Successfully Navigating Motions for Temporary Custody and Temporary Restraining
Orders
Writs of Habeas Corpus:
Missouri Supreme Court Rule: 91.01. Habeas Corpus--General--Who May Petition
for--Form of Action
(a) Proceedings in habeas corpus in a circuit court shall be as prescribed in this Rule 91 and in
this Court or the court of appeals shall be as prescribed in Rule 84.22 to 84.26, inclusive, and this
Rule 91. In all particulars not provided for by the foregoing provisions, proceedings in habeas
corpus shall be governed by and conform to the rules of civil procedure and the existing rules of
general law upon the subject. The court may, by order, direct the form of such further details of
procedure as may be necessary to the orderly course of the action to give effect to the remedy.
(b) Any person restrained of liberty within this state may petition for a writ of habeas corpus to
inquire into the cause of such restraint. Custody of a child may be the subject of a proceeding
in habeas corpus.
(c) A habeas corpus proceeding shall be a civil action in which the person seeking relief is
petitioner and the person against whom such relief is sought is respondent. If appropriate, there
may be multiple petitioners or multiple respondents.
Case Law:
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Writ of habeas corpus ad subjiciendum is a remedy devised to test legality of personal
restraint and it is a highly prerogative writ designed for purpose of effecting speedy
release of persons who are illegally deprived of their liberty or, as in certain instances
in case of minors, illegally detained from control of those who are entitled to custody
of them. E. W. v. K. D. M. (App.1972) 479 S.W.2d 167, appeal dismissed reversed in
part 490 S.W.2d 64.
Party applying for writ of habeas corpus must affirmatively show that he is entitled to
custody of the child sought whether it be a parent, individual or a corporation
organized for charitable purposes. State ex rel. Kassen v. Carver (App.1962) 355
S.W.2d 324.
Attorney’s Fees and Expenses:
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May be granted if there is a failure to provide a notice of relocation of the minor child
if there has been an objection to the relocation of the minor child.
Requirements for pleading Habeas Corpus:
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Petition of Habeas
o Form: A habeas corpus action shall be styled in the name of the person whose
liberty or custody is to be affected and the names of the petitioner and
respondent thus:
In re
______________________
______________________,
Petitioner
vs.
______________________
Respondent
o Must show affirmatively that they are entitled to the custody of the child
o Must be a sworn affidavit testifying to the truthfulness of said petition
o Petition must state:
 The name or description of the person who is restraining
the person's liberty;
 The place where the person is detained;
 Facts showing that the restraint is illegal or improper; and
 That no petition for the relief sought has been made to any
higher court to the one to which the petition is presented
or that the higher court denied the writ without prejudice
to proceeding in a lower court.
o Set forth your jurisdictional allegations
 Competing Jurisdictions?
 Motion for Jurisdictional Conference pursuant to RSMo §§
452.730 and 452.735.
 Pursuant to the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA, RSMo. §§ 452.700 to 452.930),
when a situation of competing jurisdiction arises there shall be
communication between Courts
 RSMo. § 452.730 “Communication Between Courts” states in
pertinent part:
o “1. A court of this state may communicate with a court
in another state concerning a proceeding arising under
sections §§ 452.700 - 452.930.
o 2. The court may allow the parties to participate in the
communication. If the parties are not able to participate
in the communication, the parties shall be given the
opportunity to present facts and legal arguments before
a decision on jurisdiction is made.
o 3. A communication between courts on schedules,
calendars, court records, and similar matters may occur
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without informing the parties. A record need not be
made of such communication.
o 4. Except as provided in subsection 3 of this section, a
record shall be made of the communication. The parties
shall be informed promptly of the communication and
granted access to the record.” (2012).
 Pursuant to RSMo. § 452.845, “If a question of existence or
exercise of jurisdiction under sections §§ 452.700 - 452.930 is
raised in a child custody proceeding, the question, upon request
of a party, must be given priority on the calendar and handled
expeditiously.” (2012).
Writ of Habeas Corpus
o Ordering after 3 days from service of writ, Respondent is to serve a copy of
their answer upon Petitioner and to appear before the Judge at the stated time,
to show the lawful basis or authority, if any, for the refusal to return the minor
child(ren).
o Ordering the Respondent to bring the minor child.
Time of Hearing
o Missouri Supreme Court Rule 91.15
 When the answer is filed, the court may proceed with the hearing not
more than five days after the filing of the answer unless the person
being restrained requests a longer time or for good cause additional
time is allowed.
Order Granting Writ
o Some divisions will only sign the writ so it should order the Respondent to
bring the minor child.
Service of Writ
o By Delivery. The writ of habeas corpus or the order to show cause may be
served by delivering the same to the person to whom it is directed or to any
other person having custody of the person restrained.
o By Offer of Delivery and Refusal. When the person to be served refuses to
receive service of the writ or order to show cause, the offer of the server to
deliver the same and such refusal, when these facts are shown on the server's
return, shall be service.
o By Posting. When service of the writ or order to show cause cannot be made
pursuant to paragraph (a) or (b), service may be made by affixing the writ or
order in a conspicuous place on the dwelling house of the person to be served
or the place where the person is restrained.
