In an earlier post, we described the latest efforts of the Missouri General Assembly to change the laws regarding physical custody. At the time it was introduced, House Bill 724 would have established a rebuttable presumption in all custody cases that each parent should have equal or approximately equal periods of physical custody time with their children, and that a parent seeking a different schedule could only overcome the presumption by clear and convincing evidence – the highest evidentiary standard in civil law, similar to beyond a reasonable doubt in criminal law. As originally introduced, HB 724 would have had the effect of de facto mandating equal physical custody because of the high burden to rebut the presumption.
After committee hearings, the House Committee on the Judiciary introduced a substitute bill earlier this week. The substitute limits the application of the standard only to cases arising out of divorce; paternity suits would not be subject to the rebuttable presumption. Additionally, and critically, the substitute allows the presumption to be rebutted by the normal preponderance of the evidence standard. This means that if a party opposed to equal periods of physical custody can show that it is more likely than not in the best interests of the child, the court can reject the presumption and enter a different schedule of physical custody.
The change in the legal standard for overcoming the presumption is very important, as it allows a trial court more discretion to craft a custody schedule that meets the needs of families where the evidence shows it is more likely than not in the best interests of the child to order equal periods of custody based on the eight criteria set out in the custody statute. However, the change in standard does not mean the rebuttable presumption has no force; to the contrary, it would require all parties and courts to start from that position and puts the burden on an objecting party to show that equal custody is not appropriate. The General Assembly has taken a firm stance in favor of shared custody, but still allowed for discretion to deviate in appropriate cases.
The Missouri legislature wraps up its business at the end of day on Friday, May 12. A flurry of legislative activity happens that last day, and it is hard to predict if this current version of HB 724 will pass both houses and move to the governor for signature. We will let you know next week the fate of the bill.
If you have questions about shared custody in Missouri, contact us – we can help.