Other topics of possible interest to site visitors are covered below, with a focus on the court system.
On this page:
- Overview of Missouri Court System and Civil Litigation Process
- Missouri Small Claims Court Cases
- Missouri Associate Circuit Court Cases
- Missouri Circuit Court Cases
- U.S. District Court Cases
- Name Changes
Overview of Missouri Court System and Civil Litigation Process
Missouri court system overview
The Missouri court system consists of trial courts, which hear evidence and make decisions based on the evidence, and appellate courts to which dissatisfied litigants can appeal if they believe the trial court erred. Appellate courts generally do not hear evidence; rather, in making their decisions, they review a transcript of the witnesses’ testimony in the trial court and the exhibits submitted by the parties, as well as legal briefs prepared by the attorneys.
The trial courts in the Missouri state system are the Circuit Court, Probate Division of the Circuit Court, Associate Division of the Circuit Court, and Small Claims Division of the Circuit Court. See the linked pages for descriptions of the types of cases they hear. Other trial courts that are not covered here are not relevant to landlord-tenant cases – they are:
- Probate Division of the Circuit Court
- Juvenile Division of the Circuit Court
- Municipal Court Division of the Circuit Court.
The Circuit Courts are organized into various “circuits” consisting of one or more counties. The 13th Judicial Circuit comprises Boone and Callaway counties. Judges in a particular circuit can hear cases in any county within the circuit and can hear cases in other circuits by special assignment by the Missouri Supreme Court.
The highest appellate court in Missouri is the Supreme Court. It has exclusive jurisdiction over appeals from trial courts involving:
- The validity of a treaty or statute of the United States, or a statute or provision of the Missouri Constitution
- The interpretation of Missouri’s revenue (taxation) laws
- Entitlement to any state office
- A criminal sentence of death
The Supreme Court also has the discretion to accept “transfer” of cases from the lower appellate courts. It then makes the final decision on such cases.
The lower appellate courts are known as the Courts of Appeals. They consider all appeals from trial courts that are not within the exclusive jurisdiction of the Supreme Court. The Eastern District of the Court of Appeals is headquartered in St. Louis, the Western District in Kansas City, and the Southern District in Springfield. Each of the Courts of Appeals has an assigned geographical area from which it accepts appeals. Boone County is in the Western District. Either a Court of Appeals or a litigant can ask the Supreme Court to accept transfer of a case decided by the Court of Appeals.
All appellate judges in Missouri, as well as trial court judges in the St. Louis, Kansas City and Springfield metropolitan areas, are selected through the Missouri Non-Partisan Judicial Selection Plan. A committee appointed by the Governor interviews applicants for a vacant position and recommends three to the Governor, who appoints one.
Trial court judges in outstate Missouri are elected by voters on partisan ballots, except that Municipal Court judges are appointed by city councils.
Distinction between civil litigation and criminal cases
Civil litigation should be distinguished from criminal cases:
- In a civil case, private parties seek to resolve a private dispute based on some alleged private wrong-doing that usually does not (but sometimes may also) constitute a violation of criminal statutes.
- In a criminal case, the state prosecutes an alleged violator of criminal statutes. Violation of criminal statutes is considered wrong-doing against the public (although usually there are individual victims, who may have a separate right to pursue a civil action against the wrong-doer).
The types of civil cases are to numerous to enumerate here, but include contract, tort (private wrong-doing not arising from contracts), family law and property cases, among many others.
Parties to civil lawsuits
The person or company filing a civil lawsuit is called the “plaintiff,” while the person or company sued is called the “defendant.” There can be multiple plaintiffs and/or multiple defendants, depending on the circumstances. In some cases, more specialized names are used for the parties – for instance, in a dissolution of marriage, the spouse filing the case is called the “petitioner,” while the other spouse is called the “respondent.”
All the participants in a lawsuit are referred to as the “parties.”