Disobedience of Writ
o Missouri Supreme Court Rule 91.13
 The person served shall comply with the writ or order to show cause
even though directed to him by the wrong name or description or to
another person.
 Unless a sufficient excuse is shown, failure to comply with the writ
shall authorize the court to order the incarceration of the delinquent
until he complies.
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The court may make any other orders necessary to bring before the
court the person for whose benefit the writ of habeas corpus is issued.
Motions for Temporary Custody:
§ 452.380. Temporary custody, motion for--dismissal of action, effect of:
1. A party to a custody proceeding may move for a temporary custody order. The motion
must be supported by an affidavit. The court may award temporary custody after a hearing or, if
there is no objection, solely on the basis of the affidavits.
2. If a proceeding for dissolution of marriage or legal separation is dismissed, any
temporary custody order is vacated unless a parent or the child's custodian moves that the
proceeding continue as a custody proceeding and the court finds, after a hearing, that the
circumstances of the parents and the best interest of the child require that a custody decree be
issued.
Case Law:
- Purpose of a pendente lite proceeding to obtain temporary child custody is to
adjudicate custody on a temporary basis pending final adjudication because no
judicial determination of proper custody has been made; it is not itself a full decision
on the merits of the custody issue. Day ex rel. Finnern v. Day, 256 S.W.3d 600 (App.
E.D. 2008).
Petition:
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Must include an affidavit setting forth the factual basis for the motion
If there is no objection to the temporary custody order, the court can rule solely on the
affidavits, however, it is error for the trial court to award custody solely on affidavits
if the opposing party wishes to present evidence at the hearing that would be
inconsistent with the affidavit.
Set forth a temporary parenting plan in the petition and the order.
Has paternity been established? “A party to a custody proceeding...”
Factors: Best interests of the child:
- RSMo § 452.375.2:
- (1) The wishes of the child's parents as to custody and the proposed
parenting plan submitted by both parties;
- (2) The needs of the child for a frequent, continuing and meaningful
relationship with both parents and the ability and willingness of parents
to actively perform their functions as mother and father for the needs of
the child;
- (3) The interaction and interrelationship of the child with parents,
siblings, and any other person who may significantly affect the child's
best interests;
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(4) Which parent is more likely to allow the child frequent, continuing
and meaningful contact with the other parent;
(5) The child's adjustment to the child's home, school, and community;
(6) The mental and physical health of all individuals involved, including
any history of abuse of any individuals involved. If the court finds that a
pattern of domestic violence as defined in section 455.010 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. Custody and visitation rights shall be
ordered in a manner that best protects the child and any other child or
children for whom the parent has custodial or visitation rights, and the
parent or other family or household member who is the victim of
domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the
child; and
(8) The wishes of a child as to the child's custodian. The fact that a parent
sends his or her child or children to a home school, as defined in section
167.031, shall not be the sole factor that a court considers in determining
custody of such child or children.
Motion for Temporary Child Support:
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A party to a dissolution can also seek temporary child support RSMo §
452.315.5
o Accompanied by affidavit setting forth factual basis and the
amounts requested
o Amount requested should be pursuant to RSMo § 452.340
 Such relevant factors include:
 1. the financial needs and resources of the child;
 2. the financial needs and resources of the parents;
 3. the standard of living the child would have
enjoyed had the marriage not been dissolved; and
 4. the physical and emotional condition of the
child and his educational needs.
Temporary Restraining Orders:
Missouri Supreme Court Rule 92.02. Temporary Restraining Order-Notice--Preliminary Injunction--Bond--Form and Scope
(a) Temporary Restraining Order--With Notice.
(1) When Issued. The court shall not grant a temporary restraining order
unless the party seeking relief demonstrates that immediate and irreparable
injury, loss, or damage will result in the absence of relief.
(2) Proof Required. A party seeking a temporary restraining order shall
support that request with a verified petition or affidavit reciting the specific
facts that support the showing required by Rule 92.02(a)(1).
(3) Required Notice. Except as provided in Rule 92.02(b), no temporary
restraining order shall issue without reasonable notice at least twenty-four
hours before the hearing on the motion to the party against whom relief is
sought.
(4) Form. A temporary restraining order shall be endorsed with the date and
hour of issuance, shall be filed forthwith in the clerk's office and entered of
record, and shall set forth specific facts that support the showing required by
Rule 92.02(a)(1).
(5) Duration. A temporary restraining order shall expire within such time
after entry, not to exceed fifteen days, as the court fixes. The court may
extend the order for additional periods, not to exceed fifteen days each, if the
party seeking relief shows that the grounds specified in Rule 92.02(a)(1)
continue to exist.
(b) Temporary Restraining Order--Without Notice.
(1) When Issued. A party seeking a temporary restraining order without
notice shall make the showing required under Rule 92.02(a). The court shall
not grant a temporary restraining order without prior notice to the party
against whom relief is sought unless the party seeking relief establishes that
notice cannot be given or notice would defeat the purpose of the order.
(2) Proof Required. A party seeking a temporary restraining order without
notice shall file a verified petition or affidavit reciting the specific facts that
support the showing required by Rule 92.02(b)(1).
