Question: My 14-year-old son wants to move from Missouri to Arizona where I now live. His mother, my ex, agrees that it would be best since the two of them do not get along.
However, I also have a 7-year-old son with my ex who wants to stay with his mom.
What is the court’s general feeling about splitting the two kids up? If I am only to take the one son for now how will that affect my child support? My ex seems to believe I will still have to pay her for both of my children even if one of them is living with me.
Answer:
Even though you and your ex-wife agree that a split custodial arrangement is in your children’s best interests, it is very, very important for you to follow the order modification procedures in Missouri. This may include interstate change of domicile requirements in addition to custody modification requirements.
This is because informal custody agreements between parents are just that – common, but informal. Courts rarely, if ever, enforce them or modify their own orders to reflect them because they have an independent duty to ensure that the current order is in the child’s best interests. Depending on the procedures in your local courts and the temperament of your particular judge, this could range from merely placing a judicial stamp of approval on a written agreement between parents styled as a “amendment number X to divorce decree” to an evidentiary hearing during which one or both of the parents give testimony to explain why the agreement is in the child’s best interests.
In most states, the standard to modify the court’s order is “substantial change in circumstances” or “proper cause,” although your local courts and your particular judge may call it something else. The burden may range from a preponderance of the evidence to clear and convincing evidence or greater, depending on how established the children’s current home is and what percentage of custodial time each parent has. The touchstone of this standard is a change since the last order sufficient to modify the order to better serve your children’s best interests. The analysis is highly fact-intensive.
Split custodial arrangements are possible. In these arrangements, one child lives with one parent and the other child with the other parent. To approve them, the court will consider, inter alia, whether the children are close, how far the children will have to travel to go to school, see friends, be with each other and the other parent, and any other factor relevant to the children’s best interests. Parents who agree are a favorable factor, but only one factor to consider.
If approved, split custodial arrangements usually entail a support review, too. This is because one child will spend more physical time with one parent. If your court calculated support based on the number of overnights your children spend with each parent and/or income levels that are outdated, you should request a support review with your motion to modify custody. Beware, however, that you may end up paying more support if your income has increased and your ex-wife’s has decreased. An attorney in your area will be able to project your support. You might also find support calculators online with websites like DadsDivorce.com.
Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Missouri. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation, as most parties in divorce cases do. Cordell & Cordell has many attorneys licensed and located in Missouri.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.
