by Karen Plax & Catherine J. Barrie
Synopsis: Since 1995, support for legislative reform of Missouri's domestic relations laws has resulted in the introduction of numerous bills that would dramatically change the family law practice. The first part of this article outlines the legislative history which led to the changes enacted during the 1998 session, and summarizes The Missouri Bar's involvement in responding to various legislative proposals. The second part summarizes changes in effect on August 28, 1998 which will significantly impact Missouri family law practitioners.
House Committee Substitute for Senate Substitute for Senate Bill No. 910, truly agreed and finally passed on May 14, 1998, represented the conclusion of several years of work by legislators and "fathers' rights" interest groups seeking reform of Missouri's family laws. This bill was signed by Governor Carnahan on July 13, 1998 and became effective August 28, 1998.
The genesis of this year's comprehensive revisions can be found in Senate Bill 114, introduced in the 1995 legislative session by Senator Bill McKenna. Senate Bill 114 provided for expedited, pro se, ex parte contempt proceedings to enforce visitation orders and criminal penalties for violation of court orders concerning custody and visitation. The bill was assigned to the Senate Judiciary Committee, but no hearing was scheduled. In December of the same year, Senator McKenna introduced Senate Bill 576 for consideration by the 1996 General Assembly. That bill proposed a new public policy statement assuring children "frequent, continuing and meaningful contact with both parents" and further declared that the policy of the state is "to enforce visitation and custody orders as vigorously and thoroughly as child support orders." Judges were ordered to first consider an award of joint physical and joint legal custody in every case; that joint physical and legal custody is in the child's best interest was made a rebuttable legal presumption. Relocation of a child by a custodial parent that would detrimentally impact the other parent's visitation was prohibited, except upon order of the court or written consent of the other parent having visitation or custody rights. Senate Bill 576 was given a hearing in the Senate Civil and Criminal Jurisprudence Committee but progressed no further in the 1996 General Assembly.
In 1997 Senator McKenna, recently elected Pro Tem of the Senate, introduced Senate Bill 51. In addition to the provisions of Senate Bill 576 described above, Senate Bill 51 reintroduced a provision for pro se, ex parte enforcement of visitation rights, similar to that in the prior year's Senate Bill 114. Senate Bill 576 also proposed elimination of child support after age 18. Senator McKenna aggressively pushed for passage of Senate Bill 51 during the 1997 session. The legislation passed the Senate on April 3, 1997, but was defeated by the House Budget Committee on May 12, 1997, five days before the end of the session. The defeat was based on fiscal concerns about the cost of new procedures facilitating pro se litigation of visitation disputes; opposition by the bar was also widely considered to play a major role in the legislation's demise. Notwithstanding the defeat of Senate Bill 51, several changes relating to abatement of child support and imposing additional conditions on payment of support past age 18 were passed as part of Senate Bill 361. While working to defeat Senate Bill 51, the Bar's Family Law Section committed itself to study Missouri laws relating to child custody, relocation of custodial parents and visitation enforcement, and to draft its own solution for the next legislative session.
In preparing for the inevitable reintroduction of 1998 legislation similar to Senate Bill 51, members of the Family Law Section recognized that several legitimate concerns had prompted the legislation. These included the need for a less expensive and quicker remedy for visitation enforcement.
On June 11, 1997, Missouri Bar President Charles Weiss met with Governor Carnahan to urge appointment of a gubernatorial commission to study the state's domestic relations laws. The bar proposed that such a commission include not only lawyers, but social workers, psychologists, educators and other persons having special expertise relating to the needs of children. It was also suggested that representatives of the supreme court, governor's office and general assembly be included. However, the idea of appointment of a gubernatorial commission was abandoned after Speaker of the House Steve Gaw and Senate Pro Tem Bill McKenna appointed a Joint Interim Committee on Family Law, co-chaired by Senator Harold Caskey and Representative Patrick Dougherty. The Joint Interim Committee held hearing in Jefferson City on October 13 and 14, 1997.
