"Mommy, Are We Moving? No . . . Maybe . . . Yes. . . ." -- The Evolution of Missouri's Relocation Law

by Jill S. Kingsbury¹

The right of a divorced parent to unilaterally relocate the primary residence of his or her children has generated a significant amount of litigation in Missouri's family courts in recent years. "Relocation litigation" raises some of the most complex and controversial issues in domestic relations law, and as society continues to become increasingly mobile, such controversy is unlikely to abate. This article traces the evolution of Missouri's relocation law, particularly highlighting Missouri's recently amended relocation statute.

I. Introduction

In 2001, for every two marriages entered into in Missouri, more than one marriage was dissolved, with one-half of those dissolutions involving children.² Of the dissolutions involving children, custody of the parties' children was awarded to the mother in 62% of cases, the father in 10% of cases, and the parties were awarded joint custody in 27% of cases.³

Rather than ending child custody disputes, however, the dissolution decree oftentimes merely serves as a new starting line for what proves to be an ongoing battle over access to children. Factoring in our highly mobile society, it should come as no surprise to learn that relocation litigation is evolving into an extremely complex area of the law replete with controversy.⁴ While relocation adds additional stress to the life of any child, for a child of divorce relocation can represent another episode of the original disruption that occurred at the time of divorce. Therefore, how society addresses the issue of relocation is one of the most important topics currently affecting domestic relations law. This article traces the evolution of Missouri's relocation law, particularly highlighting how Missouri's relocation policy has progressed from a policy that generally restricted relocation to a policy that tends to favor relocation.

II. The Evolution of Missouri's Relocation Law

A. Missouri's Early Relocation Law - "No, honey, we're not moving."

In Missouri, children subject to custody awards are considered wards of the court.⁵ In discharging its duty as guardian of custodial children, courts are required to devise orders "in line with the 'inflexible and unyielding principle that the welfare of the child is paramount and supreme.'"⁶ Since at least as early as 1947, the courts have concluded that when both parents are morally fit, the best interest of children is served by a continual relationship with both parents.⁷ This general premise sparked the judicial policy to deny the relocation of a child to another jurisdiction when the effect was to deny the child the opportunity for contact with the non-custodial parent.⁸ Moreover, even the threatened relocation of a child, if the removal would deny the child an opportunity for contact with his father, was sufficient grounds for a motion to modify the original custody award.⁹ Missouri's early "relocation rule" is aptly illustrated by the court's observation in Pelts v. Pelts:

Where the welfare of a growing boy is at stake, the rule becomes even more pointedly applicable when considered in the light of the assertion made in Luethans v. Luethans, . . . and so regularly confirmed by common experience and observation, . . . 'It is so evident that a son should have the companionship, affection, and guidance of his father that it scarcely needs restating.'¹⁰

Thus, prior to 1984, courts were generally reluctant to allow the custodial parent, usually the child's mother, to relocate if such relocation would deny the child the opportunity for physical contact with the non-custodial parent.

B. Missouri's First Relocation Statute - "I'm not sure, honey, we might be moving."

In 1984, prompted by the reality of a highly mobile society, the Missouri legislature enacted § 452.377, RSMo, which served to facilitate the removal of a child from the state by the custodial parent without court order in those cases where the party with custody and the party with visitation rights consented to relocation outside the state. In particular, § 452.377 provided that persons with custody of a child were prohibited from relocating the child to another state for more than 90 days unless the custodial parent obtained "the written consent of [all] parties with custody or visitation rights," or a court order was obtained following notice to all parties with "visitation rights and [an] opportunity for [a] hearing."¹¹ Moreover, § 452.377 provided that a violation of a court order prohibiting relocation "may be deemed a change of circumstance under section 452.410, allowing the court to modify the prior custody decree."¹²

Thus, on its face, the 1984 relocation statute appeared to make it easier for custodial parents to relocate with their children. In the absence of written consent from the non-custodial parent, however, relocation was not automatically permitted merely by the filing of a motion and requesting the court to adjust visitation to accommodate the desired relocation.¹³ Section 452.377 was silent, however, as to what standard courts were to use in making the decision regarding the proposed relocation of a child. Consequently, the courts developed a four-part relocation test dubbed the Michel's test.¹⁴ Specifically, the court began to consider the following four factors relevant in determining the propriety of relocation by a custodial parent:

(1) The prospective advantages of the move in improving the general quality of life for the custodial parent and child, (2) the integrity of the custodial parent's motives in relocating (whether primarily to defeat or frustrate visitation and whether the custodial parent is likely to comply with substitute visitation orders), (3) the integrity of the noncustodial parent's motives for opposing relocation and the extent to which it is intended to secure a financial advantage with respect to continuing child support, and (4) the realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent's relationship with the child if relocation is permitted.¹⁵

Thus, absent consent by the parties, under the Michel's test, "the right of a custodial parent to change a place of residence is not . . . totally insubordinate to the wishes of the other parent irrespective of the other relevant factors."¹⁶ Rather, the Michel's test sought to recognize the reality that we live "in [a] highly mobile society, [and] it is unrealistic to inflexibly confine a custodial parent to a fixed geographical area, if removal to another area for reasons such as change of employment, remarriage, etc., is consistent with the best interest of the minor children."¹⁷ Thus, rather than flatly denying custodial parents permission to relocate when the relocation would deny the child the opportunity for frequent contact with the non-custodial parent, under the 1984 statute relocation cases became highly fact-intensive as the courts began to weigh both parents' evidence.

