The Law Office of Kurt H King

June 27, 2017

Are Administrative Child Support Actions Too Prone to Error?

In my opinion, Administrative actions in Missouri that order a person to pay child support are ripe for error and constitutionally weak.

Too often, the father named on the birth certificate is not the child’s biological father.  He is the mother’s new guy or husband, and maybe she does not even know who is the father but names the one she thinks best under the circumstances.  The mother can point the finger at a guy she knows is not the child’s biological father and the Children’s Division run with it as though the gospel truth.

When the Children’s Division presumes the guy the mother names is the child’s father, a notice goes out to the presumed father advising him of his need to request a hearing if he disagrees with the child support amount proposed by the Division.

A poor, uneducated, or legally inept “father’ may not request a paternity test or other action to refute the Division’s child support proposal.

Or, the presumed father may have been supporting a child not his for years and believe he is the father of that child, thus seeing no need for paternity testing.  Or he may know that he is not the biological father but have cared and loved the child for years, leading him to consider the child as his own and not request paternity testing.

To avoid these mistakes, paternity testing should be required in all Children’s Division cases.  Cost of testing weighs far less than harm to presumed fathers who are not the actual biological father of the child.  Too, such mistakes cost the real, biological father an opportunity to know and be a part of the child’s life.  Perhaps the ultimate loser is a the child who grows up never knowing his real father.

Kurt H. King

20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Personal Injury, Litigation, Other Matters

 

When Dad is Not the Dad but has been the Father for Years

It happens that a guy will knowingly marry a lady pregnant by another guy or with a young child by another man.  Then years later when the child is in his teens–even late teens–the couple divorces.  The non-biological “father” to the child may love the child and want to be the dad.  The “real” biological father may not know of the child or may not want to have a connection–and child support obligation–so late in the childhood of the child.

While it may be tempting to just tell the Court the non-bio husband is the child’s father–he may even be named as such on the birth certificate–is that fair to the biological father to by-pass his rights and give him no chance to step in and connect to his child?–No.  And, could the attorneys involved be sued later by the bio dad for fraud?–Probably so!

Maybe a safe way to handle this situation is to join the real bio dad to the case, with a count added to establish his paternity (and may be for reimbursement of back support provided–see final paragraph of this post).  Then, if the bio dad wants to connect to his child, the Count is in position to so order.

But what if the bio dad wants not to be declared the child’s father and/or not to pay child support?  (Maybe he married and has other children who he is working hard to support.)

What if the child is 15, 16, or 17 years old at the time of disposition of the divorce case?

Do the lawyers run the divorce through as though the non-bio father is the dad of a child of whom he is not the real biological dad?  What if they don’t tell the Court about who the real bio father is? 

Does that position violate lawyer ethics?–malpractice?–fraud?

But what if the lawyers tell the judge, and the judge says okay to that approach?  Are the lawyers off the hook and safe from bar complaints and lawsuits against them down the road?

What if representation by counsel that child is the non-bio guy’s child later costs the child an inheritance–or Social Security benefits–or biological grandparents learn they have a grandchild they never knew their son fathered?  Or maybe the child quickly becomes wealthy, dies fairly early, and leaves a large estate of which the biological father or his relatives want a decent share?

I think a judge (and lawyers) should–as one I respect has–flat out refuse an order holding the non-bio guy to be the father of a child he did not biologically father.  If he is not the dad, then he is just not the dad.  Sometimes saying “no, period” saves a lot of trouble down the road.

One side issue may also surface: the non-bio husband may sue the biological father for five years back support the non-bio guy provided the child.  Missouri statute 210.828, subsection 2, provides:

“A parent’s retroactive liability to another party for reimbursement of necessary support provided to the child for whom a parent and child is established under section 210.817 to 210.852 is limited to a period of five years next preceding the commencement of the action.”

