The Different Forms of Custody and What They Mean for You

By:  Brittany E. O’Brien and Heather Rooney McBride

When going through a divorce in which there are children, one of the first things people are concerned about is custody.  Where will the children reside and who will have the ability to make legal and financial decisions for them?  There are two parts of custody, legal (the decision making) and physical (where the child lives).  Every divorce that involves children should address both physical and legal custody, stating whether each is joint or sole.

Sole physical custody means the child will live with only one parent.  That does not mean the other parent is not allowed to see the children or have visitation with the children, but, rather, that the child’s residence is with only one parent.  It is rare that courts in this area grant sole physical custody unless one of the parents is a safety risk to the child or does not have a relationship with the child.  In Missouri, courts feel it is important that a child have a relationship with both parents. This means that even if one parent has sole physical custody, the other, non-custodial parent, will be granted some sort of visitation, although that visitation may be required to be supervised.

Sole legal custody means that only one parent has the ability to make legal decisions for the child.  The parent with legal custody is responsible for enrolling the child in school, for choosing a physician, and for insuring that the child receives all necessary medical care.  The other parent is not prevented from being involved in doctor visits or the child’s school, but if there is a disagreement, the legal custodial parent’s decision will control.

Joint physical custody means the child lives with both parents.  This does not have to mean that the child spends the same amount of time with each parent, just that the child has significant periods of time in which he or she resides with both parents. With joint physical custody, the court will require that one parent’s address be designated as the address for educational and mailing purposes for the child; however, the child will likely consider the houses of both parents as his or her “home”.

Joint legal custody means that both parents are involved in the legal decisions for the child. The parents must work together to determine who the child’s doctors will be, whether the child is enrolled in public or private school, what church the child will go to, and other decisions that directly affect the child’s activity and well-being.

When a court determines custody, it is required to consider all factors, which include: 1) the desires of the parents and any agreement they may have; 2) the needs of the child to have a frequent, continuing and meaningful relationship with both parents; 3) the willingness of each parent to provide for the child’s needs; 4) the interaction and existing relationship of the child with the parents, siblings and other significant people in the child’s life; 5) whether a parent is going to allow the child to continue to build their relationship with the other parent; 6) where the child is used to residing and his/her involvement in the community; 7) the mental and physical health of the child and the parents, 8) any intentions of a parent to relate; and 9) the child’s wishes.  It is a complex decision, that involves much more than simply what the parents want; similarly, while the child’s wishes are taken into account, they are far from the only factor that the Court will consider and are not taken into account much at all if the child is younger than eleven (11) years of age.

It should be noted that custody can be modified.  Unlike other types of cases, domestic cases can be reconsidered by the court upon a motion, but only if the requesting party can show that there has been a substantial change in circumstances.

In any domestic proceeding, with or without children, the choice of an attorney is an important one and should not be taken lightly.  Please contact Rooney McBride & Smith, LLC at 417-708-9681 if you would like to schedule a free consultation.