Family Law

John W. Dennis, Jr., Esquire

Trial court erred in ordering that when family counselor believes parent/child relationship has been normalized a joint custody judgment shall resume in that this is an abduction of judicial role to a person other than the judge. Aubuchon v. Hale, No. 97239 (Mo. App. E.D., June 26, 2012), Hoff, J.

The parties hereto were divorced in 2009. They were awarded true joint physical custody of their two adopted daughters. Mother filed a motion to modify the judgment from joint to sole custody in the aftermath of Father being charged with two counts of sodomy against one of the girls. His trial ended in an acquittal. He was later charged with the same offense in Illinois, but those charges were dismissed. Since November 2009 the Father had not communicated with the Mother and had no contact with the children due to a temporary restraining order and restrictions of his bond.

The trial court herein denied the Mother’s motion and ordered the parties to continue with a therapeutic supervised visitation program until such time as their counselor determined that the relationships had been normalized. If so, the joint legal and joint physical custody judgment was to resume unchanged. Mother appealed.

Held: Reversed.
The opinion is in most ways fact – specific on the reasons why joint custody is no longer viable. This summary is offered on the particular part of the court’s judgment authorizing a counselor to determine when a judgment would become effective. “Permitting others to alter custody arrangements is an impermissible delegation of judicial authority.M.F.M., 889 S.W.2d 944, 956 (Mo. App. W.D. 1995). Here, the trial court is allowing a counselor to determine if there has been a normalization of the relationships of the parents and children to trigger or deny continued custody arrangements. Although we recognize the difficulty in fashioning a remedy in this area, the trial court cannot abdicate its responsibility to a counselor.”