Although members of the Family Law Section and individual judges with family law assignments testified before the House and Senate Joint Interim Committee, the bar continued to believe that an interdisciplinary approach to changes in family law statutes would be valuable. Karen Plax, legislative chair of the Family Law Section, organized a symposium on "Improving Missouri Dissolution Laws and Judicial Procedures Which Impact Children," which was presented in Kansas City on November 1, 1997 and in St. Louis on February 7, 1998. More than 450 attorneys, judges, psychologists, psychiatrists, educators, mediators and legislators from across the state participated in the symposiums. Discussion groups were formed to develop ideas about how to improve Missouri's law in six areas: custody evaluation practices, visitation enforcement, forms of custody, mediation, relocation, and family violence and abuse. The conclusions and recommendations developed at the first symposium were later published and distributed to all participants and to all members of the legislature's Joint Interim Committee.
In another effort to find possible legislative solutions, the bar's senior legislative counsel conducted independent research of laws of all other states relating to joint custody, visitation enforcement and relocation issues. After reviewing this research, as well as conclusions and suggestions reached at the Kansas City symposium on family law issues, the Family Law Section developed the following approach to respond to issues raised in Senate Bill 51:
Review of other states' custody laws showed Missouri aligned with the majority of states in permitting joint custody, so long as such an award is in the best interest of the child. The accompanying map illustrates state child custody statutes. The research also indicated that virtually every jurisdiction that had adopted legislation establishing a rebuttable presumption of joint custody had repealed the statutes.1 For this reason, no change was recommended in Missouri's custody statutes.
A specific mileage restriction on a custodial parent's relocation of a child within the state was considered arbitrary, unreasonable and probably unconstitutional. However, some limitation on intrastate relocation was appropriate. To address this need, a proposal based on a model act approved by the American Academy of Matrimonial Lawyers was recommended. This proposal required a custodial parent to provide notice to the other parent of any relocation, and further provided for, upon objection within 30 days, a judicial procedure to determine whether the move is in the child's best interest.
A pro se (but not ex parte) procedure to assist in resolving disputes relating to visitation was also suggested. This procedure provided for pro se filing of a family access complaint upon payment of standard court costs and a $35 family access fee. Notice would be sent to the alleged violator within five days after filing, with attempted informal voluntary resolution of the dispute by mediation within 14 days. All complaints would be finally disposed of within 60 days. This proposal was based on a pilot project, developed by Judge Thomas Frawley, already working successfully in the 22nd Judicial Circuit.
On November 14, 1997, Family Law Section Chair James T. Cook presented the above proposals, which had been approved by the Family Law Section, to the Board of Governors of The Missouri Bar. After approval by a two-thirds majority of the board, Representative Philip Smith and Representative Marsha Campbell introduced these proposals in the 1998 session as House Bill 1065 (relocation issues) and House Bill 1180 (visitation enforcement). Representative Karl DeMarce introduced House Bill 1121, that made changes the Family Law Section separately proposed regarding legal separation, unrelated to Senate Bill 51.
The Joint Interim Committee did not draft any specific legislation, although its final report recommended legislation "requesting the Supreme Court of Missouri to require circuits by local rule to establish expedited procedures for enforcing visitation and custody orders." However, as was expected, Senator McKenna suggested a more aggressive approach to reform in Senate Bill 651, filed on January 6, 1998. Senate Bill 651 was, from the bar's standpoint, much improved over its predecessors. However, the following provisions were still considered problematic: a preference in favor of joint physical and joint legal custody, with the burden of coming forward with evidence that a particular custodial arrangement is not in the best interest of the child upon the parent opposing such an award; a specific prohibition against relocation of the residence of a child more than 50 miles from the current residence of the child, except upon order of the court or written content of persons with physical or legal custody or visitation rights; a felony conviction for intervening with visitation rights; and, finally, sheriff enforcement of custody or visitation rights pursuant to an expedited pro se procedure.
The 1998 session was largely spent negotiating between the approach suggested by the bar in House Bill 1065 and House Bill 1180 and the approach of Senator McKenna as embodied in Senate Bill 651 relating to the issues of joint custody, relocation and visitation enforcement. Adding to the mix, House Bill 972, introduced by Representative Pat Dougherty, proposed other sweeping changes to Missouri's family law statutes, many of which were of concern to the bar. Among these provisions were: replacing all references to visitation with "parenting time" but without transitional provisions; requiring parenting plans to be submitted by a divorce petitioner but precluding any input by attorneys; criminalizing false allegations of domestic abuse; and mandating a preferred order of custody with joint physical and joint legal custody first in the order of preference.