For example, in Thomas v. Thomas,¹⁸ the court granted mother's permission to relocate her minor child to Colorado when mother's new husband was required to accept a mandatory job transfer. In granting mother permission to relocate, the court reasoned that the move would increase the child's general quality of life because the job transfer would increase the household income, thereby allowing mother to stop working and stay home with her child.¹⁹ In Pokrzywinski v. Pokrzywinski,²⁰ however, the court denied mother's request for permission to relocate with her children to Illinois in order to live on her new husband's family ranch. In particular, the Pokrzywinski court reasoned that the relocation was not being undertaken for economic advantage or employment opportunities and mother failed to demonstrate that the family's needs could not be met in Missouri.²¹ Furthermore, the Pokrzywinski court placed considerable emphasis on the needs of the children for a continuing relationship with both parents and the effect relocation would have on father's opportunity to preserve and foster his relationship with his children.²² The Thomas court, on the other hand, while noting the "difficulties in visiting the [child] due to the increased distance," nevertheless found that that visitation privileges of non-custodial parents could not become "insuperable obstacles" in the relocation question.²³ Thus, in permitting the relocation, the Thomas court held that "[e]ven where removal will make visitation more difficult, a trial court may properly permit removal of the children when it is in their best interests."²⁴

Thus, as the decisions in Thomas and Pokrzywinski clearly demonstrate, following the 1984 enactment of § 452.377, disputes concerning relocation of children were to be resolved on the particular facts of each case, rather than by rigid application of rules.²⁵ And, as before, when weighing each factor the primary concern was to be on "whether and how each factor tends to shed light on the best interest of the child."²⁶ What is the best interest of the child in such complex and knotty cases, however, is never clear-cut. And when the interest of the custodial parent who wishes to relocate, perhaps out of economic necessity, is weighed against the interest of the non-custodial parent who desires to maintain frequent and regular contact with his children, the court's answer to the question, "Mommy, are we moving?" under Missouri's first relocation statute turned out to be a qualified "maybe."

Such uncertainty, however, only adds to a parent's anxiety - especially if one considers that the country's desire or necessity to remain mobile continues unabated. Moreover, for families experiencing divorce, the freedom to remain mobile is oftentimes more than merely a luxury, but rather an economic necessity. For example, following a divorce, the need to secure or retain employment, relocate with a new spouse, seek support of other family members, or pursue educational or career opportunities oftentimes leaves custodial parents facing a Hobson's choice. A custodial parent faced with the choice of relocation or unemployment - also confronted with a restrictive relocation law - is, in essence, forced to choose between custody of her children and economic survival. Relocation cases also create difficult choices for non-custodial parents, who risk losing frequent contact with their children or being viewed as holding the non-custodial parent hostage. Recognizing these difficult dilemmas, the late 1990s witnessed a shift in many states' views concerning relocation.²⁷ Missouri joined this trend in 1998 with a complete rewrite of § 452.377.

C. Missouri's Revised Relocation Statute - "Honey, pack the moving truck."

Missouri's new relocation statute, essentially a "notice" statute, became effective August 28, 1998 and generally tracks the current trend away from requiring custodial parents to seek permission from courts or non-custodial parents to move. Instead, custodial parents must now provide notice of a proposed relocation of the child's principal residence to every person entitled to visitation with the child at least 60 days prior to the proposed relocation.²⁸ After the non-custodial parent receives such notice, the burden shifts to the non-custodial parent to take necessary legal action to prevent the relocation.²⁹ The burden at this junction, however, is merely a burden of instituting court action and not a burden of proof.³⁰

Unlike its predecessor, however, the new relocation statute applies to any relocation; there is no specified distance, nor is the relocation required to be to another state.³¹ Moreover, unlike the previous version of § 452.377, which was applicable only to the relocation of a child's principal residence, the new statute requires the non-custodial parent, as well as any other adult entitled to visitation with a child, to notify every person entitled to visitation with the child of a proposed relocation.³² This deviation from the prior statute recognizes that children are not only impacted by a change in their own residence but also by a change in the residence of a person with visitation rights. Similar to the 1984 version of § 452.377, however, the proposed relocation must be for a period of at least 90 days.³³

1. Notice

Section 452.377, RSMo 2000, provides that a person who has the right to establish the principal residence of the child shall notify every other person who is entitled to visitation with the child of a proposed relocation of the child's principal residence.³⁴ Notice must be given in writing, delivered by certified mail, return receipt requested, at least 60 days prior to the proposed relocation, absent exigent circumstances.³⁵ In addition to the usual information pertaining to the child's proposed new residence address, mailing address, home telephone number, and "date of the intended move," the notice must also include (1) "[a] brief statement of the specific reasons for the proposed relocation of a child," and (2) "[a] proposal for a revised schedule of custody or visitation with the child."³⁶ Custodial parents also have a continuing duty to update this information.³⁷ The statute also allows for the waiver of the notice requirements when necessary to protect the health or safety of the child or any adult.³⁸

