MS. MARY KAY KITHHARDT: Pleased to be here. My name is Mary Kay Kithhardt, and I'm a professor of family law at the University of Missouri, in Kansas City.

     I have been writing and researching and teaching in the area of family law since 1982. I'm coming from the perspective of a law professor and also as a mediator. I am particularly interested in children and the affects of divorce on children. I began my work in that area at the Yale Child Study Center, when I was a student at the law school there, and I continue to work with families. I've with literally thousands, excuse me hundreds, I'm not that old, hundreds of families over the past 15 years, in mediation.

     I'm very, very happy to be here with you today, and the perspective that I'm bringing is looking at some of the issues that the committee has been charged with, from a national perspective.

     I do a great deal of study, of course, on the national level, in order to present the information to my students.

     In addition, I am the Executive Editor of the Journal of American Academy of Matrimonial Lawyers, and so I have an opportunity to work with the Academy, which is made up of attorneys from all over the country, who practice exclusively in the area of family law. So, I hope that I can bring to you some perspective from that national level.

     I'd like to speak to a couple of the issues, again, that the committee was charged with, beginning with the connection between child support and visitation, and I understand from the comments and questions that this is certainly an area that you are very concerned about and that the families and children of Missouri are concerned about as well.

     I think that we can agree that in the area of support and visitation, after divorce, children need two things from their parents. They need economic stability and they need emotional support, and the question is, what can we do to ensure that they get both of those things from their parents.

     The statutes that are currently in place throughout the country can best characterize as connecting or disconnecting statutes. As the name implies, connecting means that there are links between the enforcement of support and visitation issues. For instance, support can be abated for denial of visitation, or in some jurisdictions, although not in Missouri, visitation can be withheld for a lack of paying child support.

     Connecting statutes tend to focus on enforcing the rights of adults. Disconnecting statutes recognize that the duty to pay child support and the right to visit the child should stand on their own, because the child who is the ultimate beneficiary of the support and the ultimate beneficiary of the parent's visitation should not be penalized because of the misconduct of one of the parents, whether it is a refusal to allow visitation or refusal to pay support.

     Missouri's current statute is a highly connective statute. It allows for abatement of support, or even for a change of custody, for denial of visitation. And, as I already indicated, it is connective, however, it's one-sidedly connective in the sense that a parent cannot withhold visitation, legitimately, for a denial of receiving a support payment.

     But, what I would like to suggest is that current connective statute does not serve the best interest of Missouri's children. Denial of visitation is certainly a very serious matter, and I don't think there's any question that their research clearly indicates that children benefit from frequent and meaningful contact with both of their parents after dissolution. But, taking money away from the child penalizes the child for the action of the residential parent.

     We ask ourselves, then, what do we do? I guess I'm coming from the perspective that the law is a crude instrument for dealing with interpersonal relationship, and that's what we are talking about.

     These are the kinds of matters that are often referred to like some have minor disputes. There is nothing minor in the lives of families who are constantly disrupted by concern and issues over visitation. These are the kinds of issues that affect the very quality of people's lives, and I'm not sure that we have adequate legal remedy provided by running to court or withholding support, particularly financial support.

     What I would like to suggest is, again, a renewed emphasis on looking at ways to help family, help families through mediation, help families to deal with the day-to-day reality. Why is the visitation being denied? What is the problem?

     In addition to mediation, we do need, quick and expensive access in order to resolve these issues, and so I am in favor of many of the propositions that have been put forth today, in terms of providing those kinds of mechanisms.

     What I think is not appropriate, I am concerned about using a change of custody as a penalty for denial of visitation without a serious look as to whether or not it's in the best interest of the child. I agree with Judge Frawley that change in custody may be more about punishing parents than it may be in the child's interest.

     As far as the abatement of support is concerned, again, the time of financial support of a child to deny a visitation most often results in the child being penalized. This is particularly true about the abatement of past support. I do not think that we want to encourage parents to withhold support. I do not think that we want to put in the hands of the obligor parent the unilateral decision as to what is unreasonable denial in order to stop paying child support.