House Bill 972 and Senate Bill 651 ultimately became entwined after Senate Bill 651 passed the Senate and was assigned to the House Children, Youth and Families Committee, chaired by Representative Dougherty. In end of session maneuvering, Senate Bill 651 was abandoned as a vehicle. Instead, a hybrid of Senate Bill 651, House Bill 1065, House Bill 1180, and House Bill 972 was made a part of Senate Bill 910, a bill originally confined to federally mandated child support provisions. Although the bar did not fully support the changes enacted in Senate Bill 910, most of the major concerns of Family Law Section members had been addressed in the final Conference Committee Report, and in the final days of the session the bar did not actively oppose the bill.
Following is a summary of changes in the law, which became effective on August 28, 1998, which will significantly impact Missouri family law practitioners.
Senate Bill 910 contains numerous significant changes in the dissolution statutes. These include new rules in § 452.377 regulating the custodial parent's right to move the permanent residence of a child, a Family Access Motion to enforce visitation in § 452.400, and a parenting plan requirement in § 452.305. The remainder of this article will detail these new provisions with some discussion of the background and reasons for the changes, as well as an analysis of their significance and practical application.
Section 452.300 now allows a petition for dissolution or legal separation to be filed in the county of residence of either the petitioner or the respondent. A major change is that the respondent, prior to filing a responsive pleading, can move to change the venue from the petitioner's county of residence to the respondent's county of residence. The grounds for a change of venue are: 1) that for the 90 days immediately preceding the filing of the petition, the children of the marriage resided in the respondent's county of residence; or 2) the best interests of the children require transfer to the other county because the children and at least one parent have a significant connection with the county and substantial evidence concerning the future care and relationships of the children is in that county.
Testimony at the hearings of the Joint Interim Committee on Family Law of the difficulties encountered when a spouse moves from the family home to a distant county and then files a petition for dissolution2 supported the changes in this section. A spouse forced to litigate away from the home, nearby witnesses, school, and other information is at a disadvantage economically and practically. The change of venue option can now be used to prevent this result.
Senate Bill 910 revises § 452.305 to clarify the requirements for a legal separation. Section 452.305 required allegation that the marriage is irretrievably broken to obtain a legal separation. However, Colobianchi v. Colobianchi, 646 S.W.2d 61 (Mo. banc 1983),3 held that a legal separation could not be granted if the party requesting it claimed the marriage is irretrievably broken. This inconsistency between the case law and statute caused pleading problems. The new § 452.305 requires the litigant seeking a legal separation to plead that the marriage is not irretrievably broken. Senate Bill 910 also changes the requirement that a requested legal separation must be granted to a standard requiring a legal separation only if the judge finds that the marriage can be preserved.
Another corrective measure included in Senate Bill 910 in § 452.310 affects custody of a child during the pendency of the dissolution action. The existing statute provides that the parent with custody of the child on the date the Petition for Dissolution is filed has the right to retain physical custody of the child until the dissolution is concluded. Parents sometimes used this provision to gain an advantage in contested custody actions. For example, a parent would establish a new residence, pick the children up from school, and then file a dissolution petition. That parent then had the right to primary custody of the children throughout what often became an extended litigation process, during which the children could become settled in the new home. When the case finally came to trial to determine the ultimate custody, the judge often was reluctant to change this established custody arrangement. The statutory language gave no regard to the children's stability or to which parent had been the primary caretaker. Although a motion for temporary change of custody was theoretically available, many circuits in the state lacked the judicial manpower to schedule temporary custody hearings.
Section 452.310 now provides that the children shall not be removed from the parent with whom the children resided for the 60 days before the filing of the Petition for Dissolution. Thus, a spouse cannot gain an advantage by arbitrarily removing a child from the other parent and "racing" to the courthouse. In some situations where the child actually resided with both parents prior to the initiation of the dissolution action, the parents and children may all continue to reside in the family residence during the dissolution process.
Another modification to § 452.310 mandates filing a detailed and comprehensive "parenting plan" with the Petition and the Answer.
