The Missouri Court of Appeals, Western District, issued an opinion in Rackers v. Rackers…

The Missouri Court of Appeals, Western District, issued an opinion in Rackers v. Rackers, –S.W.3d— (Mo. App. W.D. 79077) on October 4, 2016, reversing the judgment of the Circuit Court of Cole County.  Paul T. Graham, LLC, represented the winning party.  The judgment reversed concerned child support.  The question presented concerned Line 11 of the Form 14. Missouri Courts use the Form 14 to set child support.  Each party’s monthly income is placed on Line 1 of the Form 14, and the lines between one and 11 account for things like the need to support children by other marriages or relationships, childcare expenses, health insurance premiums, and extraordinary expenses.  Line 11 then provides for a discount to the parent paying child support in recognition of the expenses which s/he will incur on account of the overnight visitation which s/he receives.

 

In Rackers v. Rackers, two rules seemed to collide.   One of those rules said that if the parent receiving child support is making less than a certain amount—in this case $1,700 per month—then the other parent gets no Line 11 discount unless (a) the parent entitled to get child support is underemployed or unemployed because his/her expenses are being paid in whole or party by someone with whom s/he cohabits; or (b) the income of the parent paying child support minus the presumed child support is equal to or less than a certain amount—in this case $1,700 per month.  In Rackers, mother’s income was far below $1,700 per month because she was wholly disabled, and father’s income was far about above $1,700.  But the Circuit Court of Cole County gave father a 50% discount at Line 11.

 

The second rule involved in Rackers was the rule that said that the Line 11 discount assumes that the parent who is paying support is not paying “non-duplicated fixed expenditures.”  Examples of “non-duplicated fixed expenditures” are clothes.  Often the parent receiving child support is buying the children’s clothes, and those clothes go back and forth with the children during visitation.  If the parents share the kids 50/50 both are providing clothes for the children, then the Line 11 assumptions don’t apply.  The Circuit Court of Cole County concluded that the second rule trumped the first rule and gave the parenting paying support a 50% discount based upon a finding that he was paying for clothes, etc.

 

In Rackers v. Rackers, the Court of Appeals reversed the Cole County judge, finding that (a) regardless of whether father was paying for clothes, etc., he was entitled to no discount at Line 11 because mother’s income was below $1700 per month, but that (b) the Cole County judge should look at the case again to decide whether the application of the guidelines was unjust and inappropriate.    The lesson?  If the Line 11 discount does not apply because the person receiving support is receiving very little income, the Line 11 discount does not, nevertheless, still get applied just because one of the assumptions on which the guidelines are based does not apply.  Instead, the question becomes whether to apply the guidelines at all.  The question becomes whether the application of the guidelines is unjust and inappropriate.

Divorce and Estate Planning

Anyone going through a divorce should consider doing some estate planning.  The dissolution of a marriage dissolves the legal bonds between the married parties that were created by the marriage.  But it does not remove the bonds between a parent and a child.  The continued existence of these legal bonds becomes very evident when a child becomes disabled or when one or both of the child’s parents re-marries.  What happens to your property if you get re-married, your new spouse has children, then you die, and then your new spouse dies?

Often people come to me and ask how they can arrange their affairs so that their ex-spouse can’t get ahold of their property when they die and their minor or disabled adult child inherits their property.  They ask if they can prevent such a thing happening with a power of attorney or by appointing a sister as the child’s guardian.  Short answer:  Those solutions won’t work, but they are on the right track.  A power of attorney won’t work because while it gives an “attorney in fact” power over property, it won’t outlast your death and because it doesn’t actually keep other people from also getting control of the property.    Designating a guardian for the child may not work because only a court can actually appoint a guardian, because the court has the last word on who a child’s legal guardian will be, and because a person who is appointed legal guardian and conservator of a child is then given control of the property owned by the child.  A much better solution would be a living revocable trust that appoints the sister as the trustee and, therefore, the legal owner of the property in question.  The ex-spouse might be appointed the child’s guardian and conservator by a court, but the court cannot then give that ex-spouse control of property that is already in a trust.

Other people come to me, ask the question above, and then complicate it further with the question of how to arrange their affairs so that they can re-marry and protect their property from the claims of the children of the man or woman they want to marry.  Of course, the other party to the prospective marriage may have the same concerns.  A solution in such a case may be a revocable living trust wrapped up inside of a post-nuptial agreement.