     Judge Frawley made a comment earlier about allowing interest to be paid on past child support as a means of rectifying the fact the support hadn't been paid, and he made the comment, which was certainly accurate, that there is only going to be one fourth grade recital, and there's only going to be one time a parent can participate in a certain event, and I would agree with that. But, I don't think that awarding interest on a child support award that had not been paid, will adequately compensate for the losses that may have occurred. Many of the parents that we are talking about live from day-to-day. They live with that child's support money, and if, by September 1st, they don't have the money for the band uniform, then the child is not in the band, and paying interest on a past due support that was due on September 1st, on October 15th, is not going to give that child the opportunity to be in the band, and that's the kind of issue that I think we are talking about with respect to our families.

     I am particularly concerned about the abatement of child support without requiring the obligor parent to be current in those child support payments. If we offer access to the court, which we most certainly should, for denial of visitation, I think that we should require that parent who is obligated by law to pay support, to come to the court with clean hands. The child.....

     CASKEY: Isn't that the law?

     KITHHARDT: As I understand the proposal of doing that, it be changed that the obligor parent not have to be current in their current support payment.

     CASKEY: So, you're not addressing what the law is today. You're addressing potential changes.

     KITTHARDT: Am I wrong about that? I think that was the change. That was the change that was in Bill 360, 361, not 51.

     (Someone speaking from audience. Cannot be heard)

     KITTHARDT: That the parent no longer be current in their support. That was my reading of the change. Am I incorrect? This is, as it currently stands, would be the most far reaching statute in terms of connective statute in the country. It would not require an obligor parent to be current in support, and I think that if we look at it, historically, why did we require the parent to be current in support? We required the parent to be current in support, partly, because, of course, the child needed support. Secondly, we don't want to give more opportunities for conflict between families by having individuals be unilaterally able to say I think my support is being, or my visitation is being denied unreasonably. Therefore, I'm not going to pay the support, and be able to do that, and, third, one would assume that if the obligor parent were going into court and asking for a visitation to be enforced, he or she was doing so out of concern for the best interest of the child. How can one demonstrate that they are truly concerned about the child when they have failed to financially support that child. So, I think it's also predicted, and as an indication of a concern for that child.

     In addition, I, like many of the other speakers, am opposed to criminalizing this area, simply do not believe that criminal sanctions are appropriate for these kinds of disputes.

     With respect to the issue of joint custody. We've heard some testimony about rebuttable presumption, about preferences. The statute that we currently have in Missouri is representative of the majority of the states, nationwide. It allows the court to award joint custody, and clearly delineates that all decisions are to be made in light of the best interest of the child, and there is a clear articulation in the statute of the principle that frequent and meaningful with both parents is desirable. I think the statute takes into consideration, both what is best for children, and gives recognition to the importance of both parents' continuing role in the life of that child. To amend the statute, to include a strong presumption of joint custody, or a presumption concerning how times should be allocated, shifts the balance from the best interest of a particular child to a focus on parental rights, to a certain percentage of that child's time. I am absolutely in full agreement with the testimony from our expert from Texas concerning the effects of joint custody when parents agree and cooperate. I don't think there's any question that the evidence continues to suggest that ongoing contact with both parents after divorce is what is best for children, as long as there is not continuing conflict. Divorce, itself, is not bad for children, ongoing conflict is.

     DOUGHERTY: Mary Kay, let me ask you about that, for a moment. As was proposed last session, that a rebuttable presumption be established, skipping the hierarchy question that rebuttable presumption be established in law, which you can rebut. Does that not send a message or maybe people aren't in a message mood at this point and time of divorce, but does that not send a public policy message to society that this is the way we want individuals to deal with each other. Now, obviously, there are those who will fall into the - they hate each other's guts and will do anything they can to hurt the other person, but, would that not, from a different public policy on the table that is not inherently not - I don't want to use a double negative here, which is not inherently against the concept of the best interest of the child, rather it states this is the public policy of the state which can mesh perfectly with the best interest of the child because that's rebuttable. I appreciate your comments on that.

     KITTHARDT: I think, first of all, that the statute already sends a clear message about the policy, in Missouri. I think it's very clear, that the statute said that the policy is frequent continuing meaningful contact with both parents. I don't think we need a rebuttable presumption in the law in order to accomplish that. I think that our priority is either best interest of the child, or it's a focus on presumptions with respect to the parents. I think that we can accomplish what we want to accomplish in terms of sending a message with a statute that has the language that we currently have. Virtually, every state that has gone to a strong presumption of joint custody, has repealed that presumption, and it is because what we are finding is that in some situations when we have a rebuttable presumption it is so overwhelming that judges, unfortunately, are using it as a means of avoiding the difficult cases, and so,......