Kurt H. King

20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Personal Injury, Litigation, Other Matters

November 21, 2016

EMBRYO IN VITRO–Missouri’s McQeen v. Gadberry Case

November 15, 2016, the Eastern District issued its opinion in a Missouri first-impression pre-embryo in vitro divorce case–McQueen v. Garberry, ED 103138 (Mo. Ct. App.).

The Court’s decision runs long but warrants a full read; its core holding/ruling is:

Some key facts discussed by the Court include:
1.  Neither wife McQueen (attorney) or husband-Gadberry (soldier, MBA) are impotent and each can procreate children naturally–their reason for using in vitro was husband’s impending tour of combat duty–two of the four embryos were implanted and born alive and presumably well to the couple;
2.  Custody sharing of the couple’s two children was said to be difficult;
3.  Husband did not want more children with McQueen, who filed for the divorce;
4.  Wife may have pulled some shenanigans by handwriting in the margin of the embryo storage documentation that “use” of the embryos would go to her in case of divorce–husband testified that language was not there when he signed it; she used blue and black ink in the same area; signed but notarized later; etc., causing the trial court to find the documents to be insufficient to hold husband in agreement on such an important issue.
Ultimately, the court of appeals affirmed the trial court’s order casting the embryos as marital property of a “special character” and requiring they be stored unless and until both McQueen and Gadberry execute a sufficient written agreement otherwise.
Kurt H. King
Law Office of Kurt H. King, 20 E. Franklin Street, Liberty, Clay County, Missouri 64068
816.781.6000
Missouri Family Law, Personal Injury, Workers’ Compensation, General Matters

December 22, 2015

Rare Missouri Case Allowing Re-litigation of Civil Contempt Claims

Parties file Civil Contempt cases due to an opposing parties’ refusal to comply with the Court’s judgment.  In defense to the contempt action, the violating party may claim that collateral estoppel or res judicata bars all claims that were or could have been asserted in previous litigation between the parties.  Many cases uphold that defenses, but the Western District of the Missouri Court of Appeals held otherwise in a case where the violating party lacked the financial ability to comply with an order that he pay maintenance at the time his former spouse first tried to hold him in contempt of court on that basis.

By the time of second contempt action, however, the man’s finances had improved and the trial court allowed the former wife to proceed with her contempt claim for failure to pay temporary mainteance.  The Court of Appeals upheld the trial court’s rejection of collateral estoppel/res judicata as a defense.

The case is Walton v. Walton, 789 S.W.2d 64, 67-68 (Mo. Ct. App. W.D. 1990).

Law Office of Kurt H. King

20 E. Franklin, Liberty, Missouri 64068; 816.781.6000

Civil Litigation including Personal Injury and Property Claims, Workers’ Compensation, Family Law & General Matters

June 14, 2013

Child Support In Missouri When Neither Parent Has Custody

Filed under: Custody,Divorce,Family Law,Paternity,Support,Uncategorized — kurthking @ 2:01 pm
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When the child is a minor and neither parent has custody, a case for child support can be initiated for the child by a state agency, a guardian, or third person providing support as next friend for the minor child.

But what about an adult son or daughter over the age of 18 in college living with neither parent?  While child support generally continues until the the child reaches age 21 for those who go on to college or other certain other post-high school education, who can bring a case in court for support of the adult child not yet 21 who left both parents behind (or vice versa) for whatever reason and is taking the required class load and working part-time?

First, can a parent file for the other parent to pay support when the child lives on his/her own or with third persons?

Law:  Where an adult child not yet 21 years of age is not living with either parent–i.e., on their own or living with friends–and attending college or such, and neither parent is making a financial contribution to the child’s expenses, then neither parent is sufficiently affected by the non-payment of child support by the other so as to be able to sue for child support from the other parent.  See Higginbotham v. Higginbotham, 362 S.W.3d 34, 36-37 (Mo. Ct. App. S.D. 2012) (daughter could not sue for child support ordered paid by mother to the grandmother).

