RSMo. § 452.410 – Custody, decree, modification of, when.
The court shall not modify a prior custody decree unless it has jurisdiction and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.
2. What constitutes changed circumstances?
The decision is made on a case by case basis by the trial court after weighing the evidence. The court determines first whether there is a substantial change of circumstances related to the child or his / her custodian and then whether or not a modification of custody is necessary to serve the best interests of the child. In re D.M.S., 96 S.W.3d 167, 173 (Mo. App. 2003); In re McIntire, 33 S.W.3d 565, 568 (Mo. App. 2000). In deciding the best interests of a child in a custody modification proceeding, the trial court must consider all relevant factors, including the statutory factors found in RSMo. § 452.375.2. Beckwith v. Giles, 32 S.W.3d 659, 664 (Mo. App. 2000).
3. Who has the burden of proof?
The party seeking to change custody has the burden of proving a change in circumstances requiring modification. Reeves-Weible v. Reeves, 995 S.W.2d 50, 56 (Mo. App. 1999).
4. Relevant Case Law
Russell v. Russell, 210 S.W.3d 191 (Mo. 2007): “Courts should not require a ‘substantial’ change from the circumstances of the original judgment where the modification sought is simply a rearrangement in a joint physical custody schedule. Similarly, the parties and the courts are advised to be clear in the language of the original judgment, as was the case here. The original judgment labeled the custody provisions as joint legal and physical custody, and there is no doubt that the circuit court’s description complies with the statutory definition.”