Civil litigation process
Civil litigation is begun by filing with the clerk of the appropriate court a legal document called a “petition” in state court (a “complaint” in federal court) and paying the filing fee required by the court for the particular type of case. The filing fee is an advance deposit toward court costs. Court costs are usually assessed against the losing party in a lawsuit, so if the plaintiff wins, the filing fee can be recovered.
Once a lawsuit has been filed, a copy of the lawsuit must be “served” on the defendant along with a legal document issued by the court clerk called a “summons.” This requirement is based on fundamental concepts of fair play and due process – that is, it would be unfair for the court to allow the plaintiff to proceed against the defendant without the defendant having notice that the lawsuit has been filed and an opportunity to defend. Service of the summons and petition on the defendant is usually accomplished by personal delivery by the sheriff or a private process server. In some situations, the documents can be sent to the defendant by mail. More rarely, usually when the whereabouts of the defendant are unknown, it is legal to accomplish service by publishing a notice in a newspaper.
After the summons and petition have been served on the defendant, the defendant has a period of time within which to respond to the petition. The summons advises the defendant of the time allowed, which can vary with the type of case and the court in which it was filed. Depending on the type of case and the court, the defendant must either file a written response with the court, appear in court personally, or have an attorney appear personally.
If a defendant fails to respond to a petition after proper service, the court can enter what is known as a “default judgment” against the defendant, granting the relief requested by the plaintiff. In this situation, the defendant is deemed to have waived the opportunity to present evidence, but the court may require the plaintiff to present some evidence in support of the petition.
Sometimes a defendant will admit the allegations of the petition to the court, in which case the court can enter what is called a “consent judgment” against the defendant.
If the defendant disputes some or all of the allegations of the petition and/or asserts affirmative legal defenses to the petition, the case is considered to be “contested” and will ultimately have to be tried (unless the parties can voluntarily settle the dispute or the lawsuit is dismissed for some reason).
If the defendant has a claim against the plaintiff, the defendant can file a “counterclaim” against the plaintiff in the same lawsuit so all issues between the plaintiff and defendant can be decided at the same time. When a counterclaim arises out of the same basic set of facts as the plaintiff’s claim, the counterclaim may be deemed mandatory – that is, the counterclaim will be waived unless filed in response to the plaintiff’s lawsuit and cannot be filed as a separate lawsuit in the future.
Except in Small Claims Court, the parties to a lawsuit have the right to use various “discovery” procedures to obtain information from the other side and third-party witnesses in order to prepare for trial. The discovery process can also promote settlements as the parties learn more about the strengths and weaknesses on both sides of the case. The main discovery devices available are:
Interrogatories: These are written questions submitted to the other side in a lawsuit, which the other side is required to answer in writing and under oath.
Requests for Production: One party in a lawsuit can submit a request to another party to produce particular documents and/or things that may be relevant to the lawsuit.
Depositions: Depositions can be taken from both parties and witnesses who are not parties to the lawsuit. Legal devices are available to compel reluctant witnesses to give a deposition and to bring particular documents and things with them to the deposition. A witness giving a deposition is called a “deponent.” At the deposition, the attorneys for all parties have an opportunity to ask the deponent oral questions which the deponent must answer orally. Before starting, the witness is placed under oath to tell the truth, just as in court. A deposition reporter, using a machine shorthand device or a tape recorder, takes down all of the questions and answers verbatim and later prepares a typed transcript which is provided to the parties who request it. Under certain circumstances, depositions can be introduced in evidence at a later trial. Sometimes depositions are also video-taped so they can be played back at trial.
Physical and Mental Examinations: If relevant to the case, one party can request that another party be required to submit to a physical or mental examination by a professional of the requesting party’s choice.
Inspection of Real Property: If relevant to the case, a party can obtain an order from the court for permission to go onto and inspect real property owned by another party.
Except for depositions, parties usually are required to respond to discovery requests within 30 days. Special rules apply to depositions. Unless the court finds a discovery request was improper, the court can order a non-responsive party to respond and impose sanctions for failure to do so.