Failure to provide the requisite notice must be considered by the court as "(1) [a] factor in determining whether custody and visitation should be modified; (2) [a] basis for ordering the return of the child . . .; and (3) [s]ufficient cause to" have the person relocating with the child pay the objecting party's reasonable attorney's fees and expenses.³⁹ Subsection 12 of § 452.377 also provides that any violation of the statute, which would include a failure to provide the requisite notice, may be deemed a change of circumstance allowing a modification of custody, and may serve as a basis for contempt.⁴⁰

While the statute clearly states that notice must be provided by certified mail, return receipt requested, no Missouri court thus far has enforced this technical notice requirement.⁴¹ In Kell v. Kell,⁴² the Eastern District noted that the legislature added this technical notice requirement because of a "change in the way the statute [i.e., § 452.377] would operate."⁴³ In particular, Kell reasoned that with the change in the statute, a hearing is no longer required and "[i]f a parent is notified by certified mail, return receipt requested and the parent does not file a motion seeking an order to prevent the relocation, the move can occur without a hearing."⁴⁴ Thus, on the facts of the case, because the father opposing relocation received actual notice, albeit not by certified mail, return receipt requested, and the father filed a motion in opposition to the mother's notice of proposed relocation, the court held that the father had waived any objection to the mother's technical compliance with the notice requirements.⁴⁵ In addition, because the father "had a full hearing on the issue of the proposed relocation prior to the [actual] relocation," the court concluded that the father was unable to demonstrate prejudice from the mother's failure to serve notice by certified mail.⁴⁶ Thus, on the facts of the case, the court found that the mother's notice was sufficient.⁴⁷ The Kell court expressly noted, however, that it was not addressing the situation where the non-custodial parent relies on the failure to serve by certified mail and is thereby prejudiced.⁴⁸

The court in Weaver v. Kelling⁴⁹ reached the same result; i.e., actual notice and failure to demonstrate prejudice waives any objection to § 452.377's technical notice requirements. In Weaver, the father opposing relocation argued "that the trial court erred in permitting [the] [m]other to relocate with the [parties'] children" because the "[m]other failed to notify him of her proposed relocation as required by § 452.377."⁵⁰ Nevertheless, the court in Weaver concluded that because the "[f]ather received actual notice of [the] [m]other's intent to relocate . . . and had the opportunity to challenge the relocation," which the father did, the father could not demonstrate "any prejudice as a result of [the] [m]other's failure to follow the technical notice requirements of the notice statute."⁵¹ Thus, the Weaver court held that the father could not complain about mother's "technical noncompliance of the statute."⁵²

However, one recent appellate case addressing the issue of the technical notice requirements of § 452.377, Baxley v. Jarred,⁵³ appears to remove the absence of prejudice from the analysis. In Baxley, on February 29, 2000, mother mailed father, by regular mail, notice that she was relocating with the parties' son to South Carolina. Father did not file his motion in opposition to the relocation until May 2, 2000, outside the 30-day time period established by § 452.377.7 for filing an objection. Sometime after father filed his motion in opposition to the relocation, mother moved to South Carolina with the parties' son. In January 2001, the trial court took up father's motion and subsequently denied mother permission to relocate with the parties' son. Mother appealed, arguing that she had an absolute right to relocate without the express consent of father or the court because father failed to timely file a motion seeking an order to prevent the relocation within 30 days after father's receipt of her notice. In response, father argued that mother did not comply with the notice requirements of § 452.377, in particular the certified mail requirement. The Baxley court disagreed with father, however, finding the fact that mother's notice was not sent by certified mail "of no consequence, . . . [given that] the evidence is undisputed that actual notice of the relocating parent's proposed relocation with the child was received by the nonrelocating parent in a timely fashion."⁵⁴

Baxley, however, presents the case left open by Kell, i.e., the case whereby the non-custodial parent relies on the failure to serve by certified mail and is thereby prejudiced. Unlike the non-relocating parents in Kell and Weaver, the father in Baxley should have been able to demonstrate prejudice. Unlike in Kell and Weaver, both opposing parties had an opportunity for a full hearing on the issue of relocation and lost on the merits. Thus, compliance with the technical notice requirements in both Kell and Weaver was non-prejudicial to the non-custodial parent. In Baxley, however, the appellate court's decision, holding that mother had an absolute right to relocate because father's motion in opposition was untimely, had the effect of denying father a hearing on the merits of the relocation issue, an issue on which father actually prevailed at the trial court level. Thus, unlike the parties in Kell and Weaver, the father in Baxley should have been able to demonstrate prejudice resulting from mother's non-compliance with the technical notice requirements of § 452.377. In essence, because mother failed to satisfy the notice requirements, father's requirement to file a motion within 30 days of receipt of the statutory notice of a proposed relocation was never technically triggered. Thus, contrary to the court's decision in Baxley, father's motion could not have been untimely. Under a broad reading of Baxley, one could argue that the technical notice requirements of § 452.377 have essentially been written out of the statute. "Actual" notice, whatever the form - potentially even oral notice - could therefore be sufficient to trigger the 30-day time period for filing an objection.