The point here is not to go through the entire list of estate planning tools at the disposal of a family lawyer.  The point is that a family lawyer should have those tools in the tool chest and that while the dissolution of a marriage may solve some problems by dissolving the legal bonds between the married parties, the divorce solves only one problem and leaves the other problem behind:  how to protect a child’s rights and needs from an ex-spouse and from the claims of strangers.

So the work is only partly done at the end of divorce proceedings.  One set of legal relationships has been dissolved.  But another set of legal relationships still exists—with the children; and a third set of legal relationships may be in the future—with a new family. As the family lawyer helps dissolve and adjust the legal relationships with an existing family, the family lawyer can also help look down the road and plan for the new family relationships and help head off collisions between the first family and the second family.

 

 

INSURANCE COMPANIES REPORT LOSING MONEY BECAUSE OF THE AFFORDABLE CARE ACT

 

WHY?

Insurance companies say they are losing money because of the Affordable Care Act, also known as “Obamacare.”  Anthem, Inc. has reported that because of “higher than expected medical costs,” it has been sustaining an operating margin loss on its ACA plans in 2016.  UnitedHealth Group, Inc., has confirmed that it is getting completely out of the ACA marketplaces in 2017.  Anthem reports that it is going to be raising its premiums on policies sold on the ACA exchanges.

The fact is that the exchanges have brought the proportion of uninsured Americans to an all-time low, according to a report prepared by the consulting firm McKinsey and Company.  But according to the report, the transition into Obamacare has been rocky and up and down for the insurance companies.  And according to the Wall Street Journal, insurance companies are giving up and ending their exchange offerings.

Not surprisingly, the McKinsey report states that the insurance companies most likely to be making profits are also the ones that are most aggressively managing care by emphasizing prevention.

A step back, however, should make it clear why insurance companies could lose money on exchange policies—and why aggressive management, i.e., claim denial, might not be the fix.  One could guess that the people who are acquiring insurance on the exchange are those who literally fell through the cracks before the ACA was enacted.  These may be the folks who, before the ACA, could not get insurance because of pre-existing conditions, or needed maternity care, or required mental health treatment.  But these are the same people who did not qualify for Medicaid or Medicare because their conditions did not disable them and qualify them for these programs.  That was the crack they fell through. The ACA now requires insurance companies to cover all these conditions and people if the insurance companies are going to participate in the ACA exchange at all.  If an insurance company is into the exchange business for a penny, then it’s in for a pound.

This may not be rocket science.  If the ACA is requiring coverage for treatment of a thousand people now instead of the five-hundred people who had coverage before the ACA and the second group of five hundred is comprised of all those sick people who could not get coverage before the ACA was enacted because they were sick and are now getting coverage and treatment and getting the treatment more frequently than the well people who comprised the first five hundred, one would expect the costs would go up.

But one is then left with a question:  Why did it cost so much money to insure all the well people who weren’t getting treatment before the ACA required insurance companies to insure the sick people and pay for their treatment?  Something I have noticed over the years is that the more “management” insurance companies impose on care, the higher the costs.  If you have a bunch of people employed by the insurance companies whose job it is to second-guess the doctors and if you have a bunch of people in turn employed by the doctors and hospitals who spend their days on the phone arguing with the insurance companies’ second-guessers—and you have to pay all these salaries on both sides of the arguments–what would you expect to happen next?

SLEEPING DISORDERS AND SOCIAL SECURITY DISABILITY

More and more people are using CPAP machines prescribed by their physicians.  In many cases, CPAPs are being prescribed to help with sleep-related breathing disorders where interrupted breathing–sleep apnea–interrupts normal sleep.

Interrupted normal sleep can lead to chronic anxiety disorders, high blood pressure and chronic heart failure.   Chronic anxiety disorders can morph into full-blown chronic panic disorders, and high blood pressure can lead to stroke and heart attack.

Recently, the Social Security Administration revised its respiratory Listings, and as a part of that revision laid out some new rules on how sleep-related breathing disorders will be evaluated.  Listing 3.00P explains that whether a breathing disorder is disabling will be evaluated under the listing for the affected body system.  For example, chronic pulmonary hypertension (Listing 3.09), chronic heart failure (Listing 4.02) and disturbances in mood, cognition and behavior (Listing 12.02) may be considered.  Listing 3.00I explains that obesity is a medically determinable impairment that is often associated with disturbance of the respiratory system and that such a disturbance can be a major cause of disability in individuals with obesity.

