Section 452.413

Title XXX DOMESTIC RELATIONS

Chapter 452

Effective - 28 Aug 2013   

  *452.413.  Military deployment, child custody and visitation, effect of — nondeploying parent requirements — procedure — failure to comply, effect of. — 1.  As used in this section, the following terms shall mean:

  (1)  "Deploying parent", a parent of a child less than eighteen years of age whose parental rights have not been terminated by a court of competent jurisdiction or a guardian of a child less than eighteen years of age who is deployed or who has received written orders to deploy with the United States Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or any other reserve component thereof;

  (2)  "Deployment", military service in compliance with military orders received by a member of the United States Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or any other reserve component thereof to report for combat operations, contingency operations, peacekeeping operations, temporary duty (TDY), a remote tour of duty, or other service for which the deploying parent is required to report unaccompanied by any family member.  Military service includes a period during which a military parent remains subject to deployment orders and remains deployed on account of sickness, wounds, leave, or other lawful cause;

  (3)  "Military parent", a parent of a child less than eighteen years of age whose parental rights have not been terminated by a court of competent jurisdiction or a guardian of a child less than eighteen years of age who is a service member of the United States Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or any other reserve component thereof;

  (4)  "Nondeploying parent", a parent or guardian not subject to deployment.

  2.  If a military parent is required to be separated from a child due to deployment, a court shall not enter a final order modifying the terms establishing custody or visitation contained in an existing order until ninety days after the deployment ends unless there is a written agreement by both parties.

  3.  In accordance with section 452.412, deployment or the potential for future deployment shall not be the sole factor supporting a change in circumstances or grounds sufficient to support a permanent modification of the custody or visitation terms established in an existing order.

  4.  (1)  An existing order establishing the terms of custody or visitation in place at the time a military parent is deployed may be temporarily modified to make reasonable accommodation for the parties due to the deployment.

  (2)  A temporary modification order issued under this section shall provide that the deploying parent shall have custody of the child or reasonable visitation, whichever is applicable under the original order, during a period of leave granted to the deploying parent, unless it is not in the best interest of the child.

  (3)  Any court order modifying a previously ordered custody or visitation due to deployment shall specify that the deployment is the basis for the order and shall be entered by the court as a temporary order.

  (4)  Any such temporary custody or visitation order shall require the nondeploying parent to provide the court and the deploying parent with written notice of the nondeploying parent's address and telephone number, and update such information within seven days of any change.  However, if a valid order of protection under chapter 455 from this or another jurisdiction is in effect that requires that the address or contact information of the parent who is not deployed be kept confidential, the notification shall be made to the court only, and a copy of the order shall be included in the notification.  Nothing in this subdivision shall be construed to eliminate the requirements under section 452.377.

  (5)  Upon motion of a deploying parent, with reasonable advance notice and for good cause shown, the court shall hold an expedited hearing in any custody or visitation matters instituted under this section when the military duties of the deploying parent have a material effect on his or her ability or anticipated ability to appear in person at a regularly scheduled hearing.

  5.  (1)  A temporary modification of such an order automatically ends no later than thirty days after the return of the deploying parent and the original terms of the custody or visitation order in place at the time of deployment are automatically reinstated.

  (2)  Nothing in this section shall limit the power of the court to conduct an expedited or emergency hearing regarding custody or visitation upon return of the deploying parent, and the court shall do so within ten days of the filing of a motion alleging an immediate danger or irreparable harm to the child.

  (3)  The nondeploying parent shall bear the burden of showing that reentry of the custody or visitation order in effect before the deployment is no longer in the child's best interests.  The court shall set any nonemergency motion by the nondeploying parent for hearing within thirty days of the filing of the motion.

  6.  (1)  Upon motion of the deploying parent or upon motion of a family member of the deploying parent with his or her consent, the court may delegate his or her visitation rights, or a portion of such rights, to a family member with a close and substantial relationship to the minor child or children for the duration of the deployment if it is in the best interest of the child.

  (2)  Such delegated visitation time or access does not create an entitlement or standing to assert separate rights to parent time or access for any person other than a parent, and shall terminate by operation of law upon the end of the deployment, as set forth in this section.

