Child Custody: Basics and Updates

Child Custody: Basics and Updates

By:  Austin E. Williamson and Heather Rooney McBride

 

It is not surprising that one of the most highly contested issues in a divorce proceeding pertains to children and which party will ultimately be awarded “custody.”  It is equally unsurprising that based upon Missouri’s somewhat complicated custody system, there is a general misunderstanding about what exactly custody is, what the Court looks at in determining custody, and what that means for you.

First, custody is generally considered in two major categories; namely, legal custody and physical custody. Legal custody concerns how major decisions are made for minor children and the parties’ ability to participate in the decision-making process regarding those major decisions (e.g. school, religion, medical procedures, sports, driving privileges, sex education, etc.).  Physical custody addresses the contact between the parties and the minor children or, in other words, where the minor children spend their time.

Legal and physical custody generally come in two distinct “flavors”: sole custody or joint custody.  When applying these categories to legal custody, either both parents share the major decision-making rights, responsibilities, and authority relating to the minor children (joint legal custody) or one party makes all the major decisions for the children without the need for input from the other parent (sole legal custody).  Similarly, with respect to physical custody, either both parties have significant or meaningful contact with the minor children (joint legal custody) or one party is not granted substantial contact with the children, meaning his or her time with the minor children may be more limited or restricted (sole physical custody).  To make things a little more complicated, the Court may award any combination of sole or joint custody as it relates to physical or legal custody.

So, how does the Court decide which custody arrangement is best for the parents and the children?  To start, on August 28, 2016, House Bill 1550 was signed into Missouri law with slight (but important) modifications to the previous custody statute.  See RSMo § 452.375 (2017).   The new law serves to encourage the increase of shared parenting of minor children between both parties. Under the new law, the court must also consider relevant factors, including, but not limited to: (1) the wishes of the parties; (2) the needs of the children for a frequent, continuing and meaningful relationship with both parents; (3) the interaction and interrelationship of the children with the parents, siblings, and any other person who may significantly affect the child’s best interests; (4) which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent; (5) the children’s adjustment to the child’s home, school, and community; (6) the mental and physical health of all individuals involved; (7) the intention of either parent to relocate the principal residence of the child;  and (8) the wishes of a child as to the child’s custodian.  Importantly, the law prohibits a court from presuming that one parent, based solely on his or her age or sex, is more qualified than the other parent to act as custodian for the child.  However, while the court can and should consider any relevant factor when it comes to child custody, the touchstone in all custody cases remains the “best interests” of the minor child.

Despite the various possible custody designations, what is expressly set out in a Judgment or the Parenting Plan is more important.  Anyone dealing with a custody dispute should retain counsel to ensure a favorable parenting time schedule and a plan that specifies his or her rights to the children.  It is vitally important to know your rights, obligations and options when working through a custody matter.  The choice of an attorney is an important one.  Please contact Rooney McBride & Smith, LLC at 417-708-9681 if you would like to schedule a free consultation to discuss a custody arrangement for your family.