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Margie: Well, should parents get equal custody of their children after divorce? It is one of the issues continuing to be addressed by Missouri lawmakers. Family law attorney Jonathan Marks with the Marks Law Firm is here this morning with more on the continued push for shared parenting. Good morning.
Jonathan: Good Morning, Margie.
Margie: Yeah, we talked about this, I guess, a few months back. It is now back in the legislature again.
Jonathan: Yeah, previously we were talking about how they were adding language to make things more balanced, so they got rid of terms that would’ve had some form a gender bias towards it, made things more neutral within the custody statute. Now they’re back, sort of, with a more strict situation where they’re basically trying to put into effect that there’s going to be a presumption that there’s a 50/50 custody schedule that parents who go through custody cases either have 50/50 or as close to 50/50 custody time with their children as possible.
Margie: Yeah, and some of the words in there… it has to be clear and convincing?
Jonathan: So, it’s a presumption that you’re gonna walk into court and the court is gonna award you a split custody time. Unless you can prove by clear and convincing evidence that there is a basis as to why the other parent shouldn’t receive 50/50 custody time. And so, in a criminal case, you’d call this beyond reasonable doubt. In a civil case, there’s preponderance of the evidence and then there’s clear and convincing evidence. So, clear and convincing is very similar to beyond a reasonable doubt in a criminal situation.
Margie: And there’s eight different factors involved in that and a couple of them involve drinking, drugs, abuse, things like that.
Jonathan: Yeah, so there’s eight factors within a custody statute and within it, if you’re gonna have to prove things, then you’re gonna have to show within these eight factors that somehow, they’re…form a basis as to why the other parent shouldn’t have his custody time. Three of them really kind of stand out because we’re just hypothecating as to what would be happening before a judge.
But, specifically, what you reference is there is one factor that talks about the mental and physical health of a parent and, obviously, looking at it from whether they’ve been abusive to the other spouse, abusive to a child, abusive towards drugs or alcohol. That is a huge factor. But there’s other things that would come into play. One of them has to do with the fact as is a parent gonna stay in the St. Louis area or are they planning to relocate out of state? And also goes in the fact of how is the other parent been providing adequate custody time? Has there been alienation or is there actually an attempt to co-parent and encourage that relationship? And that’s gonna be a major factor as well if this new legislation would go through.
Margie: Yeah, so if this goes forward and goes through… It’s just in committee now. Is that right?
Jonathan: Yeah, it’s just in it’s very infancy, correct.
Margie: So, probably chances of it getting through this session…we don’t have a lot of time left…
Jonathan: No.
Margie: It’s probably not gonna happen.
Jonathan: Probably low.
Margie: But if this goes through, then that would be what judges would have to go off for cases going forward? You walk in and it’s presumed you’re gonna get 50/50?
Jonathan: That’s what it looks like on paper. You know, like everything else, you never know until you walk in the door. But on paper, the courts are gonna have to be looking at it from that basis and then what then? Does a judge or a lawyer do for purposes of once somebody is trying to rebut the presumption? We don’t know that but it’s gonna make things very interesting and certainly very litigious for purposes of somebody that’s really trying to prove that the other parent shouldn’t have 7 out of 14 overnights as a regular basis for their custody schedule.
Margie: It’ll be interesting to see where this goes. All right, thank you so much, Jonathan Marks.
Jonathan: Thank you.
Margie: Appreciate your time this morning. More information on the Marks Law Firm and shared parenting, if you wanna learn more about that that’s in the Missouri legislature right now, head to the “STL Moms” tab.