Trial of civil lawsuits
Roughly 90% of all civil lawsuits are settled prior to trial, but if the investigation and discovery in a lawsuit do not result in the parties agreeing to a voluntary settlement, the case will have to go to trial unless it is voluntarily dismissed by the parties or involuntarily dismissed by the court on legal grounds.
In many civil lawsuits, there is an absolute right to a trial by jury unless waived by the parties. If a jury is waived, the evidence is heard and the case is decided by the judge alone. In other cases – dissolutions are one example – there is no right to a jury trial, and these cases are automatically tried to a judge.
In a trial, both sides are entitled to present evidence, which generally consists of the sworn testimony of various witnesses (either live or presented through depositions) and the presentation of various exhibits (which can include documents, photographs and tangible objects).
At the trial court level, smaller cases, particularly those in Small Claims Court and the Associate Division of the Circuit Court, are typically decided within one to three months. More complicated cases, usually in the Circuit Court, usually take from six to 18 months to resolve.
Appeals in civil cases
After a ruling at the trial court level, in almost all cases there is a right of appeal to a higher court. As implied in the Missouri court system overview at the top of this page, most cases tried in Circuit Court and Associate Division are directly appealable to a Court of Appeals. A much smaller number of highly specialized cases are directly appealable to the Missouri Supreme Court. The Supreme Court and the Courts of Appeals generally decide appeals within six to 12 months.
Other cases, primarily Small Claims cases, are initially appealed by requesting a new trial in the Circuit Court. After the new trial, an appeal can be filed with an appellate court.
There are strict deadlines and many rules governing appeals, so the assistance of an attorney is highly advisable in most cases.
The civil litigation process is a complex one, involving many legal and procedural rules and time deadlines. Thus, although the law permits individuals to represent themselves in court, it is very difficult for most non-lawyers to pursue or defend a civil case successfully without the assistance of an attorney (except in Small Claims Court).
Missouri Small Claims Court Cases
The Missouri Small Claims Court is designed for quick resolution of small claims, defined as claims of $5,000 or less. People having larger claims can still use Small Claims Court if they are willing to forego any recovery over $5,000.
Small Claims Court parties are not required to use an attorney, and the judge will help them present their cases by asking relevant questions. However, the parties are entitled to be represented by an attorney if desired.
To file a small claims case, simply go to the office of the Circuit Clerk in the county courthouse and ask to speak with the Small Claims Clerk. The Small Claims Clerk will provide the necessary forms and even help fill them out if requested. Check in advance with the clerk’s office concerning the filing fees required.
When filing a small claims case, an important consideration for the plaintiff is naming the correct defendant. If the wrong defendant is named, the plaintiff may lose the case or end up with a judgment which cannot be collected. Here are some tips to make sure the right defendant is named:
- In all cases, the plaintiff must provide the correct address for the defendant.
- If the defendant is an individual, the plaintiff should be sure to provide the correct full name of the defendant.
- If the defendant is a partnership, all partners in the partnership should be named as defendants.
- If the defendant is a corporation or limited liability company, the correct name of the corporation or LLC should be used.
- Information on some partnerships and all corporations and LLCs is available from the Missouri Secretary of State.
- Sometimes individuals or companies do business under a so-called “fictitious name.” For example, John Doe or Doe, Inc. may do business as “Doe’s Used Car Sales.” In this situation, the individual or company owning the business should be named as the defendant rather than using the fictitious name. Missouri law requires public registration of fictitious names with the Secretary of State.
- For information on corporations, some types of partnerships and fictitious name registrations, check the website of the Missouri Secretary of State. In Columbia, Missouri, another source for obtaining information about the ownership of a business is the city business license office.
After the case is filed, the petition and summons are served on the defendant, usually by certified mail. If the defendant has a counterclaim against the plaintiff, it can be filed in the same case. The court notifies both the plaintiff and the defendant of the trial date and time.
