From – Missouri Lawyers Weekly
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.
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.”
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.”
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.