     DOUGHERTY: What do you mean by that?

     KITTHARDT: Difficult cases and awarding custody, rather than looking at the individual facts of that case and saying, it's tough to make the decision. It's really tough. So, even if one parent objects, if you have a presumption of joint custody, then you could order joint custody over the objection of one of the parents, and judges were doing that, and so then what you had was the worst possible scenario, because then you had parents who didn't want joint custody who the court told was going to have joint custody, and then you set up a situation where you've got highly conflictual families.

     CASKEY: What you're saying is the judges would construe that as conclusive presumption, rather than......
 
    KITTHARDT: Well, I think that the presumption, I mean, I think in terms of the amount of evidence, etc., that you have to present to overcome the presumption, in addition......

     CASKEY: It becomes a conclusive presumption.

     KITTHARDT: Well, it's not a conclusive presumption, but any time you put even a rebuttable presumption, I mean, in terms of burden of proof......

     CASKEY: I'm talking about what you're saying that the judges would cop out, and the burden would be so high that you couldn't overcome the presumption.

     KITTHARDT: Well, what happens is, that rather, again, them making the tough choices.

     CASKEY: Yeah, they cop out.

     KITTHARDT: Yes, they say, let's just have joint custody.

     What I would prefer to see is a statute, as we have, that allows for a clear principle, but it also allows the court to fashion a plan that is tailored to the needs of that family, and with respect to joint legal custody and physical custody, many statutes only define joint and legal custody. Joint and legal custody is the ability to make major decisions, medical care, education, etc. Defining joint physical custody, what does significant periods of time mean? I am of a kind of advocating for a joint legal custody and then allowing for a parenting plan that allows whatever period of time are most appropriate for that family. That gives the judge and the family the most opportunity to design a good plan. In terms of this hierarchy and preference, it seems to me that it would be more appropriate to continue with joint legal custody and then to allow for the parenting plan, without any reference even to primary residential parent. I don't know what the purpose of primary residential parent is. I know what the effect is. The effect is that the families that I see in mediation have come up with a good plan that allows their children to spend time with both of them without counting the days and the hours, and when I have to discuss with them who is going to be the primary residential parent, what happens? Well, both of them want to be designated as the primary residential parent. Who wants to give up the designation of the primary residential parent, and what is the point? Why do we need to designate who is the primary residential parent? What meaning does it have outside of this document, that we are insisting upon as a designation. So, I would prefer joint legal custody with a parenting plan that allows parents to continue to parent in a way that is most appropriate for their family without having to designate who is the primary residential parent.

     Just a couple of other things that I'd like to address, because I know, again, they're on the committee's mind. One is the relocation issue. I would agree that any limit in terms of miles, driving distance, etc., is problematic. How do most states deal with this? Most states deal with this exactly the way that Missouri does, and that is out-of-state. That's the limit. That's the limit. We know what it is. We face the opposite problem in Kansas City, with people moving. We face the situation where the parent says I'm only moving to Johnson County. I'm only moving five miles away. Why do I need to get a court order? Well, that's the down side. But, I think that out-of-state is something that we can live with. I'm absolutely in favor of a notification provision, that if a person is going to change the primary residence of a child at a residential address, that they ought to notify the other individual who has visitation rights, be it the other parent, the grandparent, whoever it is, of the change of address. It seems to me that we already have in place in the law, mechanisms for modification, and that we can use this mechanism. In addition, the case law in Missouri, on relocation, is well defined, and I think is an appropriate balance to all the rights involved in that situation. They are very difficult cases. There's absolutely no question about those. But, my reading of most of the case law is that the judges have made the decision. They have looked at the factors. They have attempted to balance all the individual concerns. They are good factors. They look at why the parent wants to move. Why the other parent is objecting, how it will affect the child, first and foremost, and then how will it affect the parents involved, and I think that's an appropriate way for dealing with relocation.

