Moore v. Moore

SMART, Judge,

concurring.

It is the desire of the courts to see divorced parents cooperating with one anoth*657er concerning visitation whenever it is in the child’s best interest. I write separately in order to illustrate the conflict presented by that desire when a custodial parent takes a restrictive approach to visitation, and yet is in compliance with the decree. Although Carol Moore has complied with the provisions of the decree related to visitation, she believes it is best for Kevin’s life to revolve primarily around his relationship with his mother as custodial parent. She believes a child should have “one home that he reports to, sleeps at, and has his daily routine” during the school year.

Michael Moore desires to spend more time with his son. Because Mr. Moore is employed in the construction industry, he has a substantial number of days off work due to weather or other factors. He would like to spend some of those days in the summer with Kevin. He has rarely been allowed the opportunity. Mr. Moore is also available to spend time with Kevin each day between the time he gets home from work and the time Carol Moore arrives home from work. Instead, she has arranged for Kevin to attend a school-sponsored day care program (“Adventure Club”) after school until she can pick him up after her work. Kevin does not like Adventure Club and would rather go to his father’s house after school. Mr. Moore has been allowed visitation with Kevin only a few times on a week night during the school year, although he has asked repeatedly for such visitation. He has never been allowed to have Kevin overnight on a school night, even though both homes are relatively close to the school. Prior to Mr. Moore’s filing of the motion to modify, he was allowed to take Kevin to baseball practice. Since that time, he has been denied all visitation outside of the times specified in the decree. Michael Moore has been denied visitation even at times when it would have been to the convenience of both parties to allow extra visitation, such as days he is off work in the summer and Carol Moore has to work. Carol Moore prefers, even on those occasions, to have Kevin stay with her grandmother or mother rather than with Mr. Moore.

There is no complaint that there is something negative about Michael Moore — that he is a bad influence or that he behaves inappropriately with Kevin. The record reflects that Michael Moore is a good father, genuinely interested in a meaningful relationship with his son. Michael Moore has a stable home life. His wife, Renna Moore, works outside the home only part-time and is available in the home every afternoon after school.

Kevin desires to spend 50 percent of his time with each parent. The experts who testified in the case for both parties indicated that it is best for Kevin to get more time with his father. Carol Moore believes that “50/50 is not the way to go.” Everyone except Carol Moore agrees that Kevin’s best interests are served by an arrangement that would allow him to spend more time with his father. Carol Moore’s preference for keeping Kevin’s life strongly anchored to her home is the only obstacle to an arrangement that would allow more visitation. Yet it is not denied that Carol Moore has complied with the required visitation in an exemplary fashion and is a very good mother to Kevin.1

One can understand the trial court’s finding that “the father has become the more likely of the two parents to allow the child frequent and meaningful contact with the other parent.” The trial court, very likely, is correct. The question before us, however, is whether that finding is sufficient to support a modification of the primary physical custody of the child when the evidence shows that the custodial parent is a good parent, has complied with the decree, provides a home in which the child is doing well, has followed the advice of her attorney 2, and would comply with an expanded *658visitation schedule ordered by the court. Is this a “change of circumstances” so “substantial and continuing” as to require that the original dissolution decree be modified as to custody?

I concur with the principal opinion that Mr. Moore has not shown a sufficient change of circumstances. Since Carol Moore has complied with the previous decree, there is no reason to conclude she would not comply with an expanded visitation schedule. If, after expanded visitation is ordered, Carol Moore does not comply with what the court has ordered, her noncompliance may be a change of circumstances regarding the child or the custodian which is “substantial and continuing.”

As the principal opinion notes, the fact that the child is older than at the time of the original decree is not, in and of itself, a sufficient change of circumstances to support modification of physical custody. In re Marriage of Thompson, 682 S.W.2d 849 (Mo.App.1984). The remarriage of the noncustodial parent, also mentioned by the trial court, is not enough in and of itself to support a finding of change of circumstances. Korn v. Korn, 584 S.W.2d 179 (Mo.App.1979); Betterton v. Betterton, 752 S.W.2d 417, 419 (Mo.App.1988). The fact that the child needs more time with his father is not, in and of itself, a sufficient change of circumstances to support the modification of custody since the provisions related to visitation may be modified to accomplish this objective. If the provisions for visitation may be modified, then a change of physical custody is not “necessary to serve the best interests of the child.” (Emphasis added). § 452.410.

I trust that our decision in this case will not encourage an impression that custodial parents should limit visitation to the minimum. When the non-custodial parent is a committed parent and a very positive influence on the child, custodial parents will do well to encourage visitation beyond minimum requirements. When they do not do so, they put before a trial court the temptation to change custodial parents so that visitation schedules can remain flexible and cooperative. Courts, of course, would rather avoid the necessity that visitation rights be spelled out and formulated to a high degree. When parents do cooperate flexibly with one another, they not only reduce the need for attorneys, but they also provide a valuable example to their children. I understand the trial court’s desire to see some flexibility in visitation in this case. I concur, however, with the proposition that the law requires that Carol Moore first be given an opportunity to comply with modified visitation arrangements which would provide Michael Moore more visitation with his son.

I concur with the decision to reverse that portion of the trial court’s judgment making Mr. Moore Kevin’s primary physical custodian.

. This case does not involve a decree that required visitation "at other reasonable times.” It simply requires visitation on the specified weekends, holidays and summer vacation.

. Ms. Moore has allowed Mr. Moore absolutely no visitation except what was provided by the decree since the date Mr. Moore filed his motion to modify. She has restricted the visitation because her attorney advised her that adhering strictly to the decree was the "safest” course of action.