Paternity Suits

A paternity suit is a lawsuit, usually by the mother of a child, to establish the legal relationship between a child and his/her biological father under Missouri’s version of the Uniform Parentage Act.

There are three parts to a paternity action:

1. A judicial declaration of paternity and ordering father’s name to be added to the birth certificate, 
2. A child support order, 
3. A plan for custody and visitation referred to as a parenting plan. 

Evidence of paternity can be from various sources including

1. A DNA test, 
2. A signed Affidavit of Paternity at the hospital at the time of the birth, 
3. aEvidence that the child was presented as ones’ child, including bringing the child home to raise. 

The parenting plan for the child addresses whether custody will be sole custody or joint custody and provides a schedule for visits. The Missouri legislature has expressed a preference for joint custody and takes the position that a continuing relationship with both parents is the ideal for a child’s healthy development. The parenting plan will provide for decision making as to the child’s education, medical care and religious upbringing. Child support is determined based on a calculation that takes the parents’ income and expenses into account. One of the parent’s addresses is designate the child’s permanent address for residential and educational purposes.

The parenting plan becomes a permanent part of the final judgment, providing the legal structure of the family of the child in the absence of a marriage, as well as protection in the event of interference with custody.

Custody of Minor Children—What is “Best Interest?”

To make an initial custody decision, a Missouri court has the duty to examine eight various factors in order to make a best interest determination. Where the child wishes to reside is one of them, but not necessarily the determining factor. The court must also look at:

The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;

If one of the parents fails to participate in a cause of action, his or her ability to present a case is adversely affected. There are occasions when custody is determined in favor of the party who has filed, primarily due to the second party failing to file an answer and participate in the outcome. 

The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;

The Missouri legislature has expressed a clear preference for joint custody if possible. It is accepted as true that a child needs both a mother and a father for optimal maturation. However, if one parent is hampered by addictions, absence, abusive behaviors or illness, the other parent could be found to be a more able and willing parent. 

The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;

How does everybody interact and deal with one another? If there are significant issues, the court will consider those.

Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;

Action by a parent that interferes with the ability of the other parent to have a relationship with the child will adversely impact their custody. Examples are refusing to call the child to the phone, refusing to keep each other advised as to significant events, refusing to schedule parenting time with the other parent.

The child's adjustment to the child's home, school, and community;

If a child is having significant adjustment challenges in a particular home, school or community, a more nurturing environment might be indicated. Issues with step-parents, inappropriate discipline, cult membership, lack of educational opportunity, etc. will be considered. One parent being more financially able than another will not be determinative by itself.

The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence as defined in section 455.010 has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;

If a court finds there has been abuse but there is little alternative but to maintain custody with the abusive parent, special findings of fact must be made and written into the final judgment.

The intention of either parent to relocate the principal residence of the child; and

Once the case has been filed, it is against the law for a parent to unilaterally move the child out of the jurisdiction. All such moves will have to be approved by the court in order to be legal.

The wishes of a child as to the child's custodian. The fact that a parent sends his or her child or children to a home school, as defined in section 167.031, shall not be the sole factor that a court considers in determining custody of such child or children.

When children reach the teenage years, they often suddenly express a desire to switch households. Cases require careful analysis, as the Disney parent might seem attractive in the eyes of the minor child.

Once the court has looked at all these factors, the best interest of the child can be determined.

Custody of Minor Children—What is “Custody”?

"Custody" means joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof;

"Joint legal custody" means that 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;

"Joint physical custody" means an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents. Joint physical custody shall be shared by the parents in such a way as to assure the child of frequent, continuing and meaningful contact with both parents;

"Third-party custody" means a third party, such as a grandparent or guardian is designated as a legal and physical custodian.

The Uniform Child-Custody Jurisdiction and Enforcement Act

The Uniform Child-Custody Jurisdiction and Enforcement Act, aka the UCCJEA, is a law born out of necessity. Divorce is a trying and oft times complicated experience for anyone to go through. And today, the divorce rate is at an all time high. But what happens when there are children involved? In today's global society, we are a much more nomadic species than ever. Making it all the more difficult to divvy up custody rights if one of the parents decides to move out of state, or even out of the country. Which jurisdiction presides over the case? Child custody laws can vary from county to county within a single state. Which is why the UCCJEA has been so helpful in enforcing a singular protocol. The UCCJEA is merely a more specified and clarified version of its predecessor; UCCJA. As a result, conflicts have been greatly reduced nationwide in child custody cases. It is intended to reflect the Federal Parental Kidnapping Act (PKPA) which ensures interstate uniformity with regards to custody, and provides protection for victims of domestic violence who have relocated out of state for their own safety.

Locally, the state of Missouri adopted the act in August of 2009. Replacing the previous UCCJA as discussed above. Missouri was one of the last three states to employ the act. Since then, many have found their custody situation improved as have Parental Kidnapping issues have decreased.

A court being asked to exercise jurisdiction over a child will look for the following jurisdictional indicators:

• Child’s home state on the date of the commencement of the proceeding, 
• Child’s home state within six months prior to the commencement of the proceeding although the child is absent from this state, a parent or person acting as a parent continues to live in this state;
• The child and his parent have a significant connection with this state other than mere physical presence; and
• Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships.

In the event two states qualify and cases are filed in both, the Courts will confer with each other directly and make a decision as to jurisdiction.  A court which has decided custody previously will exercise continuing jurisdiction over the case.

To illustrate:

A custody order is put in place in Topeka, Kansas regarding a child who is 6 years old, has lived in Topeka since birth with his mother and attended day care and school there, and sees the pediatrician there.  His mother rents a home there and she grew up there too and attended high school there.   Shortly after the custody order is put in place, mother is offered a job in Columbia, Missouri.  She moves to Columbia to pursue the job and brings the child along with her.

Father, a resident of Topeka, not happy about the disruption to his ability to visit, files an action in Topeka, KS court to enforce his visitation 3 months later.  Under the UCJJEA, the Topeka court has jurisdiction.

However, if Father waits 7 months before he files in Topeka, KS to enforce his visitation things are different.  Mother first files in Columbia, MO to change the parenting plan and serves Father with summons to the Missouri Court.  Father’s attorney contests jurisdiction of the Missouri court based on the continuing jurisdiction of the Kansas court.  The two judges get on the phone to sort things out.  After they conference on the phone with each other, the Kansas Court transfers jurisdiction of the case to the Missouri court because the significant contacts and residence and passage of time indicate the Missouri court is now the court with jurisdiction of the case.