In the most recent appellate decision addressing the notice requirements of § 452.377, however, the court appears to find that at least for non-court ordered relocations, the notice provisions are "critical."⁵⁵ In Herigon v. Herigon, it was undisputed that mother failed to provide father with any form of written notice of her intent to relocate. The court noted that, without proper notice, "there is no need to file a motion to prevent relocation in that the relocation would not be permitted if effectuated."⁵⁶ In this case, however, father nevertheless filed a motion seeking to prevent mother's relocation after receiving actual notice of the mother's intent. Following a hearing on father's motion, the trial court issued an order preventing mother's relocation. In affirming the trial court's decision, the court found that "the purposes of the notice provisions of section 452.377 are logically met where the non-relocating parent files a motion to prevent relocation and receives a full hearing on the issue of the proposed relocation prior to the actual relocation."⁵⁷ Moreover, the court held that under the circumstances of the case, mother's failure to satisfy the notice provisions of § 452.377.2 did not automatically entitle father to an order preventing the relocation.⁵⁸ Rather, the trial court was required to rule upon father's motion and mother had the burden of demonstrating that the proposed relocation was made in good faith and in the best interests of the children.⁵⁹ Consequently, given the uncertainty surrounding the courts' current views regarding the formal notice requirements of § 452.377.2, non-custodial parents wishing to object to a proposed relocation should err on the side of caution and be prepared to file a motion to prevent relocation as soon as they receive "actual" notice, whatever form the notice takes.

2. Agreement Concerning Relocation

Following notice, if no objection is made to the proposed relocation, and all parties entitled to custody or visitation with the child agree to a revised custody and visitation schedule, including a revised parenting plan, the parties may submit the terms of the agreement to the court.⁶⁰ Attached to the agreement must be an affidavit with the signatures of all parties with custody or visitation rights indicating that each party assents to the terms of the agreement.⁶¹ The court, without a hearing, can then "order the revised parenting plan and applicable visitation schedule."⁶²

3. Objecting to Relocation

A party wishing to object to the relocation of a child must do so within 30 days of receiving notice of a proposed relocation.⁶³ If no party entitled to notice timely objects, then the person entitled to custody may relocate with the child "sixty days after providing notice."⁶⁴ Only a parent, however, can seek to prevent the relocation of a child.⁶⁵ A non-parent entitled to visitation with a child "may file a cause of action to obtain a revised schedule of legal custody or visitation."⁶⁶

The request for an order preventing relocation must be "accompanied by an affidavit setting forth the specific factual basis supporting a prohibition of the relocation."⁶⁷ Thereafter, the party seeking to relocate with the child must file a responsive affidavit within 14 days, absent good cause, "setting forth the facts in support of the relocation as well as a proposed revised parenting plan."⁶⁸

A party objecting to relocation, if the objection is in "good faith," cannot "be ordered to pay the costs and attorney's fees of the party seeking to relocate."⁶⁹ To date, only Cullison v. Thiessen⁷⁰ has addressed the issue of attorney's fees in a relocation case. In Cullison, the trial court found that the father's objection to the relocation was not made in good faith because the father had previously consented to a move. The appellate court, however, disagreed. In particular, the court found that father's prior consent to the move did not necessarily mean that opposition to the relocation was in bad faith, especially in light of other evidence demonstrating that greater travel costs would be imposed on the father if the children relocated and the relocation would move his children away from his extended family members.⁷¹ In addition, the court discounted the fact that in the past the father had not exercised his visitation and failed to pay child support because the evidence demonstrated that the father had attempted to rebuild his relationship with his children during the prior two years.⁷² Thus, finding the trial court's finding not supported by the evidence, the Cullison court reversed the award of attorney's fees.⁷³

4. Resolution of the Dispute

When an objection to relocation is made, the party seeking to relocate bears the "burden of proving that the proposed relocation is made in good faith and is in the best interest of the child."⁷⁴ Immediately following enactment of § 452.377 in 1998, the courts continued to use the four-factor Michel's test previously discussed to resolve such disputes.⁷⁵ In Sadler v. Favro,⁷⁶ however, the Western District, expressly noting the enactment of the new relocation statute, modified the four-factor test. In particular, while the Sadler court found that the first three factors of the test remained "important considerations in determining whether to allow relocation," it found that "the fourth factor require[d] modification."⁷⁷ Specifically, the Sadler court reasoned that because the amended statute places greater emphasis on ensuring that children have "frequent, continuing, and meaningful contact with the nonrelocating party,"⁷⁸ the fourth factor was in need of revision.⁷⁹ Thus, a slightly modified four-factor test to determine the propriety of relocation emerged from Sadler, which included the first three factors of the Michel's test and a revised fourth factor, i.e., "the realistic opportunity for visitation which can provide frequent, continuing and meaningful contact for the non-relocating party with the child if the move is permitted."⁸⁰

