Supreme Court asked to decide visitation case

Date: 2004-05-12

Author: Donna Walter

A father who sexually abused his infant daughter over a period of 18 months has no right under Missouri law to visit the child, said the Missouri Court of Appeals, Eastern District, as it transferred the case to the state Supreme Court to answer the question of whether the law applies in modification proceedings.

The case involves the legal custody and visitation of two children - R.S., the daughter, and J.S., the son - who were each born in July 1990 in Peru and adopted in October 1990. During the family's four-month stay in Peru, the father, identified in the opinion as M.S., sexually abused his new daughter and then abused her at different times for about 18 months. In 1992, he confessed his actions to his clergyman, who referred him to a psychologist. The psychologist reported the abuse to the Division of Family Services. The father was then charged with and pleaded guilty to two counts of sodomy, which is a felony under Chapter 566; he was given a suspended imposition of sentence and five years of probation. In 1999, he successfully completed the sex offender program at Behavioral Science Institute and voluntarily sought additional counseling.

The mother, identified as M.A., filed for divorce after learning about the abuse; the divorce became final in February 1995. In the dissolution decree, the mother was given primary legal and physical custody, and the father was allowed supervised visitation of both children for four hours a week. The agreement was modified on June 7, 2001, because the mother and children had decided to move to New Jersey. That agreement allowed the father to have supervised visitation once each quarter for a period of between seven and 30 days; it also stated that the father's current wife, D.S., was "not to be eliminated" from the evaluation process as a supervisor of visitation.

The father filed a motion to modify on Dec. 6, 2001; the mother countered with a motion to dismiss her ex-husband's motion and to terminate his visitation in accordance with Section 452.400.1.

St. Louis County Circuit Judge Joseph A. Goeke III, after an evidentiary hearing, awarded both parents joint legal custody and ordered that unsupervised visits with the son be allowed. The judge further required supervised visitation with the daughter until she was told what her father had done to her, and he also approved D.S. as a supervisor. Goeke also ordered that both children be informed within 60 days "that Father's inappropriate contact with [daughter] was the reason that their visitation with Father has been supervised and that Father has gone through treatment and counseling for that behavior and that his treatment has been successfully completed and the Court has found that he is no longer a risk to sexually abuse them."

Goeke relied on Section 452.400.2, which governs modification proceedings; that statute states that courts "shall not restrict" visitation unless it finds visitation would "endanger" or "impair" the child's physical or emotional development. Section 452.400.2 further states that when a parent's visitation rights are restricted, or when a court orders supervised visitation due to abuse, "a showing of proof of treatment and rehabilitation shall be made to the court before unsupervised visitation may be ordered."

On appeal, the mother argued that Section 452.400.1 RSMo mandated the termination of the father's visitation rights.

The version of the law in effect when the couple's marriage was dissolved allowed the court to grant visitation in cases where a child had been the victim of domestic violence if the court could make certain factual findings to show the child would be protected from harm.

But in August 1995, six months after the couple divorced, the statute was amended to prohibit visitation to a noncustodial parent who had been found guilty of, or who pleaded guilty to, a felony violation of Chapter 566 - which deals with sexual offenses - when the child was the victim, or a violation of Section 568.020 - which deals with incest - when the child was the victim. Additional amendments were made in 1998 concerning Chapter 568 offenses.

Whether the amended law applies to the case at hand is the question that will be before the Supreme Court.

The mother argued that the Western District appellate court decided this issue in 2001 with its decision in Hoskins vs. Box. In that case, the father, who had pleaded guilty to felony child abuse of his youngest son, was precluded from visitation by the terms of the divorce decree. The father sought to modify visitation after the 1998 amendments had taken place, but the Western District dismissed his motion to modify on the grounds that the 1998 amendments prohibited the court from granting visitation.

"Hoskins holds that the ban on visitation contained in section 452.400.1 applies to modification proceedings," wrote Judge Kathianne Knaup Crane for the unanimous panel. "In this case mother had filed a motion to terminate visitation previously granted pursuant to section 452.400.1 and a motion to modify pursuant to section 452.400.2 seeking termination by application of section 452.400.1. If Hoskins is correct, section 452.400.1 RSMo (2000) applies in modification proceedings, whether the modification sought is to increase visitation rights or decrease visitation rights."

Because the daughter is the only one of his children the father abused, the father is not barred by Section 452.400.1 from visiting his son.

However, the appellate court determined that the trial judge's order of immediate unsupervised visitation wasn't supported by substantial evidence. Two expert witnesses testified the son should get counseling to prepare him for the news about the father's abuse of the daughter. The guardian ad litem said the father-son visitation should be supervised until the son was able to deal with the news. And the trial judge could not have determined what would be in the son's best interests until after he was told about the abuse, said the panel, remanding this issue back to the lower court for a re-evaluation.

The appellate court then held that substantial evidence does not support the award of joint legal custody. For joint legal custody to work, the parents must share beliefs concerning parenting, and they must be willing and able to communicate with each other. There was no evidence the parents in this case could work together raising their children.

Finally, the Court of Appeals determined that the lower court was wrong to approve D.S., the father's current wife, as a supervisor of visitation because there is no evidence of her training, capability, character or beliefs, or that she was even evaluated by the trial court as a supervisor.

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

In re the Marriage of M.A. and M.S. M.A., petitioner/appellant, vs. M.S., defendant/respondent; No. 82018; handed down May 11.


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