CJane said:
Fact is, (according to the MO bar assn website) that "change in circumstances" is ANY change since the current order was put into effect when it can be proven that the children's best interests will be served by modification.
Missouri Revised Statutes
Chapter 452 Dissolution of Marriage, Divorce, Alimony and Separate Maintenance
Section 452.410
August 28, 2005
Custody, decree, modification of, when.
452.410. 1. Except as provided in subsection 2 of this section, the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450
and 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. Notwithstanding any other provision of this section or sections 452.375 and 452.400, any custody order entered by any court in this state or any other state prior to August 13, 1984, may, subject to jurisdictional requirements, be modified to allow for joint custody in accordance with section 452.375, without any further showing.
[This is the burden of proof you have to meet based on the time of your filing, not what you did after, unless there was some tangible neglect or abuse, CP talking re moving, remarriage, is not a change in circumstances. If you were actually denied visitation, then that MIGHT be considered a change in circumstances but you never claimed he actually denied you visitation, in fact, you claimed you had the children, more. IF your stipulated parenting plan was based on a shared model and you living in the same community and CP moved, then you would have grounds for a modification, however that burden of proof was not met. IF you (NCP) moved out of the community, CP had the right to file for a modification because you could no longer fulfill your obligations as agreed in the stipulated shared parenting agreement and/or you signed the agreement in bad faith and with "unclean hands". In other words, the judge would not have signed the original stipulated agreement if it were known that you could not fulfil your obligation under the agreement because you were planning on moving, and time has shown that your move was not necessiary. So you did not have to disrupt the childrens lives as you did.]
2. If either parent files a motion to modify an award of joint legal custody or joint physical custody, each party shall be entitled to a change of judge as provided by supreme court rule. [You did not have either joint legal or physical custody so you stay with the same judge]
(L. 1973 H.B. 315 § 23, A.L. 1978 H.B. 914, A.L. 1984 H.B. 1513, A.L. 1990 H.B. 1370, et al.)
CROSS REFERENCE: Court may transfer custody if custodial parent,
without good cause, fails to honor visitation order, RSMo 452.340 [This is why I asked if he actually denied you visitation, because that MIGHT be your one prong of the burden of proof that MIGHT have been met and in that case he is still allowed to claim "GOOD CAUSE".]
(1976) In motion to modify child custody decree under this section, it is not necessary to wait for manifestations of harmful consequences before action is taken. L.H.Y. v. J.M.Y. (A.), 535 S.W.2d 304.
[In other words, you do not have to wait for children to be abused or be moved to file for modification, but you must still have grounds, such as, CP sends a CRRR letter informing you that he is moving the children out of state so your shared parenting plan could not work, not just discussing a potential move.]
Also, I was advised by more than one attorney that since our original agreement was reached outside trial, a change of circumstances was not required for modification. That may not be true in all states. I know that it's true in Kansas, and I've been told it's true in Missouri.
(1978) Court may not modify original dissolution decree vesting custody on stipulation of partner, but must conduct hearing and make findings required in best interests of child. Fleming v. Fleming (A.), 562 S.W.2d 168. [ This means that the court must hold a hearing to modify an order IF it was originally based on stipulation, not that a significant change is not required, that is still the burden of proof.]
Missouri Revised Statutes
Chapter 454
Enforcement of Support Law
Section 454.500
August 28, 2005
4.
The circuit court may, upon such terms as may be just, relieve a parent from an administrative order entered against that parent because of mistake, inadvertence, surprise, or excusable neglect.
5. No order entered pursuant to section 454.476 shall be modifiable pursuant to this section, except that an order entered pursuant to section 454.476 shall be amended by the director to conform with any modification made by the court that entered the court order upon which the director based his or her order.
By now, I know that not only is Missouri law not your forte, but you also cannot see past your bias as it relates to me. Even with everything neatly outlined in my original post to this thread, you couldn't get it right.
If you will notice Ldij is very biased and in general refuses a challenge to cite the law, but she is telling you what you want to hear, which in the end is a great disservice to you. I didn't have to take the time or trouble to respond to you. Weenor also told you the same things. The use of language in law is specific, you , like Ldij, tend to attribute absolute meanings to intentionally vague words which allow attorneys to argue their cases. Where I said SOME you interpreted that to be EVERY. Your ex is allowed to seek to have the case dismissed/vacated based on the above grounds and nothing thus far suggests that you have met the burden of proof and that is somehting the judge may have inadvertly missed in their considerations because you kept bringing in some many issues unrelated to your original petition. Also your calculations on parenting time omitted some of Dad's time because you simply omitted his time on your exchange days after your dropoff at school, so you can expect that to be pointed out as an error.
However, I have to respond to this, because I find the fact that you posted it appalling.
Just who is biased here? YOu don't want to know the actual MRS that affect your case and would prefer Ldij's uncited responses just because they tell you what you want to hear. This is not a support group.
Where, in the statutes of mine or any other state does it say that the person with legal custody has ANY right to withhold court ordered visitation? How on earth does his standing as 'legal custodian' give any merit at all to him thinking he has ANY say in visitation? I really do hope that you're not suggesting that a parent with sole legal custody can decide when the other parent has visitation when that visitation (or in the case of my order 'custodial period') is clearly outlined in a court order.
What was the exact wording of your stipulated agreement, was the word "reasonable" in there anywhere? With "sole" legal custody, the decision making is left to the CP and MAY include issues re visitation. In reality, your EX has been generous considering you were in contempt of the order and could have but didn't deny you visitation.