In April 2001, however, in Stowe v. Spence,⁸¹ the Supreme Court of Missouri held that the Michel's four-factor test, even as modified by Sadler, was inconsistent with the statutory requirements of the 1998 amendment of § 452.377. In place of the four-factor test, the Stowe Court held that "section 452.377 now requires the court to determine that the relocation: (1) is in the best interests of the child, (2) is made in good faith, and (3) if ordered, complies with the requirements of subsection 10."⁸² While setting forth the new test for relocation cases, the Stowe Court nevertheless failed to specify what standard was appropriate in determining the best interests of the child. Finding no guidance from the Supreme Court in Stowe, both the Eastern and Western Districts have used the eight best interests factors set forth in § 452.375.2 to determine whether relocation is in a child's best interest.⁸³ The § 452.375.2 best interest factors include:

(1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;

(2) The needs of the child for a 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) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;

(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;

(5) The child's adjustment to the child's home, school, and community;

(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. . . . ;

(7) The intention of either parent to relocate the principal residence of the child; and

(8) The wishes of a child as to the child's custodian.⁸⁴

Thus, following the 1998 amendment to the relocation statute and Stowe's interpretation of the statute, the inquiry in a relocation case was broadened to include any evidence bearing on the good faith of the custodial parent and the best interests of the child.

In Swisher v. Swisher,⁸⁵ the court directly addressed the good faith requirement of § 452.377.9. In its October 22, 2001 order, the trial court in Swisher relied on mother's testimony that she had no present plans to marry her paramour or move to Oklahoma in awarding mother primary physical custody of the parties' children. Shortly after the trial court's order, on January 7, 2002, father received written notice via certified mail from mother advising him that she intended to relocate to Oklahoma with the parties' children so that she could live with her new husband. Father filed a timely motion to prevent the proposed relocation and the trial court subsequently entered an order preventing mother from relocating the children, finding that mother lacked good faith in seeking to relocate because of mother's prior representations that she had no intent to remarry or relocate with the children.⁸⁶ On appeal, the Swisher court defined good faith for purposes of § 452.377.9 as the "relocating parent's motive or purpose for relocating being something other than to disrupt or deprive the nonrelocating parent contact with the children."⁸⁷ Thus, the court reasoned that good faith only refers to the question of "why" a parent wishes to relocate, and evidence concerning "if" or "when" the parent formed an intent to relocate would not be relevant, except to the extent it would bear on witness credibility.⁸⁸ Therefore, the court held that the trial court improperly relied on evidence that mother was not forthcoming in the prior dissolution proceeding concerning her intent to remarry and relocate in making its good faith determination.⁸⁹

Finally, the Stowe test states that if relocation is permitted, the court must ensure that the relocation complies with subsection 10 of § 452.377. Subsection 10 requires the court to "order contact with the nonrelocating party" sufficient to ensure "that the child has frequent, continuing and meaningful contact with the nonrelocating party."⁹⁰ "Contact" is specifically defined to include "custody or visitation and telephone access."⁹¹ In addition, at least one court has determined that "contact" also encompasses e-mail communications.⁹² In those cases where relocation is permitted, Subsection 10 also requires the court to "specify how transportation costs will be allocated between the parties and[, if appropriate,] adjust the child support."⁹³ For relocations that occur absent court intervention, i.e., where both parties either expressly or tacitly agree to a relocation, the court in Baxley held that an existing visitation and/or child support order is to "remain in effect, unless and until subsequently modified by the court" pursuant to § 452.377.10.⁹⁴

5. Effect on Custody

Relocation of a child to a location distant from a non-custodial party clearly disrupts an existing custody and visitation schedule, potentially rendering the prior custody and visitation order unreasonable. Thus, unsurprisingly, the issue of modification of custody frequently arises in relocation cases. Pursuant to § 452.410.1, a party seeking to modify a custody order must establish that a substantial change in "circumstances of the child or his custodian [has occurred] and that the modification [of custody] is necessary to serve the best interests of the child."⁹⁵ Several relocation cases have held that a proposed relocation, brought about by the custodial parent's remarriage and new spouse's residence and employment in another state, constitutes a change in circumstances sufficient to modify custody.⁹⁶ Nevertheless, while the proposed relocation may have been deemed a change in circumstances, the courts' main focus in such cases has been on the second step in a modification of custody inquiry, i.e., whether a modification is necessary to serve the best interests of the child.⁹⁷

For example, in Weaver v. Kelling,⁹⁸ after the parties' dissolution mother remarried and her new spouse accepted a promotion in Texas. Consequently, mother sought to relocate the parties' children to Texas and father opposed, arguing in part that mother's proposed move constituted a change in circumstances. While the court concluded that mother's proposed relocation did constitute a change in circumstances sufficient to modify custody, the court nevertheless concluded that the evidence demonstrated that mother's retention of custody was in the children's best interest. Thus, the court affirmed the trial court's judgment denying father's motion to modify custody.⁹⁹

Recently, however, in Baxley,¹⁰⁰ the court approached the question of whether a proposed relocation constitutes a substantial change in circumstances justifying a modification of custody under § 452.410 in a different manner. Baxley begins by stating that "it would seem axiomatic that if a parent is allowed to relocate under the statute, the relocation itself could not constitute a substantial change of circumstances justifying a modification of custody under § 452.410."¹⁰¹ Baxley reasoned that such a result would be illogical in that it would essentially permit relocation under § 452.377 but "in the same breath" prohibit relocation by changing physical custody on that very basis.¹⁰² To reach this result, Baxley analyzed § 452.377.