ENDING CHILD SSI BENEFITS

A disabled child is entitled to Social Security disability—but only to SSI benefits because the child has never paid Social Security taxes and cannot, therefore, be entitled to SSDI.  On June 7, 2016, Speaker of the U.S. House of Representatives Paul Ryan (R-Wisconsin) released an outline of Republican proposals to address poverty.  The report, called “Poverty, Opportunity and Upward Mobility,” is available at http://abetterway.speaker.gov/assets/pdf/ABetterWay-Poverty-PolicyPaper.pdf.

At this time, no legislation based upon this report has been introduced in Congress.  Among other things, the report recommends at page 12 the elimination of children’s SSI.  Instead of monitory benefits, the children would receive “in-kind services.”  The theme of the report seems to be that people who receive money for disability tend to get comfortable with living a life of disability and that people who receive services that help them learn to work despite a disability tend to get off of disability.  The proposal states:

“Reform Supplemental Security Income to Focus on Needed Services:  One of the most concerning trends in the SSI program is the rising number of children coming onto the program.  The average lifetime stay on SSI for people who come onto benefits as children is an incredible 26.7 years.  Further, a disturbing 30 percent of older teens on SSI have dropped out of high school, which only adds to the barriers they face in going to work and leading productive lives as adults.  Access to needed services in lieu of cash assistance, whether it be mental or physical therapies, or special-education services in school should be the focus of the SSI program.”

DO YOUR PHYSICAL OR MENTAL PROBLEMS QUALIFY YOU FOR SOCIAL SECURITY

Do your physical or mental conditions qualify you for Social Security disability benefits?  You are out here on the internet just trying to get a simple, straightforward “yes” or “no”.  Let me try to give you a straight answer without a bunch of legal gobbledygook.

  • If you go to the Social Security Office or its website, you will be told “yes. . .but only if this, and if this, and if this.”  Or you will be told “no. . . because of this, and this and this.”  And with all the twists and turns and maybe soes and maybe nots, you may get discouraged and just give up trying to get a straightforward answer.
  • The same thing can happen to you if you go to a lawyer.
  • But getting to an answer really isn’t that hard.   You can answer the question “yes” or “no” yourself—if you are prepared to give a true answer to some very simple questions.
  • Here is how to do it:  Just ask yourself, “Can I put in a single 8-hour day working?”  Be completely truthful.  If the true answer is “no”, then your physical or mental problems will qualify you for Social Security disability.
  • And you may still be qualified even if the true answer is “yes”.  Let’s say that you can put in a day’s work for 8 hours on a Monday.  But let’s also say that if you do, you are going to pay for it and you won’t be able to do it again on Tuesday.  If that is true, then you are qualified for Social Security disability.
  • And so on.  Even if you can work five 8-hour days in a row, you are very likely qualified for benefits if you are going to miss every sixth day because of a mental or physical problem.  The fact is that if you are truly going to miss work more than a couple of times in a month because of physical or mental problems, then – unless you are some high-dollar earner who can make a lot of money for his/her employer even though you are going to miss work – you qualify for Social Security disability benefits.
  • No doubt you have noticed that I have kept using the word “true.”  That’s where my job as your attorney comes into the picture–to help you get the Social Security Administration to believe you are telling them the truth.

THE RIGHT TO BEAR ARMS AND ORDERS OF PROTECTION IN MISSOURI

Federal law, 18 U.S.C. Section 922(g) (8) prohibits the following persons from possessing, shipping/transporting, or receiving any firearm or ammunition:

 

“a person subject to a court order that was issued after a hearing in which the person participated, which order restrains the person from harassing, stalking, or threatening an intimate partner[1] or partner’s child, and which order includes a finding that the person is a credible threat to such partner or partner’s child, or by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child.”

 

The penalty for violating this law is up to ten years imprisonment in Federal prison and/or a $250,000 fine.

 

A

 

Federal law prohibits the possession of firearms or ammunition even if an order of protection was consented to on a “no fault” basis—no matter what a state court judge tells you.

 

There is an urban legend operating in some of the courts of Missouri that if a person consents to a “no fault” order of protection, s/he can keep her firearms and ammunition.  That is not so if the order prohibits the use of force or the threatened use of force.

