Missouri has a public policy that favors joint legal and joint physical custody. However, at the moment it is not the default legal position, only a preference, and the court chooses between what the parties pursue as their legal strategies. When both parents seek joint custody, the courts have little to sort out. However, when one parent seeks sole custody, the options become more complex; and when both parents seek sole custody, the outcome can seem confusing, as in the recent case of S.F.G. v. A.M.G.
In this case, the mother and father never married. They had a son, four years old at the time of trial, with a variety of medical and developmental issues that required a great deal of attention and coordination with many health providers. Prior to father filing the Petition for Paternity and Custody, the mother had the child exclusively. During the two years the case was pending, the mother filed multiple restraining orders and the court entered six different orders regarding custody and visitation. The father sought sole legal and physical custody, and the mother responded by seeking sole legal and physical custody.
How does a court decide such a case? Missouri law requires the court hear evidence and award custody based on the best interest of the child, and in doing so the court must first consider eight statutory factors—the wishes of the parents as to custody and their proposed parenting plans; the need of the child for frequent continuing and meaningful contact with both parents and the ability of both parents to provide the child the requisite care; the interaction of the child with the parents; which parent seems more likely to allow frequent continuing and meaningful contact with the other parent; the child’s adjustment to home, school and community; the mental and physical health of all parties involved, including issues of abuse; the intention of any parent to relocate; and the wishes of the child.
After considering these factors, the court can award sole or joint legal custody and sole or joint physical custody. In the S.F.G. case, the court had two parents each seeking sole custody. Normally, the court would choose between what the parents request, but by statute, the court can order something else if in the best interest of the child.
Sole custody is not the preferred option, as mentioned. The court generally goes for this option when it sees evidence of a complete inability of parents to work together and make basic decisions of health, education, and welfare for the child. When communication breaks down so severely that the child would suffer, the court must pick one parent to give sole custody.
In this case, the court related many instances of how the parties could not cooperate in basic ways, including using Talking Parents for communicating about the child, and conduct that violated court orders. It found that the several allegations of abuse or neglect by mother against father were unsubstantiated, and no proof of domestic violence during the relationship. The court concluded that the mother seemed the instigator of more of the problems and the less credible witness, and that is what led the court to award father sole legal and physical custody. Interestingly, the court acknowledged that the mother had cared for the special needs of the child and that father had no experience with that or shown a willingness to get up to speed on how to do so. Despite that, the court still felt its award of custody was appropriate because the father testified he would do what he needed to do for the child’s medical care.
The Eastern District affirmed the judgment on appeal. Noting this was not an “easy case, both because of complicated needs of the child but also the difficult history” of the parents, the appellate court determined that the medical needs of the child were not the only factors the statute directs the trial court to consider and that even though father will have to start at “square one” with regard to handling the special needs of the child, the trial court heard the evidence and was in the best position to judge the credibility of the witnesses. In the end, the appellate court found that the balance of the factors still favored the father, or at least substantial evidence did not show otherwise.
This case illustrates the risks associated with an “all or nothing” strategy with regard to custody. It can often lead to both parents looking combative and uncooperative and leave neither looking very good to the court. It can make joint custody impossible to award, even though it would be preferred by both parents over not having custody at all. Parents should think carefully – in this case, a mom who capably cared for the special needs of her child still lost custody, even though the father had no experience caring for these special needs.
If you have questions about legal and physical custody, contact us – we can help.