In particular, Baxley begins by noting that Missouri's current relocation statute makes three references to modification of custody.¹⁰³ First, subsection 5 provides that "[t]he court shall consider a failure to provide notice of a proposed relocation of a child as: (1) A factor in determining whether custody and visitation should be modified."¹⁰⁴ Second, subsection 11 provides that a party's failure to provide notice of a relocation of a child "may be considered in a proceeding to modify custody or visitation with the child."¹⁰⁵ Finally, subsection 12 provides that "[v]iolation of the provisions of this section or a court order under this section may be deemed a change of circumstance under section 452.410, allowing the court to modify the prior custody decree."¹⁰⁶ Thus, based on the express language of § 452.377, Baxley reasoned that failure to comply with the requirements of § 452.377, or, in other words, a relocation effectuated without complying with the requirements of § 452.377, can be treated as a factor or change of circumstance in modifying custody.¹⁰⁷ But Baxley found that § 452.377 does not provide that a relocation undertaken in compliance with the statute may be deemed a change of circumstances justifying modification of custody pursuant to § 452.410.¹⁰⁸ Thus, Baxley concluded:

In expressly providing that [a noncompliant relocation] would give rise to a substantial change of circumstances sufficient to modify custody, but not so providing in [a compliant relocation] situation, we can infer that the legislature did not intend for a relocation permitted by § 452.377 to be deemed a substantial change of circumstances on which to predicate a modification of custody under § 452.410.¹⁰⁹

The court's logic in Baxley makes intuitive sense and protects custodial parents from having to make the Hobson's choice of relocation or loss of custody.¹¹⁰ In addition, in forcing custodial parents to choose between relocation and custody, the non-custodial parent is placed in a superior bargaining position. Finally, and most important, requiring parents to choose between custody of their children and a new opportunity that benefits that parent and the family may ultimately cause the child to feel responsible for the parent's choice. Such a result would certainly not be in the best interests of the child if it increases the child's level of stress and anxiety, especially over issues of loyalty to one parent or the other. Thus, Baxley's holding that relocation, if effectuated in compliance with § 452.377, is not a change in circumstances sufficient to justify a modification of custody removes what could be viewed as judicial blackmail from the relocation question and furthers the progression of Missouri's relocation law toward a policy that tends to favor, rather than restrict, relocation.

III. Conclusion

Prior to 1984, if relocation would deny a child the opportunity for contact with the non-custodial parent, permission to relocate was generally denied. Following the enactment of § 452.377 in 1984, relocation would be permitted with the written permission of the other parent or upon court order. Thus, a non-custodial parent could effectively hold the custodial parent hostage by failing to grant his affirmative permission to relocate, thereby forcing the custodial parent to go to court. Then, whether the court would grant permission to relocate was uncertain. Missouri's new relocation statute, however, recognizes the need for relocating parents to "not be unduly delayed from relocating where the non-relocating parent does not affirmatively object in a timely fashion."¹¹¹ In this regard, § 452.377 removes the non-relocating parent's ability to hold the relocating parent hostage by shifting the burden of proceeding to court onto the non-relocating parent. Following the court's decision in Baxley, failure to object to a proposed relocation frees the custodial parent to pack the moving truck. Nevertheless, as Missouri's relocation law has evolved to favor relocation, when forced to decide such a contest, especially in cases involving two capable and loving parents, relocation cases remain a problem incapable of a satisfactory solution.

Footnotes

¹ Jill S. Kingsbury is a law clerk to the Honorable Patricia Breckenridge, Missouri Court of Appeals for the Western District, and formerly was the family law clerkship coordinator for the Jackson County Circuit Court, Family Court Division. She received her B.A. (1987), M.A. (1989), and J.D. (2001), from the University of Missouri-Columbia. The opinions expressed in this article are solely those of the author.

² Specifically, in Missouri during 2001 there were 42,086 marriages, 23,458 dissolutions (56% of the number of marriages), and 11,601 dissolutions involving children (49% of the number of dissolutions). Mo. Vital Statistics 2001, Mo. Dep't of Health & Senior Servs. available at http://www.dhss.state.mo.us/MVS01/Index.pdf.

³ In particular, of 11,601 dissolutions involving children, the mother was awarded custody in 7,192 cases, the father was awarded custody in 1,203 cases, and joint custody was awarded in 3,141 cases. Mo. Vital Statistics 2001, Mo. Dep't of Health & Senior Servs. available at http://www.dhss.state.mo.us/MVS01/Index.pdf.

⁴ In 2000, 45% of Missouri's residents more than five years old lived in a different house than they did in 1995. Nearly 21% of relocating residents moved to a different county, with 9% moving to a different state. Census 2000, Profile of Selected Social Characteristics, U.S. Census Bureau.

⁵ Samuels v. Samuels, 713 S.W.2d 865, 868 (Mo. App. W.D. 1986).

⁶ Pelts v. Pelts, 425 S.W.2d 269, 271 (Mo. App. S.D. 1968). See also Samuels, 713 S.W.2d at 868 (articulating the rule that "the court fashions its orders for the best interests of the child.")