     Finally, just in terms of the parent education, oh, and I also wanted to just respond. There was a question earlier about the UCCJA, and about the move to Kansas. My reading of that is that as long as the other parent would stay in Missouri, that Missouri would continue to have jurisdiction, because modification jurisdiction under the UCCJA is different from our original jurisdiction, and Kansas would only obtain jurisdiction if Missouri gave up jurisdiction. As long as one parent remained in Missouri, my understanding of the law, under the current UCCJA that Missouri would retain jurisdiction in that particular matter.

     RIDGEWAY: Does Missouri retain jurisdiction by making it an explicit statement in the order of modification, or is it, in your opinion, it's just retained unless surrendered?

     KITTHARDT: That's right, because modification jurisdiction under the UCCJA is different from the original jurisdiction, and where the purpose of the UCCJA was to avoid competing jurisdictional questions, particularly on modification. So, it's more difficult to obtain modification jurisdiction than it is to obtain original jurisdiction. That would be my reading of that question.

     CASKEY: Professor, I don't know that that's necessarily the law, as construed by our courts.

     KITTHARDT: I'm sorry.

     CASKEY: I don't know if your interpretation is necessarily the law as construed by our courts, because unless you have something filed in this state, then I don't think Kansas takes jurisdiction, with the experience that I've had in my practice, anyway.

     KITTHARDT: The original was.....

     CASKEY: After six months.

     KITTHARDT: Then after six months, Kansas would take jurisdiction to modify?

     CASKEY: Unless you have something filed in Missouri.

     KITTHARDT: I think we were talking about something that was filed in Missouri. Wasn't that your question?

     RIDGEWAY: Well, the problem is, it's filed in Missouri, but then, let's say that the parent does remove the child to the state of Kansas and that modification proceeding reaches a conclusion, and a judgement is entered......

     KITTHARDT: In Missouri?

     RIDGEWAY: In Missouri. Eight months passes. Doesn't the Kansas court, then, assume jurisdiction over that child?

     KITTHARDT: When the other parent is still living in Missouri?

     RIDGEWAY: Right.

     KITTHARDT: I don't think so.

     RIDGEWAY: Not under the new stuff.

     CASKEY: Unless you have something filed in the state of Missouri, on the second event.

     KITTHARDT: But, we would, and I think that's what you're asking, wasn't it?

     CASKEY: You have the original dissolution in Missouri.

     KITTHARDT: Right, and then you have the order that says that the child can move to Kansas.

     CASKEY: Right.

     KITTHARDT: And it says it's got to be filed in Missouri that gives Missouri jurisdiction.

     CASKEY: But, then, when they go out of the state, and what is happening in my area, is the Kansas courts are assuming jurisdiction, unless you have a modification filed in Missouri, and I just went through one of those.

     HOLLINGSWORTH: Mr. Chair, the new information that Senator Wiggins supplied us on the new drafting committee's recommendation....

     CASKEY: That's under the Uniform Act.

     HOLLINGSWORTH: Right, and that does cover this situation, whereas the professor said, we retain jurisdiction, and was....

     CASKEY: But, that's not the law in Missouri today.

     HOLLINGSWORTH: Presently. No.

     JACOB: Here's the statute right here.

     KITTHARDT: On modification jurisdiction? Because you're talking about a modification, Kansas then taking the jurisdiction on a modification.

     JACOB: Right. Well, the definition is custody determination, custody proceedings. You can look at the statute here. I don't really see where it distinguishes between the two. But, I've always, every case I've ever had, it's always, you're someplace for six months, that's where this jurisdiction.....

     KITTHARDT: Well, there's definitely difference between modification and original jurisdiction, under the UCCJA.

     JACOB: Under 452.440?

     KITTHARDT: Uh huh. And, there should be, other states have certainly interpreted it that way, that you're just moving the child to another jurisdiction for six months, does not give that second jurisdiction, modification jurisdiction.

     RIDGEWAY: That'S something I'd really like to see us address, because, obviously, we've got different experiences, and different concerns up here, and it is a real concern, as you know, in the Kansas City area, and causes parents who normally would get along, and there wouldn't be any problems with the children and the parents until Parent A that is considered the primary physical custodian decides for whatever reason they have to move to Johnson County, and the judges are somewhat inclined to let them go. So, it's an issue that we've got some questions and some conflict that I'd like to see resolved, but while I'm kind of taking up some time here, I have another question for you. I know you've been here a lot today.

