Galeener v. Black

PREWITT, Judge,

dissenting and concurring in dissent of BILLINGS, J.

I believe the record reflects that it is in the best interest of the child for him to be in the custody of his mother.

There are certain principles followed in considering a change of custody. When custody has once been adjudicated, it is presumed that the custodian remains suitable and the burden of proving a change of circumstances sufficient to call for a change of custody is on the party seeking the change. In re Marriage of Britton, 574 S.W.2d 475, 476 (Mo.App.1978). Custody should be transferred only where the change of circumstances and conditions are such that the welfare of the child requires it. Id. The change in circumstances must be such as to give definite promise that the custody change will substantially benefit the child. Schmidt v. Schmidt, 591 S.W.2d 260, 262 (Mo.App.1979). That children have grown older in and of itself is not a sufficient change of conditions to warrant a change of custody. Engler v. Engler, 455 S.W.2d 36, 41 (Mo.App.1970).

If the child involved is of sufficient age to form and express an intelligent preference as to custody, he should be permitted to do so, and the court should consider that preference along with the other facts and circumstances before it; but that preference should be followed only if the welfare and interest of the child, as determined by all the evidence, are consistent with that preference. Kanady v. Kanady, 527 S.W.2d 704, 707 (Mo.App.1975). The modification of a custody order should not turn upon the temporary whims or desires of a child. J. v. E., 417 S.W.2d 199, 204 (Mo.App.1967).

The desire of an eleven year old to live with a parent is entitled to some weight, but is not decisive. Schmidt v. Schmidt, supra, 591 S.W.2d at 263. The undisputed fact that the child wants to live with a certain parent is not a sufficient basis for the award of custody to that parent. Engler v. Engler, supra, 455 S.W.2d at 41.

A change in custody should not be ordered just because a parent’s visitation rights will be infringed. Hahn v. Hahn, 569 S.W.2d 775, 777 (Mo.App.1978). In affirming a judgment of the trial court granting a former wife permission to remove a minor child to another state, the western district of this court stated in In re Marriage of Bard, 603 S.W.2d 108 (Mo.App. W.D. 1980):

“Jurisdictional problems and visitation privileges of a noncustodial parent are not insuperable obstacles when removal of a minor child to another state is at issue, [citing cases] In our highly mobile society it would be unrealistic to inflexibly confine a custodial parent to a fixed geographical area if removal to another jurisdiction was consistent with the best interests of the minor child.”

I agree that determination of factual issues rests in the trial court, and due deference is given to its findings. However, in this matter there was little, if any, real conflict in the evidence.

In considering the wishes of the child, it is important to ascertain and evaluate the basis for these wishes in order to place this element in its proper perspective in deciding what is in the best interest of the child. In re Marriage of Campbell, 599 S.W.2d 256, 258 (Mo.App.1980). A preference resulting from attention or influence can even provide a reason for denying custody to the parent displaying the attention or exerting the influence. Id. 599 S.W.2d at 259.

*252It is unrealistic to believe that the father did not intentionally and systematically influence the boy’s decision. At first the child was excited about his mother’s remarriage and was looking forward to moving to California but then changed his mind. That change was at least in part engineered by the father’s improper actions. While being interviewed by the judge, the child stated:

“Well, you know, my dad and me, we got to talking about the schools in California. He said that in some areas the schools are not good and kids come to school with knives and guns, but-”

The transcript also reveals the following while the child was being questioned by appellant’s attorney:

“Q. You’re kind of-you said you felt you were worried about getting into fights out there in the California school?
A. Well, I said I was a little worried about maybe, you know, getting in a fight, since I didn’t know and didn’t want to know how.
Q. Did anybody tell you that the kids out there in school fight?
A. Do you mean besides the news?
Q. Besides the news, yeah.
A. Well, Eric and dad and a couple of other people.”

Previous to the boy’s testimony, the father was asked if he “told Alan that the school students in California carry knives and guns”. He responded, “Not that I recall”. He denied that he told Alan that the kids would mistreat him or beat him, and said “ . . . there’s been lots of things said and discussed, not only between Alan and myself, but dozens of people that we’ve met”. It is totally unbelievable to me that the father could fail to recall whether they discussed students in California taking knives and guns to school or that “dozens of people” would discuss potential mistreatment in California with an eleven year old child who was contemplating living there. The father also promised the child a motorcycle and other prizes if he was allowed to stay in Missouri.

Child custody cases are difficult at every stage of the judicial process, and I am satisfied that the trial judge, as he always does, conscientiously and ably sought to do what was in the best interest of the child. However, in this instance I do not agree with that determination. Based on the principles that we follow in determining a child’s best interests, I believe that the evidence was insufficient to justify a change in the custody. Moving to California is not sufficient alone, and the improperly influenced preference of the child is not entitled to sufficient weight to combine with the moving to make a sufficient change of conditions.

I concur in the dissent of Judge Billings and the proposed disposition set forth there.