The process of deciding how to take an intact family and suddenly structure a new arrangement for two households can be daunting for a court. Fortunately, Missouri law gives very specific guidelines in helping a court reach this difficult decision.
Courts must make two different types of custody awards – legal custody and physical custody. Legal custody involves the right to participate in the decision making process with respect to the health, education and general welfare of the child. Legal custody can be either joint, where both parents make decisions together, or sole, where one parent, after consulting with the other parent, makes the decisions. Courts are instructed that Missouri has a preference for joint custody, but may award it only when it finds that the parents have the ability to co-parent cooperatively together and in the best interests of the child. If parents have a disagreement in a joint custody situation, the court will provide a dispute resolution procedure, which usually involves the designation of a mediator who will help the parents reach agreement. Importantly, even in sole legal custody situations, the parent who makes the decisions must share information with the other parent and get that parent’s input prior to key decisions, wherever possible. Missouri law takes the position that the more involved and invested in decisions both parents are, the better the outcomes for the children.
Physical custody involves the amount of actual time the children spend in the physical custody of each parent. A court may make an award of joint physical custody, where both parents have roughly equal periods of time with the children, or sole physical custody with visitation, where one parent has the bulk of the custody time and the other parent has a smaller but defined schedule of time with the children. Missouri has a policy that favors frequent and meaningful contact with both parents, which tends toward joint custody, but also toward custody schedules that try to avoid going too long between the time a child sees one parent, unless absolutely necessary because one parent lives out of state or in some way poses a risk of harm to the child.
In deciding between these options, courts can go as follows: joint legal, joint physical; joint legal with sole physical to one parent; sole legal and joint physical; sole legal and sole physical with visitation to one parent. In those situations where a parent is deemed a risk of harm to the child, visitation may be supervised and limited.
To make a custody determination, a court must consider and address at least eight specific factors: (1) the wishes of the parents and their proposed parenting plans; (2) the child’s need to have a meaningful relationship with both parents, as well as the ability of the parent to facilitate that relationship; (3) the interaction and relationship of the child with the parents, siblings and others who may impact the child’s best interests; (4) which parent is more likely to allow the child frequent and meaningful contact with the other parent; (5) the child’s adjustment to school, home and community; (6) any history of abuse, as well as the mental and physical health of all parties; (7) the wishes of the child, where appropriate; and (8) the intention of either parent to relocate.
Above all, the court is to consider which plan is in the best interest of the minor child.
If you have questions about custody decisions in Missouri, contact us – we can help.