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Modification

Modification as to Custody

   To modify a permanent award of custody, the court must find that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interest of the child.  Such a finding must be based on facts which have arisen since the prior decree or upon facts which were unknown to the court at the time of the decree.  When custody of children is once adjudicated, it is presumed that the custodian remains suitable.

Where the parties do not agree to a change of custody, and the child has not been consentingly integrated into the family of the non-custodial parent, a change of custody can only be accomplished by proving that the child is “endangered” in the current custodial environment. In practice, this means that there must be strong evidence in favor of the change of custody.  Examples of such evidence are:

  • a child’s strong desire to live with the non-custodial parent combined with at least some additional evidence;
  • physical, sexual or emotional abuse by the custodial parent;
  • neglect or very poor discipline in the custodial home that adversely affects a child’s grades or behavior, etc.

   The best interest and welfare of the child continues to be the dominant factor in a court’s determination to modify a custody arrangement.  There are many factors which the court can evaluate the best interest of the child, several situations follow, however, these are not limited:

  • The child’s preference as to his custodial arrangement is of importance but is certainly not a controlling factor if the court determines that a change is not in the child’s best interest.  Generally, the older the child, the more weight the
    court gives that child’s opinion.  Typically,in Missouri, there needs to be additional evidence besides the child’s preference. There must be some type of showing of endangerment, at least on an emotional level, in order to modify custody.

  • The “moral fitness” of a parent is often an issue in custody litigation.  Frequently, the allegations of custodial unfitness center on sexual, or drug-related conduct.  
  • Deprivation of the noncustodial parent’s visitation rights by the custodian may constitute a changed condition to warrant reconsideration
    along with all other relevant factors as to custody.

  • Parental Alienation.  A charge frequently made in modificationproceedings by the parent not
    having the child’s custody is that the other parent, since gaining custody, hasalienated the child’s affection for
    the noncustodial parent in one
    manner or another.

  • Out of state move.  Often a deprivation of visitation rights will come about because of an out-of-state move.  Acustodial parent must obtain consent from the noncustodial parent or court
    permission to move out of state.  A move out of state is deemed a “change of circumstances” ground for a modification of custody.

  • Change in lifestyle. Changes in custody or visitation orders may be obtained if substantial changes in a parent’s lifestyle threatens or harms
    the child. If, for example, a custodial parent begins working at night and leaving a nine-year-old child alone, the other parent may request a
    change in custody. Similarly, if a noncustodial
    parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is
    sober, or in the presence of another adult). What
    constitutes a lifestyle sufficiently detrimental to
    warrant a change in custody or visitation rights
    varies tremendously depending on the state and the particular judge deciding the case.

Child Support

   In Missouri, child support is based on the combined income of the parents, the needs of the child, and the costs of child care and health insurance. In determining
whether to order child support, a court will consider:

  • The financial needs and resources of the child and the parents;
  • The standard of living the child would have enjoyed if the marriage had not been dissolved;
  • The physical and emotional condition of the child; and the child’s educational needs;
  • The child’s physical and legal custody
    arrangements, including the amount of time the child spends with each parent and the reasonable expenses associated with the custody or visitationarrangements;

  • The reasonable work-related child care expenses of each parent.

   A Missouri child support order can be modified only if there has been a “substantial and continuing change in
circumstances,” such as a big increase or decrease in either parent’s income.

To calculate child support click this link or visit the Resource page of this website.  If you would like to contact an attorney regarding a Modification of Custody, Visitation or child support, call James Piedimonte at 816-254-6477.

 

Note:

The standared to determine custody in the original action is different than a modification of custody.  The measure in an original action, such as a dissolution or paternity case, is “What is in the best interests of the child.”  The measure in a modification is a much higher standard, “a substanial and continuing change of circumstances since the original decree.”