Revisiting Visitation Rights
For juridical delicacy, arguably few matters match child custody, and
just last year, Missouri’s lawmakers acted to clarify and refine
procedures involving that hot-button topic by passing House Bill No.
1550, generally known as just HB 1550.
One problem. As in most legislation, legalese shrouds the nuances and niceties of HB 1550.
Happily,
two local experts on legal language express guarded optimism about HB
1550, which Missouri’s 98th General Assembly passed last spring. Former
Gov. Jeremiah “Jay” Nixon subsequently signed it into law, and it went
into effect this past August.
The first such expert, Dr. Christine
E. Rollins, serves as a professor in the Saint Louis University School
of Law and directs the Legal Research and Writing Program there.
Rollins
first provides background on custody and visitation in general,
regarding what legal professionals refer to as “the best interests of
the child standard.”
“When I teach class, I tell my students that
the best interests of the child standard is like stew,” Rollins says
cheerily. “Your stew, your mom’s stew, my stew might all look different.
You might put barley in it. I might put potatoes. But when you look at
the pot, you say, ‘It’s stew.’
“Because whatever is pertinent,
whatever is meaningful to that particular child or children, husband,
wife, father, mother, in any single case, is going to be taken into
account by the court. The guidelines listed in the laws in Missouri are
categories of information that a court should, could, may, take into
account, but they are not an exclusive or inclusive absolute list of
things that the court should take into account.”
That said, at least one nonprofit has been lobbying for a better ingredients list on Rollins’ figurative stew.
The
National Parents Organization – a charitable and educational 501(c)(3)
entity focused on “promoting shared parenting, where both parents have
equal standing raising children after a separation or divorce” to foster
such children’s emotional, mental and physical health, according to its
website – has been pushing aggressively for shared-parenting
refinements like those enacted by HB 1550.
Last May, for instance,
that nonprofit ran an op-ed piece in the Columbia Daily Tribune that
scathingly denounced “Missouri’s broken family court system.”
Ironically
in light of that denunciation, Rollins’ legal stew has long included an
ingredient of potential value to dyspeptic parents, notes the second
local expert on legal language, Dr. Joseph A. Cernik.
Cernik, a
professor of political science and public administration at Lindenwood
University in St. Charles, not only chairs the Department of Public
Affairs and Administration there but also edits the Missouri Policy
Journal, a semiannual publication “focused on issues relevant to
Missouri policymakers as well as the public interested with the
complexities associated with policymaking,” according to its website.
Specifically, Cernik cites Missouri’s
Motion for Family Access Order.
“When
you go through the existing law information contrasting it with HB
1550, I believe the key difference is these words in the law: ‘A family
access motion does not require the assistance of legal counsel to
prepare and file,’” he says.
“This a slight difference. The law,
prior to HB 1550, said an attorney can be involved – not ‘required’ or
‘needed.’ Probably there have been parents who felt that, in the past,
they had to use an attorney to help them get access to their child or
children, and financially, they could not afford to do that. Here, it’s
clear no attorney assistance is needed.
“Now, what I’m always
wondering about is, just because this tends to help those who cannot
afford an attorney, whether this slight change will be publicized well
enough to actually make a difference.
“My guess is that any real
impact would have to come in a court case where an aggrieved party says
they did not know about this, and they thought they needed an attorney
to gain access to their child or children. In other words, the
competency of one’s divorce attorney can be challenged.”
Regarding
the Motion for Family Access Order, Cernik adds: “Court rules allow a
lawyer to help a party with certain specific tasks without handling the
entire case for a party. This is called limited scope representation. A
lawyer providing limited representation will usually charge a fixed fee
or charge by the hour.
“So, a small change, but one that might
help a few parents who in the past have felt deterred from doing
anything because they, automatically, assumed they were going to pay
attorney fees.”
Beyond foregrounding information in HB 1550 that
might not have been emphasized as prominently in the legal content the
new bill replaces, Rollins expands somewhat on other nuances of that
piece of legislation, especially with regard to accountability.