     You talked about criminal enforcement, that you don't like to see that. I don't either. What about the parent who has to pay child support. They put them in jail if they don't pay after a period of time, it seems to me a defeating purpose. What are some solutions other than the fines and things that we already do for that nonpaying parent?

     KITTHARDT: Well, I think that, again, I think we certainly have to look at the problem at the source, and figure out why denial of visitation is occurring. I think that's only going to happen in the settings that allows for full exploration of those issues, in mediation or in hearing, and then I think, upon further violation, fine may be an appropriate mechanism. At least it doesn't take the money away from the child as far as the support is concerned.

     RIDGEWAY: And, as far as the parent who is unreasonable with regard to providing visitation, we've discussed fines, visitation bonds for the teenage child, taking drivers license privileges away, those sorts of things. Can you think of anything else for an enforcement mechanism that we haven't discussed here today.

     KITTHARDT: I really cannot, and we already have the contempt remedy, and I really don't know what other states are doing, as far as  what we've already talked about.

     RIDGEWAY: Okay, one last question, I have, then, that you talk about the only way that a parent should have access to enforce visitation, is if they come in the court with clean hands, and the modifications that have occurred in the law, as I understand it, and I don't do much practice out in out-state Missouri now, mostly I'm in Clay and Platte. There's not a good record kept. They oftentimes don't pay through the courts. If that non-custodial parent is  coming into court, asking for assistance and enforcing visitation, then, as a practical matter, wouldn't the custodial parent just have to come to come into court and object if he's not current on his child support, and get him bounced out of court, excuse me for using the he's and she's, but that's usually what it is. I'm concerned, as a practical matter about the clean hands doctrine being applied to this. Shouldn't we just go ahead and get those issues before the court, before the mediator, whatever, and not worry about who has clean hands?

     KITTHARDT: Well, I think in terms of clean hands, the clean hands means the support is current. Most of this support, at least where I am paid through the court and so we have much better record keeping. Perhaps, that's not the case everywhere in terms of whether or not we would have accurate records, and maybe that's the answer. I mean, maybe the answer is to increase the number of support payments that are made to the courts that we do have good records. That's one of the purposes of that.

     RIDGEWAY: Well, the problem of it is, I don't mean to insult any court in Missouri, but the fact of the matter is, sometimes personal record keeping might be better than some of the court record keeping.

     KITTHARDT: And I think, in that case, I think, certainly, we would want to encourage the obligor parents being by check or other means that would be allowed to be verified.

     Just one final comment that I'd like to make about the parent education program, because I know that's something else that we have  been talking about. Just my personal experience, we do have a parent educational program, as you know, in Jackson County, and someone asked about whether or not it was effective in terms of encouraging mediation or in terms of working with parents. I can't quote you any statistics, but, I can only give you antidotal evidence of my experience, and that is that I see a tremendous difference in the parents who come to me for mediation, after they have been to the focus program, than before. Their understanding and knowledge of the dynamics of the divorce and the effects of the divorce on their children is so much better and they are much better able to deal with those issues and to separate out the issues of parenting versus their personal issues, which are often obviously conflictual. So, I certainly am a very, very strong proponent of parent education and I think throughout the country it's proven to be very, very successful, and I would certainly encourage you to consider that, and, again, I think parent education would go a long way to dealing with some of the problems, resolving the problems we've been talking about. I think when parents go to parent education and recognize that denying visitation to the other parent is harmful to their children, it's not just about them and about vindication and revenge. It's bad for kids and it's bad for their kids. I think that we're going to see less of the problems that we have seen. And, I'd be happy to take any of the questions.

     JACOB: Mr. Chairman.

     CASKEY: Senator Jacob.

     JACOB: I just wanted to, on 452.450, under jurisdiction, it says a court of this state, which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial for modification decree, if. So, am I missing something with your ......

     KITTHARDT: Well, that's my understanding, and I'll be happy to take another look at that, but my understanding is, modification jurisdiction under the UCCJA is more difficult than original jurisdiction. I'll be happy to take another look at that.

