Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)
314.727.4880

Threatening To Withhold The Children Can Tilt The Balance in a Custody Battle

“Loose lips sink ships”. I was reminded of that adage as I read the Appeals Court decision in the case of Richards v. Richards, where Amy Jane Richards challenged the divorce ruling that awarded Michael George Richards joint physical custody and sole legal custody of their 2 children.

 

Mrs. Richards argued that her husband’s domestic abuse, as alleged by her, would preclude such a custody arrangement as being in the best interests of the children. According to the appellate court record, the wife contended that her husband once threatened physical harm by raising his hand to strike her, although he never did hit her. On other occasions, according to her, he yelled at her during one of the children’s parties; accused her of infidelity in front of the children; argued with her parents in front of the eldest child, yelled at the director of the children’s learning center; had an “angry” conversation with a member of their church; and at various times, kicked two different doors in the home as well as the family’s dishwashing machine. (In fairness to Mr. Richards, I do not have a transcript of the original trial and no way of knowing if he contested these allegations, although the appellate court notes that he did deny raising his hand to strike her.)

 

Mrs. Richards’ appeal was based on a Missouri law that requires that the court determine custody “in accordance with the best interests of the child” and lists 8 specific factors that must be considered including: “The mental and physical health of all individuals involved, including any history of abuse of any individual involved. If the court finds that a pattern of domestic violence 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.”

 

Mrs. Richards contended that her husband’s behavior constituted a pattern of abuse and that the Family Court erred in awarding Mr. Richards a substantial amount of time with the children and also for not issuing written findings of fact and conclusions of law when doing so.

 

Obviously, the trial court disagreed and the Court of Appeals has now affirmed that decision. Both courts concluded that the dad’s alleged behavior did not constitute a history of abuse or a pattern of domestic violence under Missouri statutes, which focus on acts, attempts or threats of physical violence. According to the appellate court, Mr. Richards was never accused of being physically violent with his children or Mrs. Richards.

 

Even so, why did the trial court, with the appellate court’s blessing, award dad the majority of the time?

 

The answer lays in an admission that Mrs. Richards likely made, but probably wishes now she never had. The trial court found that Mrs. Richards was likely to keep their children from their dad, although Mr. Richards was not likely to restrain contact with their mom. This finding is directly on point with one of the other 8 factors courts must consider. Namely, in awarding custody, the court must consider “which parent is more likely to allow the children frequent, continuing and meaningful contact with the other parent”.

 

Without access to the original record, I can’t know what Mrs. Richards said or why, or even if she really meant it when she said it. However, I see situations like this all too frequently. Divorcing parents can so detest each other that they look for ways to “punish” the other, including threats to withhold the children.

 

Which of us hasn’t said something in the heat of an argument that we later regret? Amazingly, most children continue to love both parents despite their worst moments, and need both parents in their lives. The courts, by law, do all they can to insure that happens. Sometimes, though, our own words disqualify us from participating fully.