Section 9.20 Generally

• Library: Family Law Deskbook and 2014 Supp

A. (§9.20) Generally

Under § 452.377.2, RSMo 2000, notice of a proposed relocation of a child must be provided at least 60 days in advance of the proposed relocation and must include the following:

(1) The intended new residence, including the specific address and mailing address, if known, and if not known, the city;

(2) The home telephone number of the new residence, if known;

(3) The date of the intended move or proposed relocation;

(4) A brief statement of the specific reasons for the proposed relocation of a child, if applicable; and

(5) A proposal for a revised schedule of custody or visitation with the child, if applicable.

Section 452.377.1 defines “relocation” as a change in the principal residence of a child for 90 days or more, but it does not include a temporary absence from the principal residence. There is no distinction between in-state and out-of-state moves; notice must be provided, regardless of the distance.

In Baxley v. Jarred, 91 S.W.3d 192, 205–06 (Mo. App. W.D. 2002), the court held that, even though the mother notified the father of her intent to relocate by regular mail and not certified mail, because the father admitted he actually received the notice, the failure to use certified mail was not prejudicial. The court in Baxley further held that, when the father received the notice but failed to file a motion objecting to the relocation within 30 days in accordance with § 452.377.7, the mother was free to relocate with the child without the express consent of the father or the court. Baxley, 91 S.W.3d at 206.

In Melton v. Collins, 134 S.W.3d 749, 754 (Mo. App. S.D. 2004), the Southern District affirmed a trial court’s denial of relocation when the mother sent two certified letters informing the father of her relocation after she had already moved with the child. The court held, “[a]bsent some exigent circumstance, the failure to provide proper notice of proposed relocation prior to moving thwarts the non-relocating parent’s procedural rights to contest the move as guaranteed by section 452.377.7.” Melton, 134 S.W.3d at 754. Strict compliance with the notice requirements is not necessary; substantial compliance is sufficient. Id. at 752–54.

But see Buck v. Buck, 279 S.W.3d 547, 549 (Mo. App. S.D. 2009), in which the Southern District prohibited relocation and stated that verbal notice does not equate to substantial compliance with § 452.377.2. The mother moved to another city with the child, and the father physically assisted with the move. Buck, 279 S.W.3d at 550. When the father learned of the mother’s intent to permanently relocate with the children and change their schools, he timely filed an objection. Id. The court denied the mother’s motion to modify but modified the parenting times. The authors believe that the court leaves the door open for an implied waiver by acquiescence in future cases with a similar fact pattern.

The attorney must inquire in all relocation cases whether there are any third parties entitled, by court order, to visitation with the children. For example, grandparents who have court-ordered visitation must be provided with notice of the relocation in writing by certified mail and, “[a]bsent exigent circumstances,” 60 days in advance of the proposed move. Section 452.377.2. This revision to the statute requires notice of the relocation even if the move is across the street.

Section 452.377.7 states that a parent may relocate with the child after proper notice has been given, “unless a parent files a motion seeking an order to prevent the relocation within thirty days after receipt of such notice.” This motion, which is usually accompanied with a motion to modify, although not necessary, shall include an affidavit setting forth specific facts supporting the proposed objection to relocation. Id.

In Dent v. Dent, 248 S.W.3d 646, 647 (Mo. App. E.D. 2008), the mother sent the father a certified letter notifying him of her plans to marry and relocate with the child, and he failed to object within 30 days. The Eastern District held that a parent has an absolute right to relocate without the permission of the other parent or the court after providing the requisite notice under § 452.377.2 unless the other parent files a motion to prevent relocation within 30 days after receipt of notice. Dent, 248 S.W.3d at 648.

See Wright ex rel. McBath v. Wright, 129 S.W.3d 882, 888 (Mo. App. W.D. 2004), which states that substantial compliance with § 452.377.2 must be shown before relocation can be granted for failure to timely object in accordance with § 452.377.7. The Wright court held that “oral” notice that the parent “might be moving” is not sufficient notice. Id. at 888.

Section 452.377.9 reads, “The party seeking to relocate [the child] shall have the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child.” This changes the previous standard in which the paramount concern was only the best interest of the child. For many years, the courts applied a four-factor test to determine whether relocation was proper in a particular case. See:

· Michel v. Michel, 834 S.W.2d 773 (Mo. App. S.D. 1992), superseded by statute as stated in Stowe v. Spence, 41 S.W.3d 468 (Mo. banc 2001)

· Sadler v. Favro, 23 S.W.3d 253 (Mo. App. W.D. 2000), abrogation recognized in...