 

No “full “order of protection may issue without a “hearing.”[2]  That is so regardless of whether the order is consented to or not.  The federal statute covers any order issued after a hearing, so it covers any full order, consented to or not.  Furthermore, the federal statute does not distinguish “no fault” orders from others.  While the federal statute covers orders where there was “a finding that the person is a credible threat”, which would contemplate a “non-consent” situation, the federal statute also covers any other order which “by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child.”   Clearly, this statute covers all full orders, regardless of whether consented to or not.

 

B

 

Federal law prohibits the possession of firearms or ammunition even if an order of protection was a temporary order–no matter what a state court judge tells you.  And this is so regardless of whether the order was issued in an adult abuse case or a divorce case.

 

There is also a myth that a person may keep his/her firearms and ammunition if the order prohibiting the use of force or the threatened use of force is only “temporary” and not a “full order of protection.”  That also may not be so, depending upon whether the temporary order was also ex parte or not.

 

We often refer to adult protection proceedings as “ex parte” proceedings because a court can enter an “ex parte” order right after a petition is filed and before the respondent has any notice of what is going on.  The expression “ex parte” means that the respondent—the person against whom an order is sought–was not present when a judge signed the order.  The federal statue applies only to a person against whom an order “was issued after a hearing in which the person participated.”  So the federal statute does not apply to a person against whom a Missouri “ex parte” order was issued.

 

But a Missouri “ex parte” order is only temporary.  The person against whom such an order was obtained—the respondent–has a right to a quick hearing on the question of whether the order should be made permanent, the case dismissed, or something in between.   What happens then?  Several things can happen.  There can be a hearing on a full order of protection, and if a full order issues after a hearing and prohibits the use of force or the threatened use of force, then the federal law prohibiting the possession of firearms and ammunition is triggered.

 

On the other hand, by agreement of the parties (or even on the court’s own motion), the court may leave an order which was originally entered ex parte in place as a continuing temporary order—one that is not yet a “full” order.  Sometimes the parties involved also file for divorce, and by agreement of the parties the adult abuse case is dismissed and a temporary restraining order is entered in the divorce case prohibiting “the use, attempted use or threatened use of such force against such partner or partner’s child.”  The federal statute does not distinguish between a temporary order and a full order, does not distinguish between whether the order is entered in the context of a divorce action or in the context of an action brought under an adult protection statute, and, as already explained above, does not distinguish between orders that are consented to and orders that are not consented to.

 

In other words, any temporary order except for an initial ex parte order which prohibits the use of force or the threat of a use of force triggers the federal statute prohibiting the possession of firearms or ammunition.

 

C

 

How can a Respondent keep his/her firearms?

 

If you get into a situation where someone wants an order against you and you want to keep your firearms and ammunition, talk to your attorney.  Short of simply trying to win the case and getting a dismissal (and so risking a loss), one solution to discuss is to consent to an order that simply states that you are not to be anywhere in the presence of the petitioner, not to enter his/her place of work or upon his/her property, and not to communicate with him/her.  The federal statute is triggered by an order prohibiting “the use, attempted use or threated use of force.”  The federal statute does not refer to orders simply prohibiting you from coming around a petitioner or communicating with a petitioner.

 

But don’t try to do this on your own.  Talk to your lawyer.  Note the penalties I laid out at the beginning of this little discussion—what can happen if you get it wrong.

 

D

 

Must an abuse victim agree to an order that lets the abuser keep firearms?

 

The answer would certainly be “no”.  If you are an abuse victim and have asked for an order of protection, you do not have to be bullied into agreeing to language in an order which will make an end-run around the federal statute.  Although a state court judge cannot give someone permission to bear arms where a federal statute says otherwise, a state court judge can say the magic words that trigger the federal statute.  While the state court judge can’t “give”, the judge can certainly “take away.”  If you have filed a petition for an order of protection and you don’t think that the Respondent should have firearms, tell the judge and tell why.  If the judge believes on sufficient evidence that you have been abused and that you should be protected from force or the threat of force, then the judge should enter an order of protection which by its terms prohibits “the use, attempted use or threatened use of such force against such partner or partner’s child.”   No guns allowed then.  That’s what the federal law says and that is what it is for.


 

[1] The term “intimate partner” means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.  18 U.S.C. Section 921 (a) (32).