  (3)  Such delegated visitation time shall not exceed the visitation time granted to the deploying parent under the existing order; except that, the court may take into consideration the travel time necessary to transport the child for such delegated visitation time.

  (4)  In addition, there is a rebuttable presumption that a deployed parent's visitation rights shall not be delegated to a family member who has a history of perpetrating domestic violence as defined under section 455.010 against another family or household member, or delegated to a family member with an individual in the family member's household who has a history of perpetrating domestic violence against another family or household member.

  (5)  The person or persons to whom delegated visitation time has been granted shall have full legal standing to enforce such rights.

  7.  Upon motion of a deploying parent and upon reasonable advance notice and for good cause shown, the court shall permit such parent to present testimony and evidence by affidavit or electronic means in support, custody, and visitation matters instituted under this section when the military duties of such parent have a material effect on his or her ability to appear in person at a regularly scheduled hearing.  Electronic means includes communication by telephone, video conference, or the internet.

  8.  Any order entered under this section shall require that the nondeploying parent:

  (1)  Make the child or children reasonably available to the deploying parent when the deploying parent has leave;

  (2)  Facilitate opportunities for telephonic and electronic mail contact between the deploying parent and the child or children during deployment; and

  (3)  Receive timely information regarding the deploying parent's leave schedule.

  9.  (1)  If there is no existing order establishing the terms of custody and visitation and it appears that deployment is imminent, upon the filing of initial pleadings and motion by either parent, the court shall expedite a hearing to establish temporary custody or visitation to ensure the deploying parent has access to the child, to ensure disclosure of information, to grant other rights and duties set forth in this section, and to provide other appropriate relief.

  (2)  Any initial pleading filed to establish custody or visitation for a child of a deploying parent shall be so identified at the time of filing by stating in the text of the pleading the specific facts related to deployment.

  10.  (1)  Since military necessity may preclude court adjudication before deployment, the parties shall cooperate with each other in an effort to reach a mutually agreeable resolution of custody, visitation, and child support.

  (2)  A deploying parent shall provide a copy of his or her orders to the nondeploying parent promptly and without delay prior to deployment.  Notification shall be made within ten days of receipt of deployment orders.  If less than ten days' notice is received by the deploying parent, notice shall be given immediately upon receipt of military orders.  If all or part of the orders are classified or restricted as to release, the deploying parent shall provide, under the terms of this subdivision, all such nonclassified or nonrestricted information to the nondeploying parent.

  11.  In an action brought under this chapter, whenever the court declines to grant or extend a stay of proceedings under the Servicemembers Civil Relief Act, 50 U.S.C. Appendix Sections 521-522, and decides to proceed in the absence of the deployed parent, the court shall appoint a guardian ad litem to represent the minor child's interests.

  12.  Service of process on a nondeploying parent whose whereabouts are unknown may be accomplished in accordance with the provisions of section 506.160.

  13.  In determining whether a parent has failed to exercise visitation rights, the court shall not count any time periods during which the parent did not exercise visitation due to the material effect of such parent's military duties on visitation time.

  14.  Once an order for custody has been entered in Missouri, any absence of a child from this state during deployment shall be denominated a temporary absence for the purposes of application of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  For the duration of the deployment, Missouri shall retain exclusive jurisdiction under the UCCJEA and deployment shall not be used as a basis to assert inconvenience of the forum under the UCCJEA.

  15.  In making determinations under this section, the court may award attorney's fees and costs based on the court's consideration of:

  (1)  The failure of either party to reasonably accommodate the other party in custody or visitation matters related to a military parent's service;

  (2)  Unreasonable delay caused by either party in resolving custody or visitation related to a military parent's service;

  (3)  Failure of either party to timely provide military orders, income, earnings, or payment information, housing or education information, or physical location of the child to the other party; and

  (4)  Other factors as the court may consider appropriate and as may be required by law.

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(L. 2013 H.B. 148 merged with S.B. 106 merged with S.B. 110 merged with S.B. 117)

Effective 8-28-13 (H.B. 148); 8-28-13 (S.B. 106); 8-28-13 (S.B. 117); 10-11-13 (S.B. 110)

*S.B. 110 effective 10-11-13, see § 21.250.  S.B. 110 was vetoed July 3, 2013.  The veto was overridden on September 11, 2013.