⁷ Perr v. Perr, 205 S.W.2d 909, 912 (Mo. App. E.D. 1947) ("[B]oth [parents] are devoted to the child; and there is no question but that both of them are of good moral character. The child should therefore be afforded the opportunity of having all reasonable contacts with both his parents.").

⁸ Pelts, 425 S.W.2d at 271.

⁹ Id.

¹⁰ Id.

¹¹ Section 452.377, RSMo 1994.

¹² Section 452.377, RSMo 1994 and § 452.377.12, RSMo 2000. See also § 452.411, RSMo 2000, which similarly provides that "[i]f either parent of a child changes his residence to another state, such change of residence of the parent shall be deemed a change of circumstances under section 452.410, allowing the court to modify a prior visitation or custody decree."

¹³ Samuels, 713 S.W.2d at 869.

¹⁴ Michel v. Michel, 834 S.W.2d 773, 777 (Mo. App. S.D. 1992).

¹⁵ Id.

¹⁶ Id. at 776.

¹⁷ Id. (quoting In re Marriage of Greene, 711 S.W.2d 557, 564 (Mo. App. S.D. 1986)).

¹⁸ 989 S.W.2d 629 (Mo. App. W.D. 1999).

¹⁹ Id. at 633.

²⁰ 8 S.W.3d 222 (Mo. App. E.D. 1999).

²¹ Id. at 226.

²² Id. at 226-27.

²³ 989 S.W.2d at 634.

²⁴ Id. at 634-35.

²⁵ See Green v. Green, 26 S.W.3d 325, 328 (Mo. App. E.D. 2000).

²⁶ Id. at 328-29.

²⁷ In 1997, the American Academy of Matrimonial Lawyers also proposed a Model Relocation Act. See American Academy of Matrimonial Lawyers Proposed Model Relocation Act: An Act Relating to the Relocation of the Principal Residence of a Child, 15 J. Am. Acad. Matrim. Law. 1 (1998), available at http://www.aaml.org.

²⁸ See § 452.377.2, RSMo 2000.

²⁹ See § 452.377.7, RSMo 2000.

³⁰ See § 452.377.9, RSMo 2000.

³¹ Compare § 452.377, RSMo 1994 with § 452.377.1, RSMo 2000.

³² Compare § 452.377.2, RSMo 1994 with § 452.377.2, RSMo 2000 ("Notice of a proposed relocation of the residence of the child, or any party entitled to custody or visitation of the child, shall be given . . . .") (emphasis added) § 452.377.2, RSMo 2000.

³³ See § 452.377, RSMo 1994; § 452.377.1, RSMo 2000.

³⁴ Section 452.377.2, RSMo 2000.

³⁵ Id.

³⁶ Id.

³⁷ Section 452.377.3, RSMo 2000.

³⁸ Section 452.377.4, RSMo 2000.

³⁹ Section 452.377.5, RSMo 2000.

⁴⁰ Section 452.377.12, RSMo 2000.

⁴¹ Weaver v. Kelling, 53 S.W.3d 610, 616-17 (Mo. App. W.D. 2001); see also Kell v. Kell, 53 S.W.3d 203, 208-09 (Mo. App. E.D. 2001); Baxley v. Jarred, 91 S.W.3d 192, 205-06 (Mo. App. W.D. 2002).

⁴² 53 S.W.3d 203, 208 (Mo. App. E.D. 2001).

⁴³ Id.

⁴⁴ Id.

⁴⁵ Id. at 209.

⁴⁶ Id.

⁴⁷ Id.

⁴⁸ Id.

⁴⁹ 53 S.W.3d 610 (Mo. App. W.D. 2001).

⁵⁰ Id. at 612.

⁵¹ Id. at 617.

⁵² Id.

⁵³ 91 S.W.3d 192 (Mo. App. W.D. 2002).

⁵⁴ Id. at 205.

⁵⁵ Herigon v. Herigon, 121 S.W. 3d 562, 567 (Mo. App. W.D. 2003).

⁵⁶ Id. at 566.

⁵⁷ Id. at 567.

⁵⁸ Id.

⁵⁹ Id.

⁶⁰ Section 452.377.6, RSMo 2000.

⁶¹ Id.

⁶² Id.

⁶³ Section 452.377.7, RSMo 2000.

⁶⁴ See § 452.377.7, RSMo 2000; Baxley v. Jarred, 91 S.W.3d 192, 206 (Mo. App. W.D. 2002); Kell v. Kell, 53 S.W.3d 203, 208 (Mo. App. E.D. 2001).

⁶⁵ Section 452.377.7, RSMo 2000.

⁶⁶ Section 452.377.8, RSMo 2000.

⁶⁷ Section 452.377.7, RSMo 2000.

⁶⁸ Id.

⁶⁹ Section 452.377.13, RSMo 2000.

⁷⁰ 51 S.W.3d 508 (Mo. App. W.D. 2001).

⁷¹ Id. at 514-15.

⁷² Id. at 514.

⁷³ Id. at 515.

