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Visitation Schedule in Joint Custody Cases is Easier to Modify Parents with joint custody now can modify their visitation schedule upon a showing that the modification would serve the best interests of the child.  Last month, the Missouri Supreme Court resolved a split that had occurred within the lower courts, where some judges had been requiring proof of a substantial change of circumstances before allowing a modification.

The new ruling makes it easier to modify a visitation schedule for parents who share joint physical custody.  As noted by the Supreme Court, proving that a modification would serve the child’s best interests is not as difficult of a burden as proving that a substantial change of circumstances has taken place.

The decision makes clear, however, that such a showing of “substantial” change of circumstances would be required where awards of custody – as opposed to visitation rights – are sought to be modified. 

The source of confusion among the lower courts can be traced to case law existing prior to the advent of joint custody.  Those cases required that a change in circumstances "substantially or materially" affect a child before the custody decree could be modified.  The modification sought in those cases almost always dealt with a more drastic change in custody -- a shift from sole custody of one parent to sole custody of another parent.

The concept of joint custody was not introduced by the general assembly until 1983.  As a result, Missouri statutes were amended to provide that the court may award sole custody to either parent or joint custody to both parents.  In addition, the distinction between physical custody and legal custody has been codified.  Today, joint physical custody and joint legal custody are the preference in dissolution actions.

The Supreme Court decision makes clear that the requirement that the change be substantial is no longer appropriate where simple shifts in parenting time are at issue.  Courts should not require a "substantial" change from the circumstances of the original judgment where the modification sought is simply a rearrangement in a joint physical custody schedule.  Accordingly, the Supreme Court advised that the language used in the judgment of custody should leave no doubt as to whether the awards are to be joint or sole custody. 

[Kimberly Russell n/k/a Kimberly Bichsel, Respondent, v. Mark Russell, Appellant, SC87917, 01/09/2007]