“Some
of the language change in the bill talks more specifically about things
that should not exclude a parent from having access to their child,”
she says. “The underlying standard that Missouri law uses is that a
child should have meaningful, open, ongoing, consistent – there’s a lot
of adjectives used – contact with both parents. Unless the court finds
that a reason will keep a parent and child apart.
“We start with
that joint-access concept. And part of the law says if you’re going to
restrict it, the trial court needs to tell the parties why they are
restricting access. So part of this is very procedural in nature.
“The
appellate courts want the trial courts to spell out for the mother and
the father why they’re getting what they’re getting or, more
importantly, why they’re not getting what they are getting.”
At
first glance, HB 1550 apparently includes language that, to a
nonprofessional eye, sanctions shared custody for a parent accused of
domestic violence, a matter Rollins also addresses.
“I very much
am in strong support of domestic-violence rules and laws and orders of
protection,” she says. “However, sometimes the parties use accusations
of domestic violence as weapons. And in fact, parties may consent to
what’s called a consent decree – ‘I’ll stay away from you; you stay away
from me. I won’t harass you; you won’t harass me.’ But in reality, what
they’ve said is ‘I’ve committed domestic violence against you, and I
promise not to do it again.’”
Under
HB 1550, such a decree, which previously might have led either to
supervised visitation or to no visitation whatsoever, doesn’t serve as
an absolute bar.
“The legislation, I think, is saying, ‘No, that’s
not an absolute preclusion,’” Rollins continues. “And the court has to
do the next step of figuring out what kind of abuse was it, did it
affect the child, how would it affect the child? And it’s still OK,
court, if you look at the entire situation and you find that it’s in the
best interests of the child to have access to that parent, then you’re
not going to get in trouble, by the appellate court or somebody else, by
granting access to that child.
“And later language in the statute
absolutely spells out that they are 100 percent making a determination
if custody/visitation is safe for the child, it’s in the best interests
of the child. And then they have to spell it out to the parties in the
decree.”
Like Cernik, Rollins otherwise guardedly praises the fact that HB 1550 better brings to the fore the family access motion.
“I
think any time you can educate people about their legal self-remedies,
it really helps the process,” she says. “It keeps everybody accountable
for what’s going on. Family access motions are available to persons to
be able to alert the court if the visitation schedule is being thwarted,
without the need for hiring an attorney.
“And I think that’s just
a show of the times. Because we have more families – the divorce rate
is about 50 percent – we have more families that are dealing with child
support and aging children who are going to vocational school or going
to community college or four-year colleges and how that support is
supposed to be working out.”
Cernik otherwise offers a suggestion for lay readers approaching legal documents in general, not just HB 1550 in specific.
“In
looking at a lot of these new laws as they come along, you might want
to see if at the end of them there is written reference to rulemaking,”
he says. “Rules – in other words, interpretations – come later on to
address vague, confusing, contradictory laws. Laws seem clear but
usually are not, and the rules are the means to interpret a law and give
it some clarity.
“When I’m reading laws or bills proposed as
laws, I look to see which federal or state agency has been assigned
rulemaking capability; it’s usually written in the bill or law. If I
don’t see reference to rulemaking, I assume that the assumption is that
court cases are expected at some point to give clarity to laws. This is
similar to U.S. Supreme Court cases.”
For those tempted to think
such complications cluster only in lesser legal documents, Cernik
continues by citing one of the nation’s fundamental texts.
“The
Constitution, for example, is filled with lots of vague stuff, and we
really rely on the opinions from court cases to provide some clarity to
oftentimes incredibly vaguely written words,” he says.
“I know
that never comes across clearly on TV-news shows because it’s too
complicated to take the time to explain. If I say, ‘Article 1, Section
8, Clause 18 as understood from the court case of … ,’ well, you’ll
never see me on TV again because I just confused the audience with what
is closer to what really happens.”
Cernik concludes pragmatically
that his commentary constitutes “just some guidance in struggling
through future bills and laws. I don’t think it ever gets easier.”
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