A bill in the Missouri House of Representatives seems on its way to becoming law – one that would significantly change the types of physical custody awards available to parents and courts.
Currently, a court may award either sole physical custody or joint physical custody. Joint physical custody means “an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents.” However, our appellate courts have struggled with reaching a uniform application and interpretation of this provision, as some courts continue to hold that a parenting plan that gives a parent 4-5 overnights every 14 days qualifies as joint custody.
By contrast, sole physical custody has no official statutory definition but means that one parent has the vast majority of physical custody time and the other parent has reasonable rights of visitation.
HB 229, introduced by Representative Kathryn Swan, seeks to eliminate this confusion by adding the following language to 452.375, the custody statute: “There shall be a rebuttable presumption that an award of equal or approximately equal parenting time to each parent is in the best interests of the child. Such presumption is rebuttable only by a preponderance of the evidence” after considering all the relevant factors currently in the statute. The presumption may be rebutted if the parents reach a different agreement or the court finds a pattern of domestic violence.
The plain language of the statute says to the courts of the State that they must begin with equal or approximately equal parenting time to each parent. It also says that parents should be aware that this is the starting point. It appears the legislature hopes that this language will facilitate more shared parenting arrangements of equal or close to equal time, which the legislature previously found is in the best interests of the child and is consistent with the public policy of the State. It would seem that passage of this bill would make it harder for any parent to deprive the other parent of essentially equal periods of physical custody.
On April 8, 2019, HB229 passed the House by a vote of 119-30 and is now awaiting consideration in the Senate.
We will keep you updated on the progress of the legislation as the legislative session winds down over the next six weeks.
If you have questions about shared parenting and Missouri law, contact us – we can help.