A bill proposed in the 1997 legislative session had included the immediate parenting plan concept. Many family law attorneys opposed this, suggesting that the parties needed time to adjust to the divorce circumstances and that decisions regarding the children were better made when the initial highly charged emotions had diminished. They also asserted that, after some experience with time-sharing and an opportunity for mediation, parents might be more willing to compromise their original views on custody. Thus, delaying spelling out each party's positions on these issues in a parenting plan until later in the process seemed beneficial. Nevertheless, some members of the House continued to push for early filing of a parenting plan. In fact, these legislators also wanted to prevent attorneys from any involvement in developing the parenting plans. An early version of House Bill 972 stated that a lawyer could not assist the parents in developing the parenting plan. This restriction was not included in Senate Bill 910.
One reason legislators favored the immediate filing of a parenting plan was to focus the parents on dealing with issues relating to the children. Another perception among legislators is that more specificity in arrangements regarding sharing time and decisions concerning children will reduce conflict arising from imprecise and unclear orders. The new parenting plan requirement should result in fewer vague orders, since the court must order a parenting plan in every judgment.
Section 452.310 details the specific timesharing issues which the plan must address, including holidays, school year, and summer schedules. If a parent wants the other parent's contact with the children supervised or limited in some way, the plan must include the requested limitations and the reasons for the restrictions. The parenting plan also includes details of sharing legal decisions on education, health insurance, and child care. A parent who wants sole legal custody must delineate reasons for this in the plan. Finally, the plan must include recommendations for the child's immediate support, health insurance coverage and payment of education and other expenses.
If the parenting plans suggested by each parent differ substantially and the differences are not resolved by negotiation, either party can file a motion and, after a hearing, the court must issue an order addressing all of the statutory parenting plan components.
Senate Bill 910 requires the Supreme Court, within 120 days of the effective date of the statute, to develop guidelines for a parenting plan form and to prepare a handbook to be mailed to each litigant in a dissolution action describing the advantages of alternative dispute resolution and of the parties agreeing on a parenting plan, as well as describing other new procedures in this statute. The genesis of these sections is the belief of many legislators that parents should be empowered to take a more active role in the dissolution.
Several important changes were made regarding continuation of child support beyond age 18. In 1997, Senate Bill 361 added a new requirement to § 452.340 that a child over 18 must carry 12 credit hours each semester to be eligible for continued child support. This mandate was to remedy situations where a child who takes one class remained eligible for child support. The 12 hour per semester requirement, however, created unjust situations for a child with an illness or who had an accident or who was too poor to afford to pay for 12 hours of school. It was also unclear whether the 12 hours per semester applied to summer school. As part of its proposed legislation, the Family Law Section recommended changes to § 452.340 to remedy these problems, many of which were adopted. Senate Bill 910 modifies § 452.340 so that a child with a diagnosed learning disability or physical disability or diagnosed health problem which limits the child's ability to maintain 12 hours may now take fewer hours and continue to receive child support. Also, a child who works 15 hours per week during the school year can carry as few as 9 hours per semester.
Senate Bill 910 also eliminates the confusing credit against child support for college expenses enacted in 1997. The Family Law Section's proposed legislation to clarify the relationship of payment of college expenses and the amount of child support was not adopted except for one section -- that the court may order the tax exemption for a college age child to a parent after analyzing the benefits pursuant to federal tax law. This is in recognition of the Taxpayer Relief Act of 1997,4 which allows a parent to use the Hope Education Credit5 and the Lifetime Learning Credit6 only if that parent can claim the exemption for the child.
The Missouri Bar, speaking through designated members of the Family Law Section, opposed one provision in § 452.380, which was added in the last days of the session that is, authorizing the court to abate past as well as future child support for interference with visitation.
A new statutory section relating to the support of children supported by the bar prohibits a spouse from terminating health, dental and vision insurance existing at the filing of the Petition for Dissolution or Legal Separation. The court must now also consider the time a child spends with each parent in determining child support.