At the time scheduled for trial, both parties should be present with any witnesses and exhibits (documents or other tangible objects) that may help support their cases. If the plaintiff fails to appear, the judge can dismiss the case. If the defendant fails to appear, the judge can enter a default judgment against the defendant. If both parties are present, a trial will be conducted, and the judge will help the parties and their witnesses by asking relevant questions and asking to see their exhibits. The formal rules of evidence that apply in higher courts do not apply in Small Claims Court. After all the evidence has been heard, the judge will decide who wins the case and enter a written order called a “judgment” in the court’s file on the case.
The losing party in a small claims case can appeal by filling out the appropriate form and filing it with the Small Claims Clerk within 10 days after the judgment was entered. If an appeal is filed, a Circuit Judge will rehear the entire case at a later time, and the parties will be notified of the rehearing date and time.
Collecting a Small Claims Court judgment is not automatic for the winning party. Sometimes the losing party will pay the judgment voluntarily. Other times, however, the winning party will have to ask the Small Claims Clerk to issue special legal documents to enforce the judgment. The primary method for enforcing a small claims judgment is a legal document known as a “garnishment,” which allows money to be deducted from the losing party’s bank account or withheld from the losing party’s paycheck.
Although the judgment collection methods available in Small Claims Court are limited compared with those available in higher courts, Small Claims Court is the often the best option to pursue a small claim because cost of using an attorney could exceed the amount of the claim.
Missouri Associate Circuit Court Cases
A good way to describe the Associate Division of the Circuit Court in Missouri is that it deals with cases more complicated and involving larger amounts of money than Small Claims Court, but less complicated and involving less money than Circuit Court cases.
Many kinds of civil lawsuits can be filed in the Associate Division, subject to a jurisdictional limit of $25,000. The Associate Division also has jurisdiction over most landlord/tenant cases and can, by assignment from the Circuit Court, hear cases that would otherwise be within the exclusive jurisdiction of the Circuit Court. One common type of civil lawsuit filed in the Associate Division is the so-called “collection” case in which a creditor seeks to collect money allegedly owed by a debtor.
Proceedings in Associate Division are designed to be speedier than in Circuit Court, and most Associate Division cases are resolved within one to three months after filing. In contrast to Small Claims Court, however, proceedings in the Associate Division are more formal and all rules of evidence apply. This makes it more difficult for individuals to successfully represent themselves in the Associate Division, although they have the right to do so. With limited exceptions, corporations and most organizations can only be represented by an attorney in the Associate Division.
In Associate Division cases, the summons served on the defendant along with a copy of the plaintiff’s petition notifies the defendant of an initial court appearance date (called the “return date”). The plaintiff is also notified of the return date. On the return date, both the plaintiff and defendant should appear, either in person or through an attorney. Typical outcomes on the return date are:
- If the plaintiff fails to appear, the court will dismiss the plaintiff’s claim (but it can be refiled later upon paying another filing fee).
- If the defendant does not appear, the court will enter a default judgment against the defendant.
- If the defendant appears and admits the allegations of the plaintiff’s petition, the court will enter a consent judgment against the defendant.
- If the defendant disputes all or part of the plaintiff’s petition, the case will be set for trial at a later date.
Defendants in Associate Division cases should be aware of a possible pitfall in the way they respond to a plaintiff’s petition. The somewhat informal procedures allow a defendant to appear personally or through an attorney and orally deny the validity of the plaintiff’s allegations. However, if the defendant wishes to assert affirmative defenses and/or counterclaims, these must be filed with the court in writing together with any denials of the plaintiff’s allegations. Failure to file written affirmative defenses and/or counterclaims results in a waiver, with the consequence that the defendant will not be permitted to present evidence on these issues at trial if the plaintiff objects.
Although Associate Division procedures are designed for speedy resolution of cases, it is possible in some cases to use the discovery techniques mentioned under the “Overview” topic above. Using these discovery techniques may require obtaining an order from the judge allowing more time before a trial is scheduled so discovery can be completed.
