Can Children Express Preference in Missouri Custody Proceedings?

Learn whether a child’s custodial preference has any effect on custody in Missouri.

By , Retired Judge

Missouri has joined a growing number of states that have sought to eliminate the winner-take-all mentality that was often associated with custody cases. To that end, the state's custody laws were revised in 2018. It's now the public policy in Missouri that it's in a child's best interest to have frequent, continuing, and meaningful contact with both parents after the parents have separated or divorced. Additionally, parents are encouraged to participate in decisions affecting their children's health, education, and welfare. (Missouri Revised Statutes - Title XXX - §452.375 (4).)

Types of Custody in Missouri

There are various custody options, which can be combinations of "legal custody" and "physical custody". Legal custody relates to making decisions regarding the child's upbringing, such as education choices, religion, and non-emergency medical care. Physical custody refers to where the child is going to reside.

Legal custody and physical custody can be broken down into "sole" custody and "joint" custody. "Sole legal custody" means that only one parent has authority to make the major decisions in a child's life. "Joint legal custody" gives both parents a say in the decision-making process, and requires the parents to consult with each other.

With "sole physical custody", the child lives with one parent. "Joint physical custody" means the child resides with each parent for certain periods, which can range from a few days a week to literally half-a-year with each parent. (Missouri Revised Statutes - Title XXX - §452.375 (1).)

How Custody is Determined in Missouri

The "best interests of the child" is at the heart of any court decision regarding custody. When determining custody, the law requires judges to consider all relevant factors, including but not limited to:

  • each parent's wishes as to custody
  • the child's need for a meaningful relationship with both parents
  • each parent's ability and willingness to perform their functions as mother or father for the child's needs
  • the child's interaction and relationship with parents, siblings, and anyone else who affects the child's best interest
  • which parent is more likely to allow the child 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 individuals involved
  • either parent's history of domestic violence
  • either parent's plans to relocate the child, and
  • the child's wishes for custody. (Missouri Revised Statutes - Title XXX - §452.375 (2).)

Can a Child Decide Custody in Missouri?

In terms of the child having the final word, the answer is no. But notice that a child's wishes for custody is one of the factors a judge must consider in deciding a custody case. As with many states, Missouri law doesn't specify an age when the court must consider children's custody preferences. As a general rule, an older child's preference will have more impact than that of a younger child. But that's not set in stone, because no two children are exactly alike. There are occasions where a 12-year-old might be more mature than a 15-year-old. So judges decide how much weight to give a child's preference on a case-by-case basis. In making a determination, a judge will gauge a child's ability to make a sound judgment.

The child's preference doesn't outweigh any other factors in the court's decision. If it's in the child's best interests to be with the non-preferred parent, the court won't hesitate to rule against the child's wishes. In one case, for example, a daughter preferred to live with her mother because she wanted to be near her half-siblings. However, at the mother's house, the daughter would have to share a room with her half-sister and her boyfriend, who were sexually active and had taken illegal drugs in front of the child. The judge ruled against the daughter's preference and gave custody to her father.

Courts also consider the reasons why a child wants to live with a particular parent. The judge must ensure that the child's preference isn't based on temporary whims or anger with a parent. The child's opinion will carry more weight if it's based on mature reasons, such as a closer relationship with one parent, or a parent's involvement in the child's life. Also, the court won't give a child's wishes much weight if the child's preference constantly fluctuates between parents.

A judge will also want to determine whether there's been improper influence on the child. For example, a judge will not look kindly on a parent's attempt to bribe or "buy-off" the child with promises of gifts or similar inducements. Likewise, if the court determines that one parent has been poisoning the child's mind against the other parent, and that's the reason for the child's preference, it's much less likely to give weight to the child's wishes. As an aside, parents who engage in that kind of behavior aren't helping their cause in the judge's eyes.

Another question that tends to come up relates to what age can a child refuse visitation in Missouri. "Visitation" is the time the parent who doesn't have physical custody gets to spend with the child. The law considers an 18-year-old to be an adult. [Missouri Revised Statutes - Title XXX - §431.055] Any child younger than that is a minor, and technically can't refuse to visit with a parent. However, if brought to the court's attention, a judge can determine whether there's a legitimate basis for the child's request.

Do Children Have to Testify in Court About Their Custodial Preferences?

In Missouri, there's a statute that specifically refers to this. Missouri Revised Statutes - Title XXX - §452.385 says that the court may interview the child in chambers to determine the child's wishes as to custody (and any other relevant matters the child may have information about). The attorneys involved in the case may also be present. Courts typically use court reporters or electronic sound recording devices to keep a record of interviews and other court proceedings.

Courts don't usually favor having a child testify in open court. A courtroom can be an intimidating environment for children. If either parent wants to call the child as a witness, it will be up to the judge to determine whether to allow it. As with a child's custody preferences, when making its decision the court will look at the child's maturity level.

The judge may determine a child's custodial preference without speaking directly with the child. For example, mental health professionals who have interviewed the children may testify about their wishes. Sometimes, the judge may appoint a custody evaluator, who meets with the child and prepares a report on custody issues, including the child's preference. Additionally, if the court believes it's warranted, it has the option to appoint someone to directly represent the children's interests