What Is a Child Custody Modification?
Although child custody is a court order, it can be changed. The State of Missouri child custody laws are designed so that the best interests of the children have to be standard used by judges to make custody decisions.
Therefore, if a custody change is in the child’s best interest, it’s essential to seek changes. However, the parent seeking the change must also prove that a significant change in circumstances occurred since the original order.
When Can Joint Custody Be Modified to Sole Custody?
While the judges often award joint custody, since it is considered the best option in a child custody case, that decision can be altered.
Changes that can qualify as a substantial change in circumstances and thus result in child custody modification include, for example, child relocation or refusals to allow the child to spend appropriate parenting time with the other parent.
A significant change in a parent’s health or habits that may adversely affect the child, like alcohol and drug abuse, can also be considered factors that can necessitate a modification of child custody.
A change of custody can also be warranted if, for example, a father with weekend visitation notices his child falls behind on development markers, but the child’s mother doesn’t seek medical attention. In other words, any change that can reflect the child’s best interests may be a good enough reason to grant a custody modification.
Modifying Sole Physical Custody to Joint Physical Custody
A motion to modify sole physical custody to joint physical custody may be a difficult undertaking.
The law presents a strong preference for joint physical custody with a scheme for sharing parenting time that allows each parent to have “significant” but not necessarily equal time with the children. If the previous court did not award joint physical custody, the burden of showing a substantial change of circumstances will be high.
Most often, success in such situations is due to children becoming older. Babies and toddlers have significantly different needs than elementary-aged school children and as children enter high school, their wishes regarding custody are generally given more weight by St. Louis County judges.
What Is a “Siegenthaler” Schedule?
Because of the difference in the burden of proof in the different situations, the appellate courts have directed that care must be taken in how physical custody is designated. Specifically, in November of 2020, the Eastern District of the Missouri Court of Appeals (where St. Louis City and County are located) ruled that what is often referred to as a “Siegenthaler” schedule (essentially an arrangement where the children live with one parent and see the other parent one night a week, every other weekend and half of the holidays and the summer) is not joint physical custody.
Therefore, in a situation where one parent has Siegenthaler-type time with the children he or she must show a substantial change in their circumstances or those of the children to establish the right to joint physical custody.
Of course, joint physical custody does not automatically mean equal or 50-50 custody, but that is the default meaning to the overwhelming majority of St. Louis judges. In reality, if a judge wants to modify a judgment to award joint physical custody, they can fashion a judgment to that effect that will stand up on appeal.
As attorneys, we often denominate a schedule where the time given to one parent is Siegenthaler-type visitation “joint physical custody” just to settle the case. It is amazing how important it is to some parents to be able to say that they have “joint custody.” At the risk of being cynical, the judge is going to do what they want on any subsequent modification and they can justify their result regardless of the label originally applied.
Modification of a Sole Legal Custody to Joint Legal Custody
In St. Louis County, it is rare for judges to modify an order of sole legal custody to one parent to award joint legal custody to both parents.
There is a strong preference for joint legal custody in St. Louis County, without respect to the arrangements for parenting time with the children. If joint legal custody was not awarded, it is because the judge believes that the parents are unable to make shared decisions about the welfare of their children.
Joint legal custody may be ordered by the court even where there is some level of tension and hostility between the parents on a personal level so long as the parents have the willingness and ability to fundamentally cooperate in making decisions regarding the children’s upbringing.
Joint legal custody will always be considered and may be awarded even if one party objects. As such, if the judge found such lack of harmony, it is difficult to prove that the situation has totally improved if one parent continues to object to joint legal custody.
Modification of Visitation vs. Child Custody Modification: Is There a Difference?
The Missouri law contains a very slight – but possibly very significant – distinction between a modification seeking a change in visitation and a modification seeking a change in custody.
For a modification of visitation, the party seeking the change must prove only that modification of visitation would be in the best interests of the children. There is no requirement that there has been a substantial change in the circumstances of the child or of the custodial parent.
For a modification of custody, the party seeking the change must claim and prove that a substantial change has occurred in the circumstances of either the child or the custodial parent.
Don’t forget that the burden of proof lies with the parent seeking the child custody modification. If you are that parent, make sure you hire a law firm that is well-versed in the intricacies of St. Louis child custody matters. The Carson Law Firm can make sure this process goes as smoothly as possible.