In Associate Division the parties are entitled to trial by jury in some cases, but a party desiring a jury trial must request it at least five days before trial. In other cases, there is no right to a jury trial. Few jury trials are requested in the Associate Division, however, because it is quicker and less expensive to have cases heard by the judge.
Most Associate Division trials are held “on the record,” with the proceedings being voice recorded. In these cases, if either party desires to appeal, the appeal is made directly to the Missouri Court of Appeals.
Missouri Circuit Court Cases
In Missouri the Circuit Court is the highest trial-level court. It deals with cases involving larger amounts of money than those in lower trial courts, and it has exclusive jurisdiction to hear certain types of cases.
The procedures in Circuit Court are more complex than in lower trial courts, with the result that Circuit Court cases usually take longer to resolve than those in the lower trial courts. Circuit Court cases generally require six to 18 months to resolve, although very complex cases can take even longer.
With very limited exceptions, corporations and most other organizations must be represented in Circuit Court by an attorney. Although individuals have the right to represent themselves in Circuit Court, the more complex procedures make it very difficult to do so successfully. There are numerous procedural deadlines to be met, legal arguments to be made, and rules of evidence to abide by.
After a lawsuit and summons is served on the defendant in a Circuit Court case, the defendant has 30 days within which to file a written response. Sometimes the response is a motion to dismiss the lawsuit on technical grounds, but more often the response is a pleading (a legal document filed in court) called an “answer.” The purpose of an answer is to let the court and plaintiff know what issues are in dispute so everyone can focus on those issues. Any allegation in the plaintiff’s petition which is admitted by the defendant does not have to be proved by the plaintiff; conversely, allegations denied by the defendant will have to be proved by the plaintiff. In preparing an answer, the defendant is legally required to admit those allegations of the petition which the defendant knows to be true, but is entitled to deny allegations which the defendant in good faith believes to be false or about which the defendant does not have sufficient knowledge.
Once the factual and legal issues in the lawsuit have been clarified by the filing of an answer, typically the next step in a Circuit Court lawsuit is to conduct discovery. Discovery techniques are outlined above in the court system overview.
When a party to a Circuit Court lawsuit is ready for trial, usually after completing its investigation and discovery, the party can ask the court for a trial date. If the other party or parties are not ready, they can respond by asking the court to postpone a trial setting for a specified period of time. In Boone County, most Circuit Court civil cases are set for trial within three months after a request is made. However, because the Boone County Circuit Court is very busy, the court typically sets a number of cases (as many as ten) on the same day, assigning each case as a first setting, second setting, etc. The court does this because it knows from experience that some 90% of civil cases are settled before trial and that available trial dates would be wasted if only one trial were scheduled per day. Sometimes two or more cases set for trial on the same day are not settled, however, in which event the court usually tries the unsettled case that was assigned the highest priority setting and reschedules the other cases, either later the same day or on another future date. If a case is thus “bumped” to a future date, the court tries to assign it a first setting the next time.
In some Circuit Cases the parties are entitled by law to a jury trial, and the rule is that the court will try the case with the jury unless both parties specifically waive a jury. In other cases, the parties are not entitled to a jury trial and must accept trial by the judge – a good example is dissolution of marriage cases.
Appeals are available in almost all Circuit Court cases. The Missouri Court of Appeals hears most of these appeals. In rare cases, usually involving constitutional issues or matters relating to Missouri’s tax laws, appeals can be filed directly with the Missouri Supreme Court.
As might be expected, given the more complicated nature of litigation in Circuit Court, such cases usually are more expensive than cases in lower trial courts. If a client is paying an attorney on an hourly fee basis, the process of filing, preparing and trying a Circuit Court case can easily cost $5,000 to $10,000, with complicated cases potentially costing several times that amount. Additional costs and expenses may be incurred for expert witnesses, among whom physicians are typically the most expensive. Therefore, parties to a civil lawsuit in the Circuit Court need to make a careful assessment of the merits of pursuing the litigation and balance that against the anticipated costs of litigation.
