Child Custody and Divorce – Part One

St. Louis Divorce Attorney, Jonathan Marks

Last week we discussed some of the repercussions of a high profile divorce in the context of Brad and Angelina. We noted that their divorce likely focuses on child custody rather than property or support. In this post, we discuss the types of custody a court must address in Missouri and the possible choices. In the next post, we discuss how Missouri courts might handle some of the issues in the Brad and Angelina case.

In Missouri, courts must decide two key aspects of child custody – legal and physical. Legal custody refers to the right to make decisions with respect to the health, education and welfare of the child. Physical custody refers to the periods of time wherein a parent has actual temporary custody of the child.

Legal custody may be joint or sole. In joint legal custody, both parents participate equally in the decision making process and collectively resolve issues of health, education and welfare. Joint legal custody presumes that the parents can work together to act in the best interest of the child. When parents cannot work together to make decisions, the court will award one parent sole legal custody. While a sole legal custody award gives one parent all the authority, it still usually requires that parent to consult with the other parent wherever possible.

Physical custody may also be joint or sole. In joint physical custody, both parents have significant though not necessarily equal periods of time with the child. In sole physical custody, one parent has the vast majority of physical time with the child and the other parent has reasonable periods of visitation.

In Missouri, we have a stated legislative preference for joint custody in both the legal and physical aspects. Indeed, after new laws that went into effect earlier this year, Missouri has a stated preference for equal participation and equal time, and courts must state their reasons for departing from this presumed norm.

In every case, a court must make an award of legal and physical custody that is in the best interests of the child – that is the governing standard. While that may seem a bit vague, our legislature has given courts specific guidance by requiring the courts to consider a variety of factors, including the wishes of the parents, the relative fitness of the parents, the ability of each parent to provide adequately for the needs of the child, the ability of each parent to allow frequent and meaningful contact with the other parent, the wishes of the child if the child is old enough to form and express such wishes, and the involvement of family and other key individuals in the life of the child. Also, the courts are required to issue a specific parenting plan that sets out the physical schedule of custody, including certain holidays and summers, as well as guides for exercising legal custody.

While it may seem easy – start at 50-50 or joint-joint and move from there – every case presents unique aspects and how to structure a joint schedule can be tricky. Further, other circumstances may render a joint arrangement impossible, and courts must use their discretion to act in the best interests of the child. In the next post, we will show how that could play out for Brad and Angelina.

If you have questions about child custody and divorce, contact us – we can help.