And see Denton v. Sims, 884 S.W.2d 86, 89 hn. 5 (Mo. Ct. App. E.D. 1994), where the court of appeals reversed the trial court by ruling that the mother was not entitled to retroactive child support for one of three children  “for a period of time when she was not supporting daughter and daughter was not living with her.”  The daughter lived with a third-party and mother then made “no financial contribution to her upbringing.”

Second, if the parents cannot sue, can such an adult child entitled to support sue one or both parents in those circumstances?

Despite a dearth of Missouri cases on this point, there seems to be no reason why the adult child could not sue in his or her own name for support just as an adult could bring other cases in court.  But, this does not appear to be happening as a practical matter.  Presumably, adult children having flown or been kicked out of  the family nest are not of the mindset to turn back and sue a parent for support.  Maybe it is pride, but certainly it is psychologically difficult to sue to your parents.  And so, while it can happen, it doesn’t.

Lastly, if the lot of such an adult child not yet 21 trying to make it in the world and get a college or similar education, without support from the parents, seems unfair, REMEMBER: life is not fair, and Missouri law does not require parents still married to support their children after high school either.  For some reason, divorced parents can be ordered to pay support during college generally until the child turns 21, but married parents need not.  One of life’s little injustices?

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Personal Injury, Workers’ Compensation, General Matters

March 19, 2013

50/50 Custody and Child Support in Missouri

Filed under: Custody,Divorce,Family Law,Paternity,Support — kurthking @ 8:44 pm
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Many parents facing divorce aim to avoid paying child support by pressing for equal custody of the children of the marriage.   The common belief is that if they split time with the children basically down the middle, no child support payments to the other spouse will be required.

In an agreed-upon/uncontested case, the court may well approve such a custody arrangement.  But is the 50/50 custody split in the best interests of the children?  Many would say not–including Judge Chamberlain who spoke at the March 15, 2013, Family Law CLE in Clay County.  By and large, judges do not favor 50/50 custody because one home base for the child beats trying to make a dual home rotation function.

So, if your divorce or other custody battle is for trial, there is little chance of an award of 50/50 custody from the judge.

And if you insist on taking that route, the court will require extensive proof as to who pays what bills and provides what support so as to determine and order what bills and expenses paid by each parent.  The cost of coming up with sufficient proof is high and as the judge said, “95% of your clients can’t afford you anyway.”

Why spend the money on this expensive long-shot?

Lastly, in such a case the judge will also examine the parties’ incomes.  If one parent makes more money that the other, the court can still order the parent with the greater income to pay child support to the other even in a 50/50 custody situation.

One bit more–the judge may insist that all issues be tried even where the parties claim to have an agreement of 50/50 custody.  All the facets of the case intertwine to affect the court’s judgment and thus a small trial on just a few issues may snowball into a full blown trial covering child custody issues as well–pouring all your hard work spent to hammer out a 50/50 custody agreement down  the drain.  Not good.

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Dissolutions, Modifications, Child Support/Custody/Visitation, Paternity

General Litigation and Matters

http://www.kurthking.com

Missouri Grandparent Visitation Under 452.402

Filed under: Custody,Divorce,Family Law,Paternity,Support — kurthking @ 8:17 pm
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At a Clay County family law seminar last Friday (03.15.2013), Commissioner Roberts spoke on Grandparent Visitation in Missouri under much revised statute 452.404.   Our Commissioner apparently put a good deal of work into researching the background and status of this relatively involved law.  The gist of what I took from her presentation includes:

1.  Important to select the correct tool to proceed for grandparent visitation rights.  Use the wrong one at your extreme peril and likely defeat.  Choices include: 1) Motion to Intervene into a Dissolution of Marriage case; 2) Motion to Modify where this is already a judgment of dissolution; 3) separate action for grandparent visitation where, for example, one parent is deceased and the surviving parent denies visitation.

2.  If the parents are legally married, and living together with the child (not having filed for divorce or legal separation), the grandparents CANNOT file for visitation under 452.404 even if unreasonably denied all visitation with the grandchildren.