[2] A “full” order lasts for 180 days or 365 days.  If the order is a final, appealable judgment, then it is a “full” order.  Typically, the Court will call it that by name, but regardless of whether it is call “full”, if it is appealable it is “full.”

 

Divorced Parents Relocating With Children – What You Need To Know

A divorce places limits and duties on parents with respect to their children which they don’t labor under when married. A divorce decree will place limits on visitation and create a duty to pay child support. But there are more. In Missouri, divorced couples are responsible for their children’s college education until they children are 21. Children of intact marriages don’t have that right.

Divorced parents are also limited in moving their children’s principal residence. Crossing the line on the limits of your ability to move children is a serious mistake. Section 452.411, RSMO, provides that “[i]f either parent of a child changes his residence to another state, such change of residence of the parent shall be deemed a change of circumstances under section 452.410, allowing the court to modify a prior visitation or custody decree.” That’s an old law, but still on the books. A newer Missouri law is actually more restrictive: Section 452.377, RSMO, states that relocation without compliance with the rules laid out in that statute can result in a change of custody. Section 452.377 applies to a move anywhere. This article concerns those rules.

The rules are triggered if there is a “relocation.” A “relocation” is not a “temporary absence” from the principal residence. It means a “change in the principal residence of a child for a period of ninety days or more.” If such a change is to occur, then advance notice must be given in compliance with the following rules:

• The notice must be in writing.
• It must go to anyone with a right to visitation or custody.
• The notice must go by certified mail, return receipt requested.
• The notice must be given at least sixty days before the proposed relocation.
• It must contain, if known, the new address and telephone number, the date of the move, the reasons for the move, and a proposed new custody and visitation schedule.

Those are the rules which must be followed by the person wishing to relocate the child. If these rules are followed, then anyone who opposes relocation must also follow some rules to get the relocation stopped. In a nutshell, that person is going to have to go to court. He or she must file a motion with the court asking for an order to prevent relocation within thirty days after receiving the notice. If such a motion is not filed or not filed on time, that is almost certainly the end of it, and the parent wanting to relocate the child may move.

A motion preventing relocation must not only be filed within 30 days of receiving the notice, the motion must be accompanied by an affidavit setting forth the specific facts against relocation. Once a motion preventing relocation is filed, the burden jumps back to the person wanting to relocate the child. That person now has to go to court too. That person must file a response to the motion preventing relocation and must do so within 14 days. The response must contain a counter-affidavit setting out the facts supporting relocation and a proposed revised parenting plan.

And then if the folks involved cannot settle their differences, there is a trial.
Although the person opposing relocation had the burden of filing a motion opposing relocation—had the duty to start the lawsuit—the person who wants to move has the burden of proof in the trial. What must that person show? That the proposed relocation is made in good faith and serves the best interests of the child.

So in summary:

• The person who wants to move the child must give written notice. If no notice is given but there is a move, then the court can order a change in custody.
• The person who opposes relocation must file a motion with the Court objecting to the move. If that motion is not filed within 30 days of the receipt of the notice, the child may be relocated.
• If person opposing relocation files a timely motion objecting to the move, then the person who wants a move must file a response within 14 days.
• Then there is a trial where the one wanting to move has the burden to show that the move is in good faith and serves the child’s best interests.

A Couple More Comments:

• Missouri law doesn’t apply just to divorce situations. The key question is not divorce. The key question is who has custody or visitation rights. Such rights might, for example, be established in the modification of a divorce decree; in a paternity case; or in a custody case.
• A bright line is an actual order granting custody or visitation rights. But two other situations jump to mind. The probate code states that a father and mother are the natural guardians of their children and have the right to the custody of their children. Section 475.025, RSMO. Court-ordered guardians may be given the same rights. Under Section 452.377, these people would have to be given notice.
• Additionally, a grandparent may have a custody or visitation right under a Section 452.400 order and would have to receive notice under Section 452.377
• If relocation of the child is proposed, a third party entitled by court order to legal custody of or visitation with a child and who is not a parent—such as a grandparent with an order under Section 452.400—may file a cause of action to obtain a revised schedule of legal custody or visitation. However, a third party may not prevent relocation.
• The ultimate question is whether the proposed relocation is made in good faith and serves the best interests of the child. Note that the question is not whether a relocation will allow for a better job, house, neighborhood, schools, etc. To be “relevant” all such considerations must ultimately point to whether the relocation is in good faith and in the child’s best interests.

