Unfortunately, it is not always the case that after a judgment of dissolution (divorce), legal separation, or paternity the matter remains fully resolved. Changes in circumstances can (and often do) occur regarding a parent/guardian’s financial resources –or regarding the parties generally– thus necessitating a motion to modify child support and/or child custody. Worse yet, what happens when a parent or third party does not comply with the Court’s order? What happens if the non-compliance relates to custody?
When a party does not comply with a court’s custody order, the non-violating party generally has two options: (1) file for contempt of court or (2) file a family access motion. The basis for a family access motion is enshrined in Section 452.400.3, RSMo:
The court shall mandate compliance with its order by all parties to the action, including parents, children and third parties. In the event of noncompliance, the aggrieved person may file a verified motion for contempt. If custody, visitation or third-party custody is denied or interfered with by a parent or third party without good cause, the aggrieved person may file a family access motion with the court stating the specific facts which constitute a violation of the judgment of dissolution, legal separation or judgment of paternity.
The court conducts a hearing on the family access motion to give the parties an opportunity to present their cases. If it determines that the custody order has been breached without good cause, then the Court can order a number of remedies, including without limitation: (1) a compensatory period of visitation, custody or third-party custody at a time convenient for the aggrieved party not less than the period of time denied; (2) assessment of a fine of up to five hundred dollars against the violator payable to the aggrieved party; and/or (3) requiring the violator to post bond or security to ensure future compliance with the court’s access orders.
While seemingly simple on its face, family access motions can come with nuance. For instance, the parent allegedly in violation usually argues good cause if the custody order has been breached. Good cause is “a cause or reason sufficient in law: one that is based on equity or justice or that would motivate a reasonable [person] under all circumstances.” Morgan v. Gaeth, 273 S.W.3d 55 (Mo. Ct. App. 2008) (citing State v. Davis, 469 S.W.2d 1, 5 (Mo. 1971). Given this broad definition, a creative, charismatic defense/prosecution can often tilt the scales one way or the other.
Contact us with questions relating to family access motions.