The Law Office of Kurt H King

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

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

January 5, 2011

Changing Child Custody or Support by Agreement in Missouri–Get a Court Order!

Filed under: Custody,Family Law,Support — kurthking @ 5:45 pm
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What if father pays child support and mother brings the children to him and says, “you take care of them–and I don’t want any child support?” What happens if the father stops sending in his child support to the Family Support Payment Center? And, what if mother changes mind 7 months later and takes children back?

The father in this example needs to file to get a court order immediately based on a stipulation/agreement with mother, or otherwise if she won’t sign a stipulation, changing custody and terminating his child support obligation.

If he fails to do so, his child support obligation does NOT stop, he builds up a child support non-payment arrearage, and he lacks the court order to prove that he now has the primary/home/residential custody rights to the children. That let’s the mother in this example walk back in and take the chilren–even claim the back due child support that accrued while the father had the children (she may or may not win on the back support but she puts father out to hire an lawyer and try to get court order that he does not owe the back support).

This happens time and again, often to folks who cannot afford to make a mistake and cannot repay back child support.

Get A Court Order or Beware.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

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

February 9, 2010

Shared Child Custody in Missouri–Will the Court Order it

A frequent question on family law in Missouri is will the Court order a shared custody plan where the parents alternate weeks with the children of the marriage/paternity relationship.

Speaking mainly as to experience with the Clay County Circuit Court setting in Liberty, Missouri–which other Missouri courts may or may not mirror on this issue–my take is that the court is likely to order such shared custody ONLY IF both parents agree that it is in the best interests of the children.  Of course, if a child is in school, then both parents are going to need to be close enough to the school to get the child to school without a long drive. 

If the court sees problems with shared custody for the child, it may decide not to order shared custody even if both parents think it is the best way to go.  (Sometimes a parent may agree to shared custody for the wrong reasons, i.e., to reduce child support, to win on some other issue, lacked the money to resist the other parent, etc.)

What if the parents do NOT agree that shared custody is best for the children?  Then my experience is there is a slim to none chance that the court will order shared custody for the children.  An explanation is that the court prefers a primary residential home base for the children, especially where the parents are not in agreement on working a shared custody plan.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

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

February 8, 2010

Proof of Sexual Abuse by Expert In Missouri

Filed under: Custody,Family Law,Litigation — kurthking @ 5:04 pm
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Say you are in a child custody or criminal court case in Missouri, perhaps Clay County, involving allegations of sexual abuse of a child.   For example, what if the mother accuses the father or step-father of abusing a young girl, and moves the court for an order that the father have no visitation or contact with the child–or only supervised visitaiton?

How to prove innocence?–or guilt?   What if the alleged perpetrator undergoes an psychological evaluation by an expert to determine if he or she did abuse the child?  Will an examination really prove anything about whether he did so?

I recently spoke with a national expert on this issue and learned that the evaluation generally canNOT support a finding that a particular person sexually abused the child.  (I say “generally” because of exceptions where the accused admits guilt, a witness saw it happen, or there is other concrete evidence that a person did abuse, and so on.)

The reason given: there is no “official” profile of a sex abuser.   So it is bunk when the expert says that a person “fits the profile” of a sex abuser” and therefore did abuse. 

Nor does such testing enable the expert to come to court and testify that the mental evaluation established that the accused “shows characteristics of a child abuser.”  (One question for any such expert would be how does he/she know what the public norm is for any test to reveal such “characteristics”–i.e., what percentage of the public would look at younger persons of a sex for longer than older persons and for what reasons.)

More importantly, even if testing could show such characteristics, it is no proof that the father/defendant abused the particular child in question.  

If a person is on the defense side of this issue, and the other side finds an expert to say the person is child sex abuser, or fits the profile of one, or has such characteristics, then be proactive.  Get a credible expert to come to report or testify on your behalf to explain why a mental examination generally does not establish that a person did sexually abuse a child.  File a Daubert motion or some other motion to disqualify the expert that claims that his mental evaluation proves a person is the child’s sexual abuser.

But realize that even if you discredit the expert, some stain may still remain from the child abuse allegations.  Rarely will the accused come completely clear of the allegations barring the child or accusing parent admitting it was all false.  Winning primary or residential child custody will be difficult for the person accused of sexual abuse of a child.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64024
http://www.kurthking.com

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

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