U.S. District Court Cases
Some types of civil litigation that can be filed in state court may also be filed in the United States District Court. Other cases, typically involving federal laws, can only be filed in the U.S. District Court, the trial court in the federal system.
Occasionally a case filed in state court may be “removed” to U.S. District Court. This occurs when an out-of-state defendant is sued, in which case that defendant may have the right to have the case heard in federal court upon request. The principle behind removal is to avoid possible local prejudice against an out-of-state defendant.
In Central Missouri, the U.S. District Court sits at Jefferson City, 30 miles south of Columbia, although occasionally attorneys are required to attend hearings at the U.S. District Courthouse in Kansas City.
Although there are many similarities between procedure in state court and U.S. District Court, there are also some important differences. One difference is that U.S. District Court juries usually consist of only 6 members who are drawn from all over Central Missouri, whereas in state court juries consist of 12 members drawn solely from the county in which the case was filed. Another difference is that U.S. District Court rules require many more voluntary disclosures by parties and pre-trial filings of witness and exhibit lists.
When there is a choice between filing a case in state court or U.S. District Court, the decision should be thoroughly considered by the attorney and client based on which venue may be more advantageous for the client. One consideration may be that state court cases sometimes move more slowly than federal court cases, although this can vary from county to county within the state court system.
Although Scott Law Firm’s primary focus is on serving landlords and property managers, we also occasionally handle name changes.
While it is possible under Missouri law to adopt a new name simply by consistently using the new name, in most cases it is preferable to obtain official approval of a new name, usually through a court action.
There are at least five methods to change a name in Missouri, one of which actually involves federal law. They are:
- Dissolution of Marriage
- Custom and Usage
- Statutory Change of Name
These methods are discussed in more detail below.
An adopted child’s name can be changed at the time he or she is adopted if the adoptive parents so request.
Dissolution of Marriage
Missouri courts have consistently allowed women to change their names in dissolution proceedings to their maiden name or some other prior name. Occasionally, however, a judge will deny a name change in dissolution case when there is concrete evidence that the change would harm other persons, such as a child or children of the marriage.
A person becoming a U.S. citizen may have his or her name changed by the federal court as part of the naturalization proceedings. (Note: Scott Law Firm does not practice immigration or naturalization law, but can refer interested persons to attorneys who do.)
Custom and Usage
Under the common law handed down from England, Missourians can adopt any name they choose by custom and usage without a court order, so long as the new name does not interfere with the rights of others and is not adopted with fraudulent intent.
This common law right has not been displaced by the statutory name-change procedure described below, but it is not generally recommended because of the uncertainties involved. There is no definitive Missouri case law deciding how much usage of a new name is necessary to accomplish a change, so there will always be an indefinite period of time during which a person using this method will be using a name not yet legally his or her own before there has been sufficient usage to establish the new name. This can lead to certain problems including:
- Running the risk of violating a Missouri statute that makes it illegal to do or transact business in Missouri under any name other than the true name of the person without public registration of the other name.
- Proving the change of name to state and federal agencies and private businesses. For example, obtaining a new driver’s license, changing the name on a Social Security account, obtaining a new passport, and opening or changing bank accounts may be difficult if not impossible.
The only circumstance in which adoption of a new name by usage is generally accepted without question is when a woman follows the long-standing custom of adopting her husband’s surname upon marriage. Since the custom is so firmly established, most of the problems mentioned above are not present, but the new name should be used continuously and exclusively. (Note: Under Missouri law there is no legal requirement for a woman to change her name upon marriage.)
Statutory Change of Name
To avoid the problems inherent in adopting a new name by usage, Missouri law provides a method to change a name through court action. The procedure is relatively simple for adults, but complications can arise when changing a child’s name.