     JACOB: I just think just the opposite. You ought to check into it, because ......

     KITTHARDT: I'll be happy to do that.

     JACOB: Okay.

     HOLLINGSWORTH: Mr. Chairman?

     CASKEY: Representative Hollingsworth.

     HOLLINGSWORTH: Thank you. Professor, you've indicated some really good comments here, and I want to make sure I understand. You indicated, giving us our lesson about connected and disconnected statutes. You talked about keeping them separate, those issues of support and visitation, but then you do support having the clean hands doctrine as Representative Ridgeway spoke about, and I don't quite understand that decision, when you're saying we do need to keep it separate, because these issues are so important in and of themselves. So, how do you pull that into your.....

     KITTHARDT: What I need to suggest is that if we're going to have a connected statute, then I think that we need to make sure that we have a clean hand. I am not in favor of the connected statute.

     HOLLINGSWORTH: But you would be supportive of a disconnected, is what you're actually encouraging us to move toward.

     KITTHARDT: Yeah. But, if we have a connected statute, I certainly would want to see support continued being paid until there is a court determination of unreasonable denial.

     HOLLINGSWORTH: Okay. Then, finally, my last question, in you giving us, perhaps, your view of in the perfect world, where we have joint legal custody, with a parenting plan, and we're silent on who, you know, we stop using the word "primary" or "sole custodian", I guess, but then when we come to the question of relocation, if both parents are joint decision makers on other things, the residents of the child, so I guess we still have a conflict there, that has to go through the court process.

     KITTHARDT: Well, I think any time you're going to move a child out of the state and it's going to have a significant impact on the parenting plan.....

     HOLLINGSWORTH: Well, within the state, but still even  within the state which is our problem is.

     KITTHARDT: Even within the state, I think any time that you are going to then change the parenting plan any significant way, then I think you have to ask for a modification. You can ask for a modification, clarification of the parenting plan, and I think you can always do that. You can do that now.

     HOLLINGSWORTH: With attorney fees, generally. That's our problem.

     KITTHARDT: Yeah.

     HOLLINGSWORTH: Okay. Thank you. Thank you, Mr. Chair.

     CASKEY: Senator Yeckel.

     YECKEL: Professor, I have a question. You were talking about the primary residence, and only because I'm still on the school board, does that appear as a problem to me, because there are rules that the child cannot attend........

     KITTHARDT: Uh huh.

     YECKEL: And so you'd recommend removing that from the law, even though the school districts have become.....

     KITTHARDT: Well, it seems to me that to the extent that there are some circumstances in which an address has to be designated for situations like residents in school, that the parents would have to agree on one of those residences for purposes of the school. I don't think that that precludes a parenting plan that doesn't necessarily have the designated primary residential parent. I think that there are certain circumstances in which you have to designate for purposes of the school, the child will be deemed to reside here. But, that doesn't necessarily - and, that may not necessarily impact other parts of the parenting plan.

     YECKEL: What would you suggest that the parents deem the child to reside in the best school district, and that would be part of the parent plan?

     KITTHARDT: Right. And, I think, depending upon the school district's own requirements as far as what does the school district require in order to provide education for a child?

     YECKEL: They require that the......

     KITTHARDT: Does it require that the child live there a certain number of days, that the child......

     YECKEL: No, they require the legal documents governing it.

     KITTHARDT: The legal document?

     YECKEL: Yes.

     KITTHARDT: Well, then, it seems to me that the parenting plan, itself, could be the legal document that says the parents have joint legal custody.

     YECKEL: All right, so you would suggest the parents choose the best school district, and name that.

     KITTHARDT: If that's what the parents want to do, yeah. That's a parental decision. Parents can move to another school district if they want, so it seems to me that if they live in two different schools that they ought to be able to designate which of those school districts they want the child to go to school in.

     YECKEL: Thank you.

     CASKEY: Any other questions? Thank you, very much, doctor, for coming in.

     KITTHARDT: I want to leave for, also, a chart that looks at the child custody statutes in all jurisdictions. I talked about preference.

     CASKEY: Wonderful we appreciate that, very much.

     KITTHARDT: And, I'll leave that, along with my supporting documentation.

     CASKEY: Great. Thank you, very much.

     Scott Field.