(3) Form. A temporary restraining order granted without notice shall be
endorsed with the date and hour of issuance, shall be filed forthwith in the
clerk's office and entered of record, and shall set forth specific facts that
support the showing required by Rule 92.02(b)(1). A temporary restraining
order failing to set forth such specific facts is void ab initio.
(4) Duration. A temporary restraining order granted without notice shall
expire within such time after entry, not to exceed ten days, as the court fixes.
The court may extend the order for additional periods, not to exceed ten days
each, after notice to the party against whom relief is sought. The court may
dispense with such notice only if the party seeking relief establishes that
notice cannot be given to the party against whom relief is sought or notice
would defeat the purpose of the order.
(5) When Set Aside. On one day's notice to the party who obtained the
temporary restraining order without notice, or on such shorter notice as the
court may prescribe, the adverse party may appear and move to dissolve or
modify the order. At the hearing, the burden shall be upon the party seeking
the temporary restraining order to establish a right to relief.
(6) Sanction for Failure to Provide Required Notice. If the court finds that a
party obtaining a temporary restraining order without notice did not have a
reasonable basis to proceed without notice, the party shall be presumed to
have acted in bad faith and to have violated Rule 55.03(c). The thirty-day
provisions of Rule 55.03(d)(1)(A) shall not apply to proceedings under this
Rule 92.02(b)(6).
(c) Preliminary Injunction.
(1) Notice. A preliminary injunction shall not issue unless the party against
whom relief is sought is given prior notice and an opportunity to be heard.
(2) Time. If a temporary restraining order is in effect for more than thirty
days without a hearing on an application for a preliminary injunction, the
court shall schedule a hearing at the earliest possible date. The hearing shall
take precedence over all other matters except older matters of the same
character. The hearing on the application for a preliminary injunction may be
delayed past these limits if all parties consent.
(3) Consolidation With Hearing on the Merits. At any time the court may
order the trial of the action on the merits to be advanced and consolidated
with the hearing of the application for a preliminary injunction. Any
evidence received upon an application for a preliminary injunction
admissible at the trial on the merits becomes part of the trial record and need
not be repeated at the trial. This Rule 92.02(c)(3) shall be so construed and
applied to preserve any party's right to trial by jury.
(d) Bond. No injunction or temporary restraining order, unless on final hearing or
judgment, shall issue in any case, except in suits instituted by the state in its own
behalf, until the plaintiff, or some responsible person for the plaintiff, shall have
executed a bond with sufficient surety or sureties to the other party, in such sum as
the court shall deem sufficient to secure the amount or other matter to be enjoined,
and all damages that may be occasioned by such injunction or temporary restraining
order to the parties enjoined, or to any party interested in the subject matter of the
controversy, conditioned that the plaintiff will abide by the decision that shall be
made thereon and pay all sums of money, damages and costs that shall be adjudged
if the injunction or temporary restraining order shall be dissolved. In lieu of the bond
the plaintiff may deposit with the court such sum, in cash, as the court may require
sufficient to secure such amount.
(e) Form and Scope of Injunction or Temporary Restraining Order. Every order
granting an injunction and every restraining order shall set forth the reasons for its
issuance; shall be specific in terms; shall describe in reasonable detail, and not by
reference to the petition or other document, the act or acts sought to be restrained;
and is binding only upon the parties to the action, their officers, agents, servants,
employees, and attorneys, and upon those persons in active concert or participation
with them who receive actual notice of the order by personal service or otherwise.
Motion for Temporary Restraining Order:
- Set forth client is asking for sole physical and sole legal custody on a
temporary basis.
- High Standard:
o Immediate and Irreparable injury, loss, or damage will result in
the absence of the temporary straining order
- No other remedy is available to party seeking TRO
- Seeking without notice:
o Must plead that notice would defeat the purpose of the TRO
- Alternatively seeking with notice:
o Plead that should the Court require notice be given to the
opposing party, such notice would defeat the purpose of this
Order
- Plead pursuant to Mo. R. Civ. Pro. 92.02(b) party should be prevented
from removing minor children from the physical custody of party seeking
the TRO
- Affidavit of party – sample:
I, __________________, being duly sworn upon my oath, state as follows as to the factual
basis for my request for temporary restraining order:
1.
I am the Petitioner/Respondent within the above cause of action.
2.
I am the mother/father of the minor children subject to this litigation.
3.
I have knowledge as to the allegations contained in this Motion and have good
cause to fear the wellbeing of the minor children.
4.
I believe it would be in the best interests of the minor children for this Court to
award me temporary sole legal and physical custody of the minor children, and to restrain
Respondent/Petitioner from having any unsupervised contact with the minor children.
Bond:
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Party seeking must post bond
Preliminary Injunction:
- Issued after hearing on TRO
- Order listing the reasons why other party should not have unsupervised contact with
the minor children:
- Court to make a finding of immediate and irreparable injury, loss, or damage will result
in absence of said injunction
- Finding that because of other party’s conduct/behavior, the children will be emotionally
physically harmed and that irreparable injury will result.
- Finding it is in the best interests of the children for the Court to issue a preliminary
injunction