3.  When a denial is “unreasonable,” and what visitation is “reasonable,” is undefined and far from clear.

4.  The Commissioner  reads 452.404 as requiring in all cases that unreasonable denial of visitation have run for 90 days or more.  Otherwise, the court lacks jurisdiction and the case may well be dismissed.  The statute is unclear but the Commissioner is probably right.  Simply put, if the denial is not unreasonable and has not run for at least 90 days, do not file for grandparent visitation.

5.  Step-grandparents have no right to use 452.404 but may try to proceed for visitation as a “third party” under 452.375.

6.  Older cases allowed grandparents of children born out of wedlock to obtain visitation rights.  Commissioner Roberts opines that the new version of 452.404 limits such grandparent visitation actions involving out of wedlock grandchildren to only cases where a parent dies and the grandparents of the deceased parent are unreasonably denied visitation with the grandchildren; OR, the grandchild lived with the grandparent the necessary time frames AND the grandparent is unreasonably denied visitation for 90 days or more.

7.   As a broad general rule, there is no room for grandparent visitation motions to intervene in a case to adopt the grandchildren.  Rare exception was once made where the grandparents had already been granted visitation rights (in a paternity case) which the court found were NOT terminated by the subsequent adoption case.  There is also the alternative route of seeking generic third party rights through a 452.375 action.

8.  In probate actions by a grandparent for guardianship of the grandchild, a settlement whereby the grandparents dismiss in exchange for an order of visitation rights runs considerable risk.  In Clay County, the court finds that it has NO equitable rights to order such grandparent visitation rights and 452.404 does not apply in probate settings.  Clay County would say that it cannot grant the petitioning grandparents visitation as all they can seek there is guardianship and to also be appointed conservator.    Thus, such a visitation order would be void ab initio in Clay County as was also the case in the case of In the Matter of DCO and AOD, 239 S.W.3d 714 (Mo. Ct. App. S.D. 2007).  Jackson County begs to differ, however, contending that it has the equitable power to order grandparent visitation in such an instance.

9.  Note that grandparent visitation is a creature of statute and cannot survive absent specific statutory authority.

10.  Again, 452.404 does NOT apply to probate proceedings.

11.  A mere 2 hours every 90 days has been found to be sufficient grandparent visitation.  Is a grandparent visitation case worth the time and trouble?

12.  Commissioner Roberts provided a good working outline on this subject and presumably would share it with interested counsel.

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Dissolutions, Modifications, Child Support/Custody/Visitation, Paternity

General Litigation and Matters

http://www.kurthking.com

October 18, 2012

When Sole Custody is Really Joint Physical Child Custody in Missouri

Filed under: Custody,Family Law,Paternity — kurthking @ 4:11 pm
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On September 18, 2012, the Western District of the Missouri Court of Appeals changed the trial court’s award of sole child custody to one of joint physical child custody.  The case is Clark v. Ingram, WD Slip Opinion 74554, appealed out of Clay County, Missouri.

The key facts behind the court of appeal’s decision to change the judgment to one of joint physical custody is that while the trial court labeled the custody awarded to the child’s mother as “sole custody,” the lower court also ordered “significant” parenting time for the father.  Specifically, the trial court initially granted the father one or two week days with the child staying  with him overnight, split the holidays between father and mother, and awarded father five consecutive days with the child during the summer.  Once the child started kindergarten, the court’s parenting plan changed somewhat to grant father alternate weekends from Friday at 4 p.m. until start of school on Monday, and from 4 p.m. on Wednesday until school began on Thursday each week.

Given this significant amount of visitation with the child, the court of appeals ruled that father has joint physical custody, not sole custody.

The “joint” custody label is important as it gives each parent impact and access to school and health information, as well as joint decision-making as to the child in those areas and others.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri; 816.781.6000

http://www.kurthking.com

Family Law–Dissolution of Marriage, Modifications, Child Custody Disputes, Paternity, Child Support

Personal Injury, Workers’ Compensation, Litigation, Chapter 7 Bankruptcy

February 23, 2012

Court Decides Not to Recognize an Equitable Claim for Child Custody by Nonparent

Facts:  man believes he is the father of the child born to the lady who lives with him;  man supports the child financially; he later files paternity case and discovers the child is not his–thus no relationship to the child by blood, adoption, or marriage. 

Regardless, guy petitions the court for custody rights to the child.   The court of appeals ultimately denies the father’s claim for equitable custody rights to the child as the man is a nonparent.

The court’s decision avoids opening Pandora’s box to address the almost infinite custody, visitation, support, and inheritance/probate issues that would arise once we step outside of the traditional family box formed by ties of blood or by legal adoption. 

See In Re The Matter of T.Q.L., M.M.A. v. L.L., and the Unknown Father, decided by the Southern District of the Missouri Court of Appeals in Slip Opinion SD31142, filed 02-14-2012.  It remains to be seen whether the decision will be appealed to the Missouri Supreme Court or if that court will take the case for its review.

However, it is not difficult to see how the decision impacts non-tradional family structure.  For instance, custody claims by a gay person against his or her partner who either gave birth to the child or adopted the child appear to be foreclosed as such a person seeking custody rights is a “nonparent.”  Consider too surrogate mother situations and the battles that could arise in that arena.

And, should a “nonparent” same sex partner obligated to pay child support by a sperm donor organization’s agreement or state statute for a child born to her mate have custody or visitation rights to the child?  Is it fair to have to pay child support but not have custody or visitation?

(Missouri statutes 210.824 and 193.085(9) address only instances where the married woman, with her husband’s official consent, is Artificially Inseminated with another man’s sperm under the supervision of a licensed physician.  In such cases, the husband and wife are both considered by law as the natural paents of the child.  And, the sperm donor is “treated in law as if he were not the natural father of a child thereby conceived.”)

The pressure on the law from same sex relationships and nonparent claims of custody and visitation piles on from many directions and varied formations.  This court’s limitation of custody to parents seems a sound course to maintain but there are sure to be hard cases where the nonparent is the only adequate person to have custody of the child.  What happens when denying the nonparent leaves the child with a parent who is unfit or nearly so?  Does the child fall to foster care and leave a “second” mom or dad in the wake?

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

www.kurthking.com

Child Custody & Support,  Paternity,  Divorce & Modification

Bankruptcy, Personal Injury, Workers’ Compensation

December 19, 2011

No Credit For Child’s Social Security Disability $ If Due To Disability of Custodial Parent

Filed under: Custody,Divorce,Family Law,Support — kurthking @ 10:24 pm
Tags: , , ,

Possible scenario:  Mom has  residential physical custody of a child who receives Social Security Disability each month due to the disability of the mother who cannot work.  Father wants a credit for the amount of the child’s disability checks in order to reduce his child support obligation under Missouri law. 

Answer: No reduction for father becasue the disability money comes to the child because of the disability of the parent with custody–mom. 

But the answer may be yes if the father was the disabled person and the child received disability payments due to the non-custodial father’s disability.

The Missouri case on point is Gerlach v. Adair, 211 S.W.3d 663, 667 hn.8 (Mo. Ct. App. W. D. 2007).

However, there is another angle in through the back door for the non-custodial father to try.   That is that the Missouri Child Support Guidelines are just guidelines from which the court may deviate for good reason.  And one factor which could cause a deviation is that the court is supposed to consider the child’s income in deciding how much child support to order. 

One practical approach to this scenario was experienced in a Platte County, Missouri, court where the judge added the amount of money the child received each month due to the custodial mother’s disability, back into the total income of the mother which resulted in a small but fair discount in the amount of child support that the court ordered the non-custodial, non-disabled father to pay.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

www.kurthking.com

Bankruptcy, Child Custody & Support, Divorce & Modification, Family Law, Personal Injury, Missouri Workers’ Compensation

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