⁷⁴ Section 452.377.9, RSMo 2000. This issue has created the greatest controversy in relocation cases and has the largest disparities among varying jurisdictions. The issue is so controversial that the Model Act for Relocation Litigation proposed in 1997 by the American Academy of Matrimonial Lawyers included three alternatives, leaving the issue for each state's legislature to resolve. In particular, the model act's three proposed alternatives include: (1) "[t]he relocating party [bears] the burden of proof," (2) "[t]he non-relocating [party bears] the burden of proof that the objection . . . is made in good faith and that relocation is not in the best interest of the child," and (3) a shifting burden of proof whereby "[t]he relocating party has the burden of prov[ing] that the proposed relocation is made in good faith" and then "[i]f that burden of proof is met, the burden shifts to the non-relocating [party] to show [that] the proposed relocation is not in the best interest of the child." See § 407, American Academy of Matrimonial Lawyers Proposed Model Relocation Act: An Act Relating to the Relocation of the Principal Residence of a Child, 15 J. Am. Acad. Matrim. Law. 1, 22 (1998).

⁷⁵ See, e.g., Green v. Green, 26 S.W.3d 325 (Mo. App. E.D. 2000); Lavalle v. Lavalle, 11 S.W.3d 640 (Mo. App. E.D. 1999).

⁷⁶ 23 S.W.3d 253 (Mo. App. W.D. 2000).

⁷⁷ Id. at 257-58.

⁷⁸ See § 452.377.10, RSMo 2000 ("If relocation is permitted: (1) The court shall order contact with the nonrelocating party including custody or visitation and telephone access sufficient to assure that the child has frequent, continuing and meaningful contact with the nonrelocating party unless the child's best interest warrants otherwise. . . .").

⁷⁹ 23 S.W.3d at 258.

⁸⁰ Id.

⁸¹ 41 S.W.3d 468, 469 (Mo. banc 2001).

⁸² Id.

⁸³ See, e.g., Dorman v. Dorman, 91 S.W.3d 167, 172 (Mo. App. W.D. 2002); Cullison v. Thiessen, 51 S.W.3d 508, 511-12 (Mo. App. W.D. 2001); Abernathy v. Meier, 45 S.W.3d 917, 924 (Mo. App. E.D. 2001). The Southern District has yet to directly address the issue.

⁸⁴ Section 452.375.2, RSMo 2000.

⁸⁵ Swisher v. Swisher, WD61874, WL 22768629 (Mo. App. W.D. Nov. 25, 2003).

⁸⁶ Id. at *2-3.

⁸⁷ Id. at *3.

⁸⁸ Id. at *4.

⁸⁹ Id. at *5.

⁹⁰ Section 452.377.10, RSMo 2000.

⁹¹ Id.

⁹² See, e.g., Abernathy v. Meier, 45 S.W.3d 917, 926 (Mo. App. E.D. 2001).

⁹³ Section 452.377.10(2), RSMo 2000.

⁹⁴ 91 S.W.3d 192, 204 (Mo. App. W.D. 2002).

⁹⁵ Section 452.410.1, RSMo 2000; see also Searcy v. Seedorff, 8 S.W.3d 113, 116 (Mo. banc 1999).

⁹⁶ See, e.g., Weaver v. Kelling, 53 S.W.3d 610, 613 (Mo. App. W.D. 2001); Newell v. Rammage, 7 S.W.3d 517, 521 (Mo. App. W.D. 1999); Spire v. Adwell, 36 S.W.3d 28, 31 (Mo. App. W.D. 2000). But see Siegfried v. Remaklus, 95 S.W.3d 107, 112-13 (Mo. App. E.D. 2001) (proposed relocation is not significant change of circumstances, in and of itself, to mandate a change of custody).

⁹⁷ See, e.g., Weaver, 53 S.W.3d at 613 ("While Mother's relocation of the children to Texas constituted changed circumstances sufficient to modify custody, the record supported the trial court's determination that Mother's retention of primary physical custody of the children was in their best interest.").

⁹⁸ 53 S.W.3d 610 (Mo. App. W.D. 2001).

⁹⁹ Id. at 613.

¹⁰⁰ 91 S.W.3d 192 (Mo. App. W.D. 2002).

¹⁰¹ Id. at 208.

¹⁰² Id.

¹⁰³ Id. at 209.

¹⁰⁴ Id. (citing § 452.377.5, RSMo 2000 (emphasis added)).

¹⁰⁵ Id. (citing § 452.377.11, RSMo 2000 (emphasis added)).

¹⁰⁶ Id. (citing § 452.377.12, RSMo 2000 (emphasis added)).

¹⁰⁷ Id.

¹⁰⁸ Id.

¹⁰⁹ Id. The Baxley court also harmonized § 452.377 and § 452.411, which provides: "If either parent of a child changes his residence to another state, such change of residence of the parent shall be deemed a change of circumstances under section 452.410, allowing the court to modify a prior visitation or custody decree." Section 452.411, RSMo 2000. Specifically, the court concluded that § 452.377 and § 452.410 can be harmonized by reading § 452.411 as only applying where relocation occurs in violation of § 452.377. Baxley, 91 S.W.3d at 209.

¹¹⁰ Baxley, 91 S.W.3d at 209 ("[W]e sincerely doubt that the legislature intended to totally confuse and frustrate parents involved in custody disputes