Last year, the Missouri General Assembly passed significant family law reform for the first time in many years. One of the key provisions involved redefining the public policy of the state to more clearly favor not just joint custody but seeming to hint at a preference for equal periods of physical custody.
This year, the General Assembly seeks to make shared parenting unequivocally the norm for all custody disputes. In both SB 377 and HB 724, the proposed legislation would add the following language to paragraph 2 of Section 452.375 the governing custody statute: “There shall be a rebuttable presumption that an award of equal or approximately equal parenting time to each parent giving the child equal or approximately equal access to both parents is in the best interest of the child. Such presumption is rebuttable only by clear and convincing evidence in accordance with the factors contained in subdivisions (1) to (8) of this subsection.”
If adopted, this new law would bring profound change to the discretion a court has to grant custody. Currently, a court, while encouraged to begin from joint legal and joint physical custody, may still consider the statutory factors and enter an award that it believes is in the best interest of the child. The new legislation takes much of this discretion away: it requires the court to start with equal parenting time and may only depart from that if the court finds clear and convincing evidence it would not be in the best interest of the child. “Clear and convincing” is the highest evidentiary standard in civil cases, much closer to the “beyond a reasonable doubt” standard in criminal law than the normal “more probable than not” standard in nearly all civil cases.
If passed, judges would no longer have wide ability to award anything beyond strict 50/50 physical custody. Only in cases of abuse or where the overwhelming evidence shows that 50/50 time would be adverse or harmful to the child would the judge have the ability to make an award of sole custody or joint custody where the time was more like 60/40 than 50/50.
Some may see this move as too limiting, and that judges need the freedom to craft plans that suit a particular family. Others may see this move as long overdue—that children need both parents equally involved in their lives after divorce.
The National Parents Organization, an advocacy group for shared parenting, supports this legislative effort and cites numerous social science studies that show that shared parenting – meaning equal physical custody time with each parent – results in children that are physically and emotionally healthier than those in more unequal custody plans.
The proposed legislation has just had a committee hearing, so it is still early in the process. We will keep track of the legislation’s progress and post updates on the blog.
If you have questions about shared parenting, contact us – we can help.