Statute
Here is the statute:

Relocation of child by parent for more than ninety days, required procedure–violation, effect–notice of relocation of parent, required procedure.
452.377. 1. For purposes of this section and section 452.375, “relocate” or “relocation” means a change in the principal residence of a child for a period of ninety days or more, but does not include a temporary absence from the principal residence.
2. Notice of a proposed relocation of the residence of the child, or any party entitled to custody or visitation of the child, shall be given in writing by certified mail, return receipt requested, to any party with custody or visitation rights. Absent exigent circumstances as determined by a court with jurisdiction, written notice shall be provided at least sixty days in advance of the proposed relocation. The notice of the proposed relocation shall include the following information:
(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.
3. A party required to give notice of a proposed relocation pursuant to subsection 2 of this section has a continuing duty to provide a change in or addition to the information required by this section as soon as such information becomes known.
4. In exceptional circumstances where the court makes a finding that the health or safety of any adult or child would be unreasonably placed at risk by the disclosure of the required identifying information concerning a proposed relocation of the child, the court may order that:
(1) The specific residence address and telephone number of the child, parent or person, and other identifying information shall not be disclosed in the pleadings, notice, other documents filed in the proceeding or the final order except for an in camera disclosure;
(2) The notice requirements provided by this section shall be waived to the extent necessary to protect the health or safety of a child or any adult; or
(3) Any other remedial action the court considers necessary to facilitate the legitimate needs of the parties and the best interest of the child.
5. The court shall consider a failure to provide notice of a proposed relocation of a child as:
(1) A factor in determining whether custody and visitation should be modified;
(2) A basis for ordering the return of the child if the relocation occurs without notice; and
(3) Sufficient cause to order the party seeking to relocate the child to pay reasonable expenses and attorneys fees incurred by the party objecting to the relocation.
6. If the parties agree to a revised schedule of custody and visitation for the child, which includes a parenting plan, they may submit the terms of such agreement to the court with a written affidavit signed by all parties with custody or visitation assenting to the terms of the agreement, and the court may order the revised parenting plan and applicable visitation schedule without a hearing.
7. The residence of the child may be relocated sixty days after providing notice, as required by this section, unless a parent files a motion seeking an order to prevent the relocation within thirty days after receipt of such notice. Such motion shall be accompanied by an affidavit setting forth the specific factual basis supporting a prohibition of the relocation. The person seeking relocation shall file a response to the motion within fourteen days, unless extended by the court for good cause, and include a counter-affidavit setting forth the facts in support of the relocation as well as a proposed revised parenting plan for the child.
8. If relocation of the child is proposed, a third party entitled by court order to legal custody of or visitation with a child and who is not a parent may file a cause of action to obtain a revised schedule of legal custody or visitation, but shall not prevent a relocation.
9. The party seeking to relocate shall have the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child.
10. If relocation is permitted:
(1) The court shall order contact with the nonrelocating party including custody or visitation and telephone access sufficient to assure that the child has frequent, continuing and meaningful contact with the nonrelocating party unless the child’s best interest warrants* otherwise; and
(2) The court shall specify how the transportation costs will be allocated between the parties and adjust the child support, as appropriate, considering the costs of transportation.
11. After August 28, 1998, every court order establishing or modifying custody or visitation shall include the following language: “Absent exigent circumstances as determined by a court with jurisdiction, you, as a party to this action, are ordered to notify, in writing by certified mail, return receipt requested, and at least sixty days prior to the proposed relocation, each party to this action of any proposed relocation of the principal residence of the child, including the following information:
(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 the child; and
(5) A proposal for a revised schedule of custody or visitation with the child. Your obligation to provide this information to each party continues as long as you or any other party by virtue of this order is entitled to custody of a child covered by this order. Your failure to obey the order of this court regarding the proposed relocation may result in further litigation to enforce such order, including contempt of court. In addition, your failure to notify a party of a relocation of the child may be considered in a proceeding to modify custody or visitation with the child. Reasonable costs and attorney fees may be assessed against you if you fail to give the required notice.”
12. Violation of the provisions of this section or a court order under this section may be deemed a change of circumstance under section 452.410, allowing the court to modify the prior custody decree. In addition, the court may utilize any and all powers relating to contempt conferred on it by law or rule of the Missouri Supreme Court.
13. Any party who objects in good faith to the relocation of a child’s principal** residence shall not be ordered to pay the costs and attorney’s fees of the party seeking to relocate.

CHILD SUPPORT AND COLLEGE – DANGER!

Missouri law provides that child support will continue for a child who is in college.  The bullet points are as follows:

 

  • Not just college is involved. The statute says “institution of vocational or higher education.”
  • The child must be enrolled by October 1 following graduation from high school or completion of a GED
  • The child must complete at least 12 hours of credit each semester, not including summer semester
  • The child must get grades sufficient to reenroll
  • Child support will continue until graduation or the child reaches 21, whichever first occurs
  • To remain eligible for this support, the child “shall submit to each parent a transcript or similar official document provided by the institution of vocational or higher education which includes the courses the child is enrolled in and has completed for each term, the grades and credits received for each such course, and an official document from the institution listing the courses which the child is enrolled in for the upcoming term and the number of credits for each such course.”
  • I will quote the rest:

 

“When enrolled in at least twelve credit hours, if the child receives failing grades in half or more of his or her course load in any one semester, payment of child support may be terminated and shall not be eligible for reinstatement.  Upon request for notification of the child’s grades by the noncustodial parent, the child shall produce the required documents to the noncustodial parent within thirty days of receipt of grades from education institution.  If the child fails to produce the required documents, payment of child support may terminate without the accrual of any child support arrearage and shall not be eligible for reinstatement.”

 

Under current law, a parent cannot obtain access to a child’s college records without the child’s consent.  Therefore, the custodial parent—the one getting support—has no legal right to obtain the records which must be provided to the other parent to keep the child support going.  So it’s all up to the child.  But the child was not a party to the divorce case or any other kind of case where the obligation to pay child support was established, and, therefore, cannot be charged with notice of the child support orders.  As you read the statute quoted above, you may readily see that the statute does not require a parent to provide any particular kind of notification or by any particular means to the child.

 

In my opinion, this statute needs significant revision.  At a minimum, child support for a college student should not be terminated unless the parent has sent the child a notice of exactly what the statute states must be provided—completely and in detail.  The notice should state in detail exactly what the consequences of a failure to provide the documents will be.  Because of how lawyers are, the notice should be in a form prescribed by the statute.  (One less thing for the lawyers to argue about in court)  And the notice should go to the child by certified mail, return receipt required-not by email, text message or Facebook messaging.   The child should have at least 60 days to respond.  Why?  Well:  The United States gets that long to answer a lawsuit if you sue the United States, and a kid should be accorded the same rights and courtesies as his Country.   Finally, the statute should be revised to remove the references to “transcripts” and “official documents.”  I don’t think that we need to kill more trees.   PINs, login numbers, etc., sufficient to give the parent access online should be sufficient.

 

We are all presumed to know the law, and that maxim applies to children.  But it’s a maxim that originated with respect to our duties to the state, not to our dads and moms.  I can’t shoot someone and then plead that I didn’t know that killing people was illegal.  I can’t fail to pay my taxes and then plead that I didn’t know about taxes.  If ignorance of the law was a defense in those contexts, the social order would quickly fall apart.  But the social order will not be endangered if we presume that a kid doesn’t know the law about child support until s/he receives instruction on the subject.

 

In my opinion—and courts will disagree with me—this statute as it exists now is unconstitutional in violation of the 14th Amendment to the United States Constitution.   It charges a child with knowledge of a child support order in a case that s/he wasn’t a party to, can’t be made a party to, and can’t even make himself a party to under any circumstances.  It allows for termination based upon a notice that may say anything or nearly nothing and may be sent by email, text messaging or smoke signals.  In my opinion, this statute implicates what the United States Supreme Court calls a “fundamental right.”  The right involved is the right of support by a parent.  The United States Supreme Court has stated that a right to raise a child is a “fundamental right” that can’t be deprived without due process.  That is the law of the land.  If a parent has a right to raise a child (and a fetus has a right to be born), I think a child has a concomitant right to be raised, which should not be impinged without due process of law.  I think Missouri’s law as it stands violates a child’s due process rights.  Since I wouldn’t bet that a Missouri court will agree with me, I think the statute should be revised to create the right as one enjoyed by Missouri citizens—who happen to be children.