For an adult the name-change procedure starts with filing a petition with the court in the county where the person resides. Information required in the petition includes:
- The petitioner’s present name and the proposed new name.
- The reason for seeking the change.
- The petitioner’s date and place of birth, father’s name, and mother’s maiden name.
- If the petitioner is married, the spouse’s name and the names and ages of the petitioner’s children, if any, and their residence.
- If the petitioner’s name previously has been changed, when, where and by what court.
- Whether there is any unpaid monetary judgment against the petitioner, and, if so, the name of the case, the case number, and the name and location of the court in which the judgment was granted.
- Whether any lawsuits seeking monetary damages are pending against the petitioner, and, if so, the name of the case, the case number, and the name and location of the court in which the case is pending.
Within a month or so after the petition is filed, the petitioner and his or her attorney must appear in court for a brief hearing. Most adult name changes are granted by the court without question at this hearing.
The court has limited discretion in denying name changes. Missouri law says that the court can deny a change only if there is evidence that third parties, including the state, might be harmed. For example, the court could deny a name change:
- If the petitioner seeks the change to avoid paying debts owed to creditors. (This is an example of a change harmful to third parties other than the state.)
- If the requested new name is bizarre, obscene or offensive, or is the same as the name of a governmental entity. (These are considered harmful to the state or public at large. Imagine the potential mischief if a person’s name were legally changed to “Department of Revenue.”)
The narrow discretion of a court to deny a name change is illustrated by a case in which the trial court’s refusal to change a petitioner’s first name to “Sunshine” was reversed on appeal. The appellate court held the trial court abused its discretion because the requested name was not particularly bizarre, obscene or offensive, and there was no evidence of harm to any third parties.
If the judge approves the name change at the hearing, the judge signs a name-change decree. The final legal step in the process is that notice of the court-approved name change must be published in a local newspaper once a week for three weeks.
After a name change is granted, the new name should be used exclusively. The person will need to notify numerous persons and agencies of the change, including tax authorities, voter registration office, drivers license and vehicle registration office, Social Security Administration, banks and creditors, most of whom will want a copy of the name-change decree.
Occasionally a person using the court-approved name-change process also wants his or her birth certificate altered. The Missouri Bureau of Vital Statistics is authorized to amend a birth certificate upon receipt of a certified copy of a name-change decree.
The procedure for changing a minor’s name through court action is similar, but there are some additional complications and procedures, summarized as follows:
- Because children under 18 cannot file court actions, the name-change petition must be filed by an adult – usually a parent or guardian – on behalf of the child.
- Unless both parents consent to the name change, the parent seeking the change must formally notify the other parent of the proposed change at least 30 days before the name-change hearing.
- If the child’s name is not being changed to a name different from that of the child’s non-petitioning parent, or if the non-petitioning parent has consented or does not object to the change, the name-change hearing is typically brief and the change is usually granted. However, if the non-petitioning parent contests the change, the hearing could be more lengthy and the results uncertain. The controlling standard is the best interests of the child. In applying this standard, the court can consider factors such as:
- The child’s age
- The potential embarrassment or discomfort the child might experience if his or her surname is different from the custodial parent’s surname
- How the name change would affect the child’s relationship with both parents
Transgender Name Changes
Scott Law Firm has successfully assisted male-to-female and female-to-male transgender individuals in obtaining name changes through the statutory name change process. This is most often done before the individual embarks on a period of living full-time in the desired gender role before undergoing gender reassignment surgery.
Some judges are less receptive than others to transgender name changes, and there can be complications in such cases that do not occur in routine name changes. For these reasons, it is recommended that transgender individuals retain an attorney with experience in this area of practice.
Transgender individuals should be aware that after gender reassignment surgery has been performed, Missouri law allows a second legal action to be filed in court to obtain an order that the individual’s birth certificate be amended to reflect the changed gender.
Copyright © Scott Law Firm Professional Corporation