A recurrent theme in the legislative hearings on various family law bills was that state and federal resources have been allocated to collect child support without similar resources being available to remedy interference with visitation.7 Those appearing at public hearings also frequently asserted that judges do not give adequate attention to violations of visitation orders.8 In the many bills dealing with family law, different ideas were advanced to remedy this. Most of these were punitive, for example, making interference with visitation a felony. Senate Bill 51 in the 1997 session provided for an enforcement procedure which allowed transfer of custody for a denial of visitation without even notifying, much less serving, the custodial parent. The Family Law Section proposed a procedure in this legislative session which included a family access motion to enforce visitation. Although Senate Bill 910 contains that terminology and some of the concepts, it is quite different from the bar-drafted bill.
Section 452.400 requires the Office of State Courts Administrator to develop a form that litigants can use (without a lawyer if they so choose) to specify the details of interference with or denial of physical custody or visitation rights without good cause. Each court must provide a clerk to explain to the aggrieved party how to file the family access motion. Within five days of receipt of the complaint, the court must initiate personal service of the motion and a notice on all parties with visitation or custody rights. The party against whom the complaint has been made has 10 days to file a written response with the circuit clerk.
The next phase of the new enforcement procedure involves alternative dispute resolution in those circuits with alternative dispute resolution programs. The clerk must advise the parties of the availability of alternate dispute resolution services, and may schedule an appointment for attempted resolution of the problem through mediation. If the mediation fails or if no alternative dispute resolution exists in the circuit, within 14 days the matter must be scheduled for hearing and a final judgment issued on the complaint within 60 days of the service of the motion. The statute specifies remedies including, but not limited to: compensatory time for the missed visitation, a fine up to $500, and counseling for the violator on the importance of the child's relationship with the other parent. These remedies were developed from the bar's review of other state's statutes.
The legislators desired to provide a quick and less expensive method to enforce visitation problems. Although the motion can be filed pro se, the alleged violator may seek counsel to defend against the complaint. The short time limits imposed on the court give these motions higher priority on the court docket than any actions under § 452 except Chapter 455 adult abuse actions and child abuse complaints. One immediate consequence of the number of anticipated filings of such motions is that cases with lower priority, such as dissolutions, will likely be delayed in those circuits where judges already face enormous caseloads.
The testimony at the Joint Interim Committee hearings confirmed that some problems in enforcing visitation arose from vague or unclear orders.9 For example, a visitation order which stated the child was to spend "every other holiday" with a parent without listing the specific holidays and the year in which each parent had each holiday often resulted in controversies as to a parent's right to see the child on a particular day. The new statutory scheme envisions more specificity in physical time sharing arrangements starting with the detailed parenting plan. A change to § 452.400 that the court shall enter an order specifically detailing the visitation also is to assure enforceable visitation judgments.
Another significant statutory change regarding visitation and physical custody is § 452.400, which requires the judge to order all parties to a dissolution action and the children to comply with the orders regarding custody and visitation. This change in the statute should allow the custodial parent to enforce specified visitation when the other parent fails to exercise the ordered time with the children. Another possibility is that a parent might seek reimbursement for child care costs incurred due to the failure of the other parent to have the children during the specified time. The costs to custodial parents from the failure of parents to exercise their scheduled visitation was identified at the hearings by a prosecutor who enforces collection of child support.10 Hopefully, the fact that § 452.400 states that the judge shall order all parties to comply with the custody orders will allow noncompliance with visitation to be enforced as well as interference with visitation.
In recent years, family law legislation has added various measures aimed at protecting children from violence and abuse. Senate Bill 910 is no exception. Section 452.400 prohibits visitation if a parent has been found guilty of or pled guilty to a felony under RSMo §§ 566 or §§ 568 (except § 568.040) or to an offense committed in another state when the child is a victim which would be a felony in Missouri.
Section 452.377 creates new notice requirement before moving a child's permanent residence and requires a parent objecting to the move to file a motion seeking to prevent it. Relocation is defined as "a change in the principal residence of a child for a period of 90 days or more, but does not include a temporary absence from the principal residence". Significantly, this applies to any permanent move, not just moves outside of Missouri as in the current law.
A parent must now notify the other parent and any party with visitation or custody rights in writing, return receipt requested, 60 days before a move. If there are exigent circumstances, the court can allow a shorter notice time. The notice must include: 1) the intended residence and mailing address and, if these are not known, the city; 2) the home telephone number of the new residence; 3) the date of the intended move; and 4) if the move is of a child's residence, a statement of the reasons for the relocation and a proposed revised custody or visitation schedule. The court can limit the disclosure of this information if the health or safety of a child or the parent would be unreasonably at risk by such notice. To make sure that every party understands this duty, each order regarding custody or visitation must contain specific language.11
The other parent who objects to the move must file a motion specifying the reasons for opposition to the move within 30 days of receiving the notice. A party who objects in good faith shall not be ordered to pay the other parent's attorney fees. If no opposing motion is filed, the parent can move without court order.
If the parties agree to revisions in custody or visitation necessitated by a move, they may submit it to the court with an affidavit signed by all parties and the court may enter a revised order without a hearing.
The move will be allowed if the parent seeking to relocate the child proves that it is in the child's best interest. The new language of § 452.405 may add an additional burden in that it states that the legal custodian shall not exercise legal custody in such a way as to significantly and detrimentally impact the other parent's visitation or custody rights. Almost any move of significant distance would have this impact. If the court grants a move, the judge must order revised contact with the nonrelocating parent, including telephone access, how transportation costs shall be allocated, and shall also adjust the child support as appropriate considering the transportation costs.
A third party with visitation rights may file a motion to modify the visitation but not to prevent the move. This is consistent with Komosa v. Komosa, 939 S.W.2d 479 (Mo. App. _.D. 1997),12 which differentiated between the rights of parents and those of third parties in objecting to a child's move to Colorado with a parent.
The relocation changes are based on the Model Relocation Act13 drafted by the American Academy of Matrimonial Lawyers. The Family Law Section based its proposed relocation legislation on this model with changes specific to Missouri caselaw. The statute as passed has substantial parts of the Family Law Section drafts, but other important provisions were not included in Senate Bill 910. Some of these include a procedure for temporary moves and a delineation of the important, relevant, specific factors the court should consider.
The bill contains numerous other changes. For example, the judge must now divide marital debts as well as marital property in a dissolution or legal separation action pursuant to § 542.330. Previously the court had the authority to divide debts but was not required to do so.
Several provisions regarding payment of attorney fees were modified. Section 452.355 allows the court to order a party to pay the other party's costs and attorney fees incurred prior to the commencement of the proceedings and after entry of final judgment. In several sections it makes the award of attorney fees mandatory for actions or violations of custody orders without good cause.14
The custody provisions in § 452.375 were modified slightly. The definition now specifies that joint physical custody means significant but not necessarily equal periods of time with each parent. Third party custody is defined as a third party designated as the legal and physical custodian. The available custody options are spelled out with a requirement in joint physical custody arrangements that one parent's home be designated the child's mailing address for educational purposes.
The factors to be considered in awarding custody were rearranged, but with only minor wording changes. An added limit is that the court cannot use the fact that a parent home schools a child as the sole factor in determining custody. The public policy statement was revised to state that frequent, meaningful and continuing contact with both parents is in the child's best interest unless the court finds otherwise. Members of the Family Law Section lobbied against "predefined" best interest of the children. However the bar was not successful in keeping this new public policy statement out of the final bill.
One significant requirement in Senate Bill 910 is that in contested custody actions the judge must include written findings in the judgment as to how the custody decision relates to the public policy statement and the factors enumerated in § 452.375. The requirement to include specific findings is mandated even if no attorney requests findings of fact.
Sections 104.50, 287.820 and 476.688 allow a garnishment or Writ of Sequestration to collect child support and maintenance from certain public pensions.
Section 452.423 now allows each party in Chapters 210 or 452 actions to disqualify one guardian ad litem without giving any reason so long as the motion to disqualify is filed within 10 days of the guardian's appointment. For cases in which the guardian was appointed prior to the passage of the statute, the guardian may be disqualified on application within 10 days of the statute's effective date.
Senate Bill 910 requires that all circuits establish a program of educational sessions for parties to a dissolution. Such programs already exist in the largest circuits, but this will be a major undertaking for rural circuits. A new section also authorizes the court to require parents to bring the children to a neutral location for exchanges in connection with visitation.
Another change that evolved from the notion that child support and visitation problems should be equally enforced is the addition of § 454.1031, which states that all the penalties attaching to certain failures to pay child support (such as suspension of professional, hunting and fishing licenses) shall apply to denials or interference within two consecutive periods of visitation. There are no statutory guidelines as to how to apply these remedies in visitation violation situations.
