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Host: Well if you have children and are getting a divorce or have been through a divorce, you are likely familiar with the phrase, “joint physical custody,” but what does it mean in Missouri? Family law attorney Jonathan Marks with The Marks Law Firm is here to explain why this national movement is underway that could change this term. Right, Jonathan?
JM: Yeah, there’s a group that’s trying to essentially make joint physical custody become the norm. In essence, changing that instead of a court having to determine whether there’s a sole physical custodian or a joint physical custodian, that in essence, we are just going to use the term equal parenting time.
Host: So what is joint physical custody right now in the terms of law mean?
JM: So in essence it’s stating that the parents share and in essence are similar to having a 50/50 custody situation from a shared time. It doesn’t necessarily mean that it’s equal, meaning let’s say 7 out of 14 overnights for each parent. But it means it’s significant enough that in essence the court believes that they are somewhat equal for purposes of the shared physical custody time that the children are with them.
Host: But is the problem depending on which court you’re in? What division you’re in? Depending on the judge?
JM: Yeah, that can happen absolutely. A court is supposed to look at specifics and start at joint–joint meaning; joint legal, joint physical custody and then proceed for other options going there. But you know, each judge is human and they have their own biases and certainly some judges are going to start at 50/50 and some may start at 5 out of 14 overnights for one of the parents and consider them the visitation parent.
Host: So this equal parenting law, 18 states looking at it?
JM: 18 states have looked at it and 2, Utah and Minnesota, have actually passed it and Missouri is now considering it in its legislature. It started in a bill last year, it was originally rejected by the Missouri Bar Association on their recommendation as a legislature and now it’s back before the Bar to consider again at their meetings and then, subsequently, go before the legislature for a vote.
Host: What are some of the pros and cons that have been brought up within the Missouri Legislature about this?
JM: It depends on how you want to view the situation. Some people are viewing it as it creates fairness because basically it’s saying that everyone when they walk into court whether you’re a man or woman is walking in on equal footing. So in essence, what someone would view as a loss when they walk out of court because they become an essence that the visitation parent. If the other parent receives sole physical custody, that terminology would be lost. On the other hand, on a negative standpoint, if you’re not that perfect situation you don’t believe that he’s a good dad or she’s a good mom and you’re walking in knowing that you’re starting at 50/50. Your burden has shifted. So, instead of you walking into court and really having to tell the court what you believe is in the best interest of the child will then allow the court to have a more open perspective. The court is now going to have to start at 50/50 and you’re gonna have to chop down a wall so to speak for purposes of getting it down to what you think is what’s in the best interest of your children.
Host: Now under this they have said it would not start 50/50 obviously if there has been abuse, or drugs, and things like that.
JM: We don’t know that yet. Realistically today there are provisions within let’s say you’ve been convicted of a particular felony that prevent you from having anything other than supervised visitation. There are things contained within there. We don’t know what the final law would look like for purposes of knowing specifically the language contained they’re in. In essence, the concerns been raised through these 18 states have had proposed is that you’re walking into a situation where if you’re saying that if this a default, then why aren’t you taking into consideration whether someone’s psychotic, somebody is on drugs, someone has an alcohol problem, they’ve been physically abusive. These things then become more matters you’re having to prove to the court to reduce time as opposed to things you’re bringing to the court upfront so it can make its own open decision.
Host: It’s certainly interesting, equal parenting law, to talk about. You’ll keep following it in the legislature, let us know how it turns out here in May. Jonathan Marks, thank you so much. For information about The Marks Law Firm, head to STLMoms.com.