Custody dispute remanded for correct standard

The proper legal standard for a modification of a child custody decree depends on whether the party is seeking to modify the custody arrangement or the custody designation, the Southern District Court of Appeals ruled on August 29, reversing a denial of a father’s request to modify a custody arrangement.

Brandon Schiesswohl and Bobbi Spain are the parents of a minor child. In 2016, the parties agreed they should have joint legal and joint physical custody of their child.

As part of the child custody decree, the parents were ordered to comply with a parenting plan. The plan essentially provided that Schiesswohl would have custody over the child during the school year with Spain to have custody three weekends each month, and that during the summer, Spain would have custody of the child with Schiesswohl to have custody three weekends each month.

The plan also required each parent to “consult each other and agree prior to obtaining significant medical and dental treatment for [child].”

Schiesswohl later filed a motion to modify. In addition to modifying the parenting schedule, he sought to modify the decision-making process for the child’s medical treatment. He told the court the changes were warranted because the existing parenting schedule required too much driving and too many exchanges of the child and that the parties could not agree on medical treatment.

Since the original judgment, both parents had moved to new cities and the child had been diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD). While Schiesswohl was open to treating their child’s condition with medication, Spain was not.

Following a hearing, the trial court denied the motion to modify, finding there was no “substantial” change in circumstances to warrant modification.

Schiesswohl appealed.

Judge Mary W. Sheffield authored an opinion reversing the denial of Schiesswohl’s motion, joined by Judge Jack A.L. Goodman.

In Missouri, there are two standards that can apply to a modification of a child custody decree, the court explained: a statutory standard that requires a “change in circumstances” based on the plain language of section 452.410 and a caselaw standard that requires a “substantial” change in circumstances, pursuant to a 2007 Missouri Supreme Court opinion, Russell v. Russell.

If a party is seeking to modify a term to the custody arrangement — such as a time in the parenting time schedule — the plain language of section 452.410 controls and the change in circumstances need not be “substantial.”

Alternatively, a change from joint legal custody to sole legal custody, a modification of custody designation, requires a substantial change.

Schiesswohl sought two modifications. As for the modification of the parenting schedule, it “was simply a request to rearrange the joint physical custody schedule,” the court wrote. “It was not a request to change the custody designation. For that reason, the proper standard was ‘a change … in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child,’” pursuant to section 452.410.1.

The law was less clear with regard to the standard for Schiesswohl’s request to have final decision-making authority over the child’s healthcare.

Looking to case law, the court said a panel in the Eastern Division has held that an award of joint legal custody giving one parent final decision-making authority in the event the parents cannot agree is not a de facto award of sole legal custody; another has suggested that giving one parent final decision-making authority is not inconsistent with a “joint legal custody” designation.

“And we agree with those cases based on the language of the statute defining ‘[j]oint legal custody’ since the statute uses the phrase ‘unless allocated, apportioned, or decreed,’” the court said. “If those rights could not be ‘allocated, apportioned, or decreed’ to one parent, our general assembly would not have used that phrase in the statute.”

Under Schiesswohl’s proposed modification, the parents would continue to share joint legal custody, as well as the decision-making rights, responsibilities and authority relating to the health, education and welfare of their child.

“It would only change how disagreements between [Spain] and [Schiesswohl] would be resolved if they could not agree on Child’s medical treatment,” the court wrote. “Because [Schiesswohl] sought to change only a term of the joint legal custody arrangement and not the original custody designation (i.e., joint legal custody), the proper standard was a ‘change’ in circumstances rather than a ‘substantial’ change in circumstances. Here, the trial court applied a higher burden than [Schiesswohl] was required to meet under the statute.”

The court reversed and remanded.

Judge Don E. Burrell concurred in a separate opinion, questioning whether it should be necessary for a circuit court to have to determine whether a particular modification to a child custody decree requires a “change in circumstances” or a “substantial change in circumstances,” urging the Missouri Supreme Court to revisit Russell and its progeny.

Neither Joseph A. Robertson of Springfield, who represented Schiesswohl, nor Neosho attorney Gregory R. Bridges, who represented Spain, responded to a request for comment.

The case is Schiesswohl v. Spain, No. SD38173.