Lawyers who practice in Missouri's busiest Family Court will be
laboring under some sweeping rule changes after July 1. The new St.
Louis Local Rule 68 establishes mandatory "parenting plans"
and mediation and affords increased access to ex parte orders.
St. Louis Family Court Judge Thomas Frawley, whose "family law
reform" efforts have drawn statewide notice, is the rule's
author. He will be presenting the rule to bar and answering questions
about it on June 27.
This new rule will give parents the opportunity to try to resolve
custody and visitation issues without going to court for a hearing,
and will give noncustodial parents a quick, free access to the system
to enforce their visitation rights," said Frawley.
The provisions of the court's new Rule 68 will
- require each party to submit a "parenting plan" in any
case where custody or visitation is a "genuine and
substantial issue"
- require early mediation, at no cost to parties, in any case
where custody or visitation is a "genuine and substantial
issue";
- authorize the parties to obtain special ex parte orders to
preserve the status quo, prevent loss of assets and provide for
custody and visitation while the litigation is pending;
- provide mediation services at no cost to the parties to resolve
disputes over the enforcement of existing custody and visitation
orders;
- require parties to respond to their own discovery requests; and
- require parents and children to attend child custody education
classes in every case where there are unemancipated minors.
Calming The Parties
"I am intrigued by the new rule," said Clayton attorney
Leigh Joy Carson. "I think people will calm down at an earlier
stage in the process and this will facilitate settlements.
"I think it will be a great experiment."
Judge Frawley drew upon the experiences of other states which use
similar procedures and also tried to solve the problems addressed by
legislation which failed to pass in the last session of the Missouri
General Assembly.
The new Local Rule 68 becomes effective July 1. Frawley will unveil
the new rule to interested lawyers at a CLE luncheon in the downtown
office of the Bar Association of Metropolitan St. Louis on Friday,
June 27.
Parenting Plan
The new rule requires each party to certify, when they file their
first pleading, "whether ... child custody or visitation is
expected to be a genuine and substantial issue." If custody or
visitation is certified as an issue, the court will send notices to
each party directing them to submit a plan or parental decision
making, parenting time and residential arrangements for any minor
child," within 15 days.
The notice will also warn, the parties that attorney fees and costs
may be assessed against either party if the court finds that custody
or visitation is not a genuine and substantial issue. And it will
schedule an appointment for the party for mediation. New Local Rule
68.1 includes a form for parties to use in preparing their proposed
parenting plan. The six-page form includes a dozen standard orders
dictated by the court for use in every case.
In addition, each party must submit a proposed residential
schedule, as well as vacation and holiday schedules and a plan for the
division of legal responsibilities. Parties can also tell where
exchanges of temporary custody are to occur and describe their special
needs, and the form includes a space for "additional items."
"The idea of a parenting plan was introduced in the
legislature this year by Rep. Pat Dougherty, but his plan had too many
variables. I tried to narrow it down a little bit."
Frawley's bill utilizes elements of plans from the state of
Washington and San Diego County.
"I think it is a coming thing," Frawley said. "I
hope that Rep. Dougherty knows someone is trying this, so we can serve
as a laboratory."
Cost-Free Mediation
Mediation will be required in every case where either party
certifies that custody or visitation is a genuine and substantial
issue. Both the parties and, "where appropriate," the minor
child must attend the mediation.
The mediations will be conducted by a deputy juvenile officer who
will, to the extent practicable, conduct the mediation in accordance
with the ABA Standards of Practice for Lawyer Mediators in Family
Disputes.
At the next scheduled status conference, the deputy juvenile
officer will report to the court whether the mediation has been
completed, and if so whether the issues have been resolved. If
mediation is not complete, the mediator will recommend whether
continued mediation will serve the children's interest. Statements
made during the mediation are not admissible at any evidentiary
hearing.
Ex Parte Requests
New Local Rule 68-11.1 authorizes the court "upon
application" to enter orders which, while the case is pending:
- restrain each party from transferring or disposing of assets,
with certain exceptions;
- restrain each party from disturbing the peace of the other;
- restrain each party from terminating insurance coverage;
- award custody of the children to the party having custody as of
the date of filing the petition, and award visitation to the other
party; and
- restrain each party from removing the children from the state.
Additional ex parte orders may also be obtained under Rule 68.11.2,
in some cases. These orders pertain to:
- the control and use of marital and separate property;
- legal and physical custody of the children, and visitation;
- temporary maintenance and support;
- medical and hospitalization insurance; and
- payment of litigation expenses and attorney fees.
This latter group of ex parte orders is only available if the
person seeking the order files with the request a statement of income
and expenses, statement of property, and Form 14, if applicable, and
tells the basis for the relief requested and the specific amounts
requested.
Ex parte orders entered under Rule 68. 11 are effective
immediately, and remain in effect until final disposition of the case,
but may be modified or vacated, upon motion, after a hearing. The rule
also spells out the procedure for executions or garnishments to
enforce the terms of the ex parte order.
Most Useful Tool
"This is the most useful aspect of the new rule to me,"
said Clayton attorney Carson. 'I think it will cut down on the
incidence of adult abuse. "If you can come in and get an order ex
parte, why wouldn't you do it in every case?" Carson asked.
Frawley said he borrowed this idea from Johnson County, Kan., where
it has been used successfully.
Frawley acknowledged that "there is the potential for lawyers
to lie to you." But he added that "The lawyers will police
themselves, and the ones who abuse this will hurt their chances in the
future."
Enforcement Of Visitation
New Local Rule 68.20 is designed to head off, though mediation a
major source of complaints by noncustodial parents --the custodial
parent's interference with visitation rights.
There is no filing fee for such complaints, and the court's
mediation services are provided at no cost to the complaining party.
Under the rule, the court's Domestic Relations Unit is directed to
initiate proceedings to enforce visitation or custody rights within
five days of receiving a com-plaint from the noncustodial parent. The
Domestic Relations Unit must send a notice to the custodial parent
informing them of the claimed interference with visitation and of the
availability of mediation to ensure compliance.
This notice must also inform the other parent that failure to keep
the mediation appointment, or to otherwise respond to the letter
within five days "may result in the filing of a motion for
contempt against you."
Mediations are to be held within 14 days after notice to the
claimed violator. The Domestic Relations Unit reports the results of
the mediation to the court. Parties who are found to be in contempt
may be sanctioned as authorized by law.
Free, Quick Access
"I see men here all the time complaining about the
interference with their visitation rights, but they do not have the
money it takes to hire a lawyer," Frawley observed.
"And if I enter an order in their favor and order the mother
to pay a $1,000 attorney fee, it is no help, because she does not have
the money, either.
"We have got to provide free, quick access to the
system," Frawley said.
"That was the thrust of [Sen. William] McKenna's bill [SB 51,
which failed to pass the 1997 General Assembly]. "He had the
right idea, but his plan needed, some improvement."
Discovery
New Local Rule 68.9 governs the use of interrogatories in domestic
relations cases, and Rule 68.15 governs requests for production of
documents. Parties must use the court's Pattern Interrogatories, but
may also, upon re-quest, propound other interrogatories and may
request production of documents. When they, send supplemental interrogatories
or request production of documents, however, they must attach to the
discovery request the responses they would give if they received the
same request from the other party.
Child Custody Education
In every divorce or modification which involves unemancipated minor
children and in every paternity case, the parties and, where
appropriate, the children must participate in a court-approved child
custody education program. The purpose of this program is to educate
parents on the detrimental effect of parental conflict and, how to
avoid such conflict and its effects ,
The petitioner or movant must complete the program within 45 days
after filing the petition or motion to modify. The respondent must
complete the program within 45 days after service.
No final hearing may be held ii the case until a certificate of
completion for each non-defaulting party is filed with the court.
Parties who fail to complete the child custody education program are
subject to sanctions by the court.
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