MO Court blocks convicted child molester's right to unsupervised visitation with his children

Date: 2004-11-12

Author: Erin Suess

A felon child molester received a setback in his bid to change his child custody with his ex-wife, as the Missouri Court of Appeals, Eastern District, overturned a lower court's decision to alter the custody and supervision arrangements.

The father and mother adopted two children, a boy and a girl, from Peru in 1990. The father molested the girl both in Peru and continually in the United States. The father had molested before as a teenager, similarly violating his then-3-year-old cousin.

The father confessed to his clergyman in 1992, who recommended the father see a psychiatrist. The psychiatrist turned the father into the Division of Family Services, and the father was charged and pleaded guilty to two counts of sodomy. The court gave him a suspended sentence, placed him on five years' probation and ordered mandatory counseling. The father received additional counseling on his own.

The mother divorced the father in 1995, with her gaining primary and legal custody of the two children. The court granted the father visitation of his son and daughter for four hours per week supervised by an approved DFS individual.

The court altered the arrangement in 1999 to allow father six hours a week of supervised visitation that DFS would no longer be a part of. Instead, the company through which the father received counseling, the Behavioral Science Institute, provided supervision.

The arrangement was modified again in June 2001 when the mother and two children moved to New Jersey. The father could have supervised visitation once each quarter lasting between seven days and 30 days. His present wife was "not to be eliminated" from the evaluation process as a supervisor.

Later that same year, the father motioned for another modification, and the mother countered with a motion to terminate his visitation rights. After dismissing the mother's motions, the trial court held that the counseling programs the father completed rehabilitated him. The court ordered both children be told about the abuse and the rehabilitation within 60 days.

Holding no risk to the son, the court allowed for unsupervised visits. Deciding the risk for more abuse of the daughter was low, the court ordered unsupervised visits once she was told about the abuse.

The trial court added that the mother's refusal to approve of supervisors, as well as one of the approved supervisors, interfered with the father's visitation. The court awarded joint physical and legal custody and approved the father's current wife as a supervisor along with an alternate supervisor.

On appeal, changes in the statute governing visitation, enacted in 1995 and 1998, dominated the arguments. The changes barred visitation in cases where a parent was guilty of sex crimes or incest of a minor child. A 2001 case, Hoskins vs. Box, fell directly on point, found the Eastern District. In that case, the court ruled that the ban on visitation contained in Section 452.400.1 applies to modification proceedings. As the cases were analogous, the Court of Appeals found visitation with the daughter inappropriate.

"The version of section 452.400.1 that was in effect when the motion to modify was filed prohibits the award of visitation to a non-custodial parent of the child who was the victim," wrote Judge Kathianne Knaup Crane. "This statute clearly precludes father's visitation of daughter since she was the victim of father's sodomy offense. However, section 452.400.1 does not clearly preclude visitation with son, since son was not the child who was abused."

The Eastern District, in deciding the appropriateness of custody with regard to the son, noted that the father never molested his son, so nothing precluded the father from visiting with him. Unsupervised visits, however, were another matter, one against which the mother protested.

Key in this situation, found the appeals court, was that evidence on record did not support unsupervised visits with the son. Two counselors and a guardian ad litem stressed the need for the son to receive counseling once the father told him about the abuse. Without ordering that counseling, the appellate court found the trial court erred in granting unsupervised visitation.

"In addition, it was impossible for the trial court to know, at the time it ordered unsupervised visitation, what son's best interests would be with respect to unsupervised visitation after he was told of the abuse," wrote Crane. "The trial court erred in ordering immediate elimination of supervised visitation without first requiring the parties to come back before the court for a reevaluation of the situation after son was told of the abuse."

From there Court of Appeals moved on to the issue of joint legal custody, which the mother contested. The court turned to the definition of "joint legal custody," laid out in Section 452.375.1(2): "the parents share the decision-making rights, responsibilities, and authority relating to the health, education, and welfare of the child, and, unless allocated, apportioned or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority."

Adding to that definition was the idea found in McCauley vs. Schenkel, which noted parents need to function as a parental unit in making decisions as to the children's best interest, and without that parental unit, joint custody becomes inappropriate.

The Eastern District then turned to the trial court record for evidence of a parent unit. In the record, the trial court noted that the mother "failed to confer" with the father on any major issues, including medical conditions.

"There was no evidence that father and mother have a commonality of beliefs concerning parental decisions, and a willingness, as well as an ability, to function as a unit in making those decisions," wrote Crane.

"The record in the trial court does not support the conclusion that mother and father can communicate, cooperate, and work together in the exercise of decision-making rights and responsibilities concerning their child," added Crane, overturning the trial court's order granting joint legal custody.

The final issue before the appellate court was the appropriateness of the decision to name the father's current wife as a supervisor. The mother maintained the record lacked evidence supporting the current wife's "training, capability, character, or beliefs." The evidence on record shows that the father stated his wife would take good care of the children and that the mother objected to the new wife supervising, but the trial court made no findings of its own.

"Because no pleadings were filed requesting that D.S. be appointed a supervisor of visitation, and no evidence was presented of her qualifications to supervise visitation, the order appointed her to be a supervisor is void," concluded Crane.

In total, the Court of Appeals reversed the denial of the motions to terminate visitation with respect to daughter, the award of joint legal custody, the elimination of supervised visitation with the son and the designation of the new wife as supervisor of the father's visitation.

This is the second time this case was before the Court of Appeals. In May, the court transferred the case to the Missouri Supreme Court.

Judges Glenn A. Norton and Mary K. Hoff concurred with Crane.

In re the marriage of M.A. and M.S. M.A., petitioner-appellant vs. M.S., defendant-respondent; ED82018; handed down Nov. 8.


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