The single largest type of law practiced by the Law Offices of Jaired B. Hall, LLC is “Family Law.” The most recurring issue for family law cases is child custody. Division of property in divorces is also a significant part of divorces, a sub-type of family law cases. This page is under construction. I will be adding additional information about each of these areas of the law under the headings below. As blog posts are written about these areas of the law, links will be provided below to relevant posts.
A divorce in Missouri law is known as a Dissolution of Marriage. There are three main things the Court does to dissolve a marriage. The easiest thing is exactly that: the marriage is dissolved. All the legal aspects that come along with marriage (inheritance rights, the right to each others property, completely equal say in everything regarding marital property and children of the marriage) are over.
The second thing is that the Court has an obligation to give each party his or her separate property and then equitably divide the marital property between the two. The more property a couple owns when they start the divorce process, the more complex the case gets unless the parties are in agreement about how to split everything.
The third and most important part of the divorce process is the issue of what happens with the children. Who will have custody or visitation at what times and will either party pay child support?
When both parties live in the state of Missouri, no divorce case is truly over until the court has dissolved the marriage, dealt with ALL the property and debt of the parties, and established a parenting plan covering all important issues of custody, visitation, and support.
As I said above, what happens with the children is the most important part of a divorce proceeding. Children are more important than who gets what car, how the retirement accounts are split up, and who has to pay for the credit cards.
Child custody comes into issue in the following types of cases: Divorce cases when the parties had children together, Modification of Custody cases when there’s a parenting plan in place that needs to be changed, paternity cases when unmarried couples had children together, and guardianship cases (technically an area of “probate law” but I discuss it below).
In divorce, modification, and paternity actions, the Court’s overarching concern is the best interest of the children. The best interest remains extremely important in Guardianship cases, but in those cases, the judge first has to decide if the child’s parents are unwilling, unable, or unfit to properly parent the child. Missouri statutes set out some factors that relate to a child’s “best interest” but in reality, the “best interest” comes down to the personal beliefs and opinions of the judge over the case. Missouri statutes and published case law heavily influence most judges, but the primary influence on the judge will be his or her own worldview and personal values.
Custody is divided into legal and physical custody. Legal custody deals with decision making authority for the children: educational upbringing, medical treatment, religious instruction, discipline, and things like that. Physical custody and visitation are almost interchangeable. For instance, if a person gets “visitation” every other weekend, during those “visits” that parent has “custody.” The parenting plan might say the parent with weekends has “joint physical custody” or it might give the other parent “sole physical custody” with “visitation” to the other parent. As a general rule of thumb, a period of 48 hours or less with the children will probably be referred to as visitation while longer periods will be called custody.
Child support: parents have a legal (and moral) duty to provide financially for their children. When custody is split 50/50, parents often agree that neither party will pay child support. However, technically, the parent making more money than the other should have to pay support to the other. Any time one parent has more than 50% custody, the other parent should have to pay some level of child support.
After a parenting plan has been established either in the divorce context or paternity context, things can change. Maybe the parties move further apart. Maybe the child has grown old enough to start attending school. Maybe one of the parents has become an alcoholic or has been thrown into jail. When substantial changes in the lives of the parties and their children occur, the old parenting plan and its rules for custody, visitation, and support may no longer really be workable or in the children’s best interest.
When this happens, the parties are able to go to the Court and request a modification. In these cases, the two questions on the table are: (1) have circumstances changed in an important enough of a way to require a change of custody and (2) what changes in custody, visitation, and support are in the best interests of the children?
If you have a parenting plan in place and one parent violates the rules and holds on to the child after his or her time of custody or visitation is over, there are several routes available. The parent trying to enforce the parenting plan can file a Motion to Modify (a slow process), or a Motion for Contempt (a faster process with more teeth), or a Family Access Motion. Family Access Motion’s are quicker than a contempt motion AND the court is required to order attorneys fees against the party holding on to the children. Additionally, the clerk of the court where you file the Family Access Motion can walk you through the application process.
It is much easier for an unrepresented person to see a Family Access Motion through from start to finish than for a person to do a Motion to Modify or Motion for Contempt without an attorney.
Many children are born to parents who are not married. As long as the couple stays together, they both can parent the child as would a married couple without running into any problems. Sooner or later, many of these couples break up.
If the father is on the birth certificate, it means that the parents signed an affidavit of paternity back when the child was born. Missouri law states that this is like a judicial finding of paternity, and it therefore gives the father all the rights and obligations of a father. Unfortunately, some judges, prosecuting attorneys, police officers, schools, and doctors do not acknowledge this law, and they might cause trouble to a father who tries to keep custody away from the mother. Mothers tend to be able to be more successful in restricting a father’s custody or visitation in these scenarios. If the parties both want the child and cannot agree on how to handle custody, visitation, and support, a tug of war can ensue which is not to the child’s benefit. A paternity action should be started.
If the father is not on the birth certificate, he has no custody rights at all to the child, and if he wants custody or visitation, a paternity action should be started.
The issues of a paternity action are, first, is the father in fact the biological father of the child and, assuming he is, secondly, what is in the best interest of the child for custody, visitation, and support?
Guardianships are handled under Missouri’s probate code, which is the same code that deals with wills and people’s estates. The Guardianships that I’m talking about here involve children whose parents are not doing a very good job taking care of them. The most typical scenario is when grandparents see their grandchildren being abused or neglected and they want to step in and provide the care needed by their grandchildren. Other people who might want to be guardian for young children are very close family friends and other close family members such as aunts and uncles.
The persona petitioning to become a child’s guardian has to prove first that the biological parents of the children are either unfit, unwilling, or unable to provide the care that the children need and, secondly, that it is in the children’s best interest to be cared for by the petitioner.
Unlike when a father and mother fight for custody, when the only question is which parent will be best for the children, the petitioner in a guardianship case is not on the same footing as the parent. The best interest question is the second question, and is only asked after the guardian can prove the parent is unfit, unwilling, or unable to properly parent the child.