relevant to the initial determination of custody, the Missouri court of appeals noted in Day ex rel. Finnern v. Day that § 452.377 does not come “into play, unless and until there has been an initial determination of custody pursuant to [section] 452.375.”[38]
In Day the mother and father of the child were unmarried, and the mother relocated with child to Texas prior to a judgment being entered on paternity and custody.[39] Prior to relocation a judgment pendente lite (PDL) granted joint legal custody to the mother and father, and sole physical custody to the mother.[40] The father argued that when the mother wanted to relocate that she did not comply with § 452.377[41] and sought an order preventing relocation.[42] The court entered judgment for the mother and found that requiring the child and mother to move back to Missouri was not in the best interests of the child under § 452.375.[43] On appeal, the court found that since the PDL was a temporary order it was not an order on the merits.[44] Accordingly, since this was an initial custody determination, § 452.377 was found inapplicable.[45]
In Brown v. Shannahan, the Missouri court of appeals dealt with a similar issue where the mother moved to Virginia from Missouri, where the father resided.[46] At the time of the mother’s relocation to Virginia, the parents were not married and a judgment establishing father’s paternity had not yet been entered.[47] The father thusly had no legal rights entitling him to custody rights or visitation arrangements with the child until his paternity was established, which was finally established with the same judgment granting the mother sole physical custody Virginia.[48] The father appealed because he argued that § 452.377 was misapplied and thought the trial court should have ordered the mother’s relocation back to Missouri.[49] The court disagreed with the father and noted that § 452.377 only applies to the modification of existing child custody or visitation arrangements, and since father lacked any legal rights in regard to the child prior to the judgment it was an initial custody determination.[50] Accordingly, the court found that the trial court lacked authority to order the relocation of a party.[51]
In Dunkle v. Dunkle, the Missouri court of appeals dealt with an issue where the father relocated to Columbia, Missouri, from St. Louis.[52] Prior to the move the couple separated and the father filed a petition for dissolution.[53] The dissolution case was tried before a family court commissioner, and the circuit court confirmed the dissolution and entered an order granting father sole physical and legal custody of the children, while granting the mother certain visitation rights.[54] The mother appealed and raised the issue that the court erred by failing to make specific findings of fact under § 452.375 and § 452.377 with respect to the father’s relocation.[55] On appeal the court held that when a court makes its initial custody determination in accordance with the best interest of the child factors of §452.375, it is not required to make additional findings under § 452.377 with regard to relocation.[56]
III. Comment
The Supreme Court of Missouri is correct in their determination that the trial court abused its discretion and incorrectly applied Missouri statutes. The trial court lacked authority to order relocation because this was an initial custody action as opposed to the modification of an existing child custody and visitation order.
The concern that this case highlights is that, in custody matters such as these, a parent, who may be aware that a custody action is forthcoming, will take child to another state before a judgment can be entered. Under current law it appears there is nothing to stop a parent from doing this and effectively limiting visitation of the child’s other parent.
This seems particularly troubling for those parents who have children out of wedlock, as a father will have no legal rights to custody until such paternity order has been entered by the court.[57] If, for example, in this case Father had been married to Mother, and Child had been born during that marriage, he would have legal rights in regard to custody of Child and § 452.377 would have applied,[58] as paternity is presumed if the child was born within marriage.[59] Section 452.377 would have applied because notice of relocation, and the right to protest the relocation, by one party must be sent to “any party entitled to custody or visitation,” such as the legitimate father of the child.[60]
In sum, it appears that the current Missouri law favors those parents who have legitimate children as opposed to those who have children out of wedlock. While it is a valid policy concern to encourage marriage, family, and the legitimizing of children, a system that limits a parent’s rights to see their child, whether legitimate or not, serves none of these policy concerns.
-Nathan M. Atkinson
[1] No. SC91716 (Mo. Oct. 25, 2011) (en banc), available at http://www.courts.mo.gov/file.jsp?id=50190. The West Reporter citation is A.E.B. v. T.B., 354 S.W.3d 167 (Mo. Oct. 25, 2011) (en banc).
[2] Id. at 2.
[3] Id. A court did not enter judgment regarding Father’s paternity until February 2010. Id. at 3.
[4] Id. at 2.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id. at 3.
[10] Id.
[11] Id.
[12] Id. at 4.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id. at 4-5.
[20] Id. at 4.
[21] Id. at 6.
[22] Id.
[23] Id.
[24] Id. at 7.
[25] Id. at 8.
[26] Id. at 9.
[27] Id. at 9-12.
[28] Id. at 12.
[29] Id.
[30] Id. at 15 (Breckenridge, J., dissenting).
[31] Id.
[32] Id. at 16 (Breckenridge, J., dissenting).
[33] Mo. Rev. Stat. § 452.375.2 (2000).
[34] Id.
[35] Mo. Rev. Stat. § 452.377 (2000).
[36] Id.
[37] Id.
[38] 256 S.W.3d 600, 602-03 (Mo. App. E.D. 2008).
[39] Id. at 602.
[40] Id. at 601-02.
[41] Section 452.377 requires that all parties be given notice of a proposed relocation sixty days prior to the proposed relocation, and allows for another party to oppose such relocation by seeking an order from the court. Mo. Rev. Stat. § 452.377 (2000).
[42] Day, 256 S.W.3d at 602.
[43] Id.
[44] Id. at 604.
[45] Id.
[46] 141 S.W.3d 77, 79 (Mo. App. E.D. 2004).
[47] Id.
[48] Id.
[49] Id.
[50] Id.
[51] Id.
[52] 158 S.W.3d 823, 827 (Mo. App. E.D. 2005).
[53] Id. at 826.
[54] Id.
[55] Id. at 834.
[56] Id. at 835.
[57] Shannahan, 141 S.W.3d at 79.
[58] Mo. Rev. Stat. § 452.377 (2000)
[59] Id.
[60] Mo. Rev. Stat. § 210.822 (2000).