One stated goal of the proponents of family law reforms contained in Senate Bill 910 was to reduce acrimony and cost involved in the dissolution process by avoiding the involvement of attorneys.15 Given the ambiguities created by the array of statutory changes discussed herein, whether that goal was accomplished is at best debatable. As stated by Senator Harold Caskey, an attorney and sponsor of Senate Bill 910, "The final bill was a compromise. . . . Whether it works out remains to be seen."16
Endnotes
1 Testimony of Professor May Kay Kisthardt, Hearings, Joint Interim Committee on Family Law, Jefferson City, Missouri, Oct. 13, 1997, p. 199.
2 Testimony of Dave Ketcherside, Hearings, Joint Interim Committee on Family Law, Jefferson City, Missouri, Oct. 14, 1997, p. 144.
3 Colabianchi v. Colabianchi, 646 S.W.2d 61 (Mo. banc 1983), made it impossible for a petitioner to request a legal separation. Section 542.305 required the petitioner to plead that the marriage was irretrievably broken in order to obtain a legal separation. However, Colabianchi held that if a person admitted the marriage was broken a legal separation could not be granted. Thus, only as a respondent could a person deny the petitioner's allegation that the marriage was broken and then request a legal separation.
4 H.R. 2014; Pub. L. No. 105-34 (1997).
5 I.R.C. § 25 (1997).
6 I.R.C. § 25A(g)(3) (1997).
7 Representative Timothy Green, Questioning at Hearings, Joint Interim Committee on Family Law, Jefferson City, Missouri, Oct. 14, 1997, p. 92.
8 Testimony of Dr. Thomas Devol, Hearings, Joint Interim Committee on Family Law, Jefferson City, Missouri, Oct. 14, 1997, p. 25.
9 Testimony of Marilyn Gibson, Hearings Joint Interim Committee on Family law, Jefferson City, Missouri, Oct. 14, 1997 pp. 63, 71 and 72.
10 Testimony of Dennis Tichelkamp, Hearings, Joint Interim Committee on Family Law, Jefferson City, Missouri, Oct. 14, 1997, p. 79.
11 "Absent exigent circumstances as determined by a court with jurisdiction, you, as a party to this action, are ordered to notify, in writing by certified mail, return receipt requested, and at least sixty days prior to the proposed relocation, each party to this action of any proposed relocation of the principal residence of the child, including the following information: (1) The intended new residence, including the specific address and mailing address, if known, and if not known, the city; (2) The home telephone number of the new residence, if known; (3) The date of the intended move or proposed relocation; (4) A brief statement of the specific reasons for the proposed relocation of the child; and (5) A proposal for a revised schedule of custody or visitation with the child. Your obligation to provide this information to each party continues as long as you or any other party by virtue of this order is entitled to custody of a child covered by this order. Your failure to obey the order of this court regarding the proposed relocation may result in further litigation to enforce such order, including contempt of court. In addition, your failure to notify a party of a relocation of the child may be considered a proceeding to modify custody or visitation with the child. Reasonable costs and attorney fees may be assessed against you if you fail to give the required notice."
12 Komosa v. Komosa, 939 S.W.2d 479 (Mo. App. E.D. 1997), held that a grandparent's visitation rights in that case did not have equal standing with a parent's rights in seeking to limit a parent's right to move the children out of state.
13 Model Relocation Act, American Academy of Matrimonial Lawyers, 1997.
14 See § 452.340.7 and § 452.355.2.
15 Kim Bell, St. Louis Post Dispatch, Monday, May 4, 1998 "Two bills would alter custody process." Senator Bill McKenna was quoted in this article as saying "his plan [for presumptive joint physical and legal custody] eventually could cut antagonism between the couple and that divorce lawyers' real concern is losing money."
16 Robert E. McAuliffe, Jr., Major Changes to Family Law Passed by Legislature, Missouri Lawyers Weekly, June 8, 1998.
Catherine J. Barrie is The Missouri Bar's Senior Legislative Counsel. She received her J.D. from the St. Louis University School of Law, and previously served as counsel to the Missouri Labor and Industrial Relations Commission.
1998, Karen Plax and Catherine J. Barrie