Section 9.35 Standard for Modification

• Library: Family Law Deskbook and 2014 Supp

B. (§9.35) Standard for Modification

Under § 452.410.1, RSMo 2000, a prior custody decree (not visitation rights) shall not be modified by the court unless:

it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.

This is the standard used to modify a prior “custody” order.

In Russell v. Russell, 210 S.W.3d 191 (Mo. banc 2007), the Supreme Court clarified the legal standard for modifying an order of joint physical custody. The Court held, “The requirement that the change be substantial is no longer appropriate where simple shifts in parenting time are at issue. Courts should not require a ‘substantial’ change from the circumstances of the original judgment where the modification sought is simply a rearrangement in a joint physical custody schedule.” Id. at 197 (emphasis added).

Russell reaffirmed the proper standard for modification of a “custody” award, defined as “joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof” is governed by § 452.410.1. Id. at 196; see also Hightower v. Myers, 304 S.W.3d 727 (Mo. banc 2010) (courts do not need to require a “substantial” or “continuing” change of circumstance when the modification sought is simply a rearrangement in a joint physical custody decree.). In contrast, the Russell Court reaffirmed that to “modify a previous order of visitation rights, a court must merely find that the modification would serve the best interests of the child.” Russell, 210 S.W.3d at 196 (emphasis added). In dictum, the Court stated that “[a] change from sole custody in one parent to sole custody in another parent is drastic, and courts rightly concluded that the modification must be based on a ‘substantial’ change.” Id. at 197. Counsel should note that there is a lower standard of proof to modify a visitation award.

The Western District followed Russell, 210 S.W.3d 191, in Ronquille v. Ronquille, 263 S.W.3d 770 (Mo. App. W.D. 2008). The trial court awarded joint legal custody of the children and sole physical custody to the mother. Later, the father filed a motion for sole physical custody, but the court denied his request because he failed to show a substantial change in circumstances. Id. at 773. The court stated that the party seeking to deprive one custodial parent of custody altogether must prove a substantial change of circumstances as a matter of public policy. Id. at 774.

The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger the child’s physical health or impair his or her emotional development.

Section 452.400.2(1), RSMo Supp. 2011 (emphasis added).

In Turley v. Turley, 5 S.W.3d 162 (Mo. banc 1999), the Supreme Court held that not every modification rises to the level of a restriction or limitation, but if the modification restricts or limits a party’s visitation rights as compared to the original agreement, the requirement in § 452.400.2 must be applied. The Court provided examples of restrictions:

· Preventing overnight visitation

· Restricting visits to the custodial parent’s home

· Requiring a third party to be present to supervise during visits

Turley, 5 S.W.3d at 165.

A change in the circumstances of the noncustodial parent is not sufficient to warrant a transfer of custody. Smith v. Smith, 839 S.W.2d 382 (Mo. App. S.D. 1992). Change in circumstances necessary for modification must relate to circumstances of children or their custodian, not to those of the noncustodial parent. McCreary v. McCreary, 954 S.W.2d 433, 439 (Mo. App. W.D. 1997). There is no longer an exception to this requirement that this change be in regard to the child or the child’s custodian in...