Section 12.23 Domestic Violence and Its Impact on Custody Proceedings

• Library: Family Law Deskbook and 2014 Supp

E. (§12.23) Domestic Violence and Its Impact on Custody Proceedings

Section 452.375.2(6), RSMo Supp. 2011, states:

If the court finds that a pattern of domestic violence . . . has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm.

This statutory language requires findings by the court if a pattern of abuse is found and if the court awards custody to the abusive parent. See Dickerson v. Dickerson, 55 S.W.3d 867 (Mo. App. W.D. 2001).

Section 452.375.13 requires the court, upon a finding of the occurrence of domestic violence, to enter specific findings of fact to show that a family member subjected to domestic violence will be protected from further harm by the terms of the custody or visitation arrangement ordered by the court. This language does not require the court to find a pattern of abuse, and it does not matter to whom the court awards custody. Accordingly, in Ludwig v. Ludwig, 126 S.W.3d 466 (Mo. App. W.D. 2004), the appellate court found that the trial court was required to make findings of fact when both parties admitted to domestic violence although the incidences did not establish a pattern. See also Foeste v. Foeste, 122 S.W.3d 698 (Mo. App. E.D. 2003).

If sufficient evidence of abuse exists, the court must make the required specific findings of fact. The appellate court determined in Carter v. Carter, 940 S.W.2d 12 (Mo. App. W.D. 1997), that the trial court was required to make specific findings of fact regarding abuse when evidence demonstrated the husband’s pattern of physical and verbal abuse directed toward the wife. The appellate court remanded the case for the trial court to make determinations satisfying the statute.

In Mund v. Mund, 7 S.W.3d 401 (Mo. banc 1999), the trial court awarded custody to the father but failed to make explicit findings regarding domestic violence between the parties. Both parties testified to a history of physical altercations between them during their relationship. In fact, the father testified that altercations between the two were so frequent that he was “used to it.” Id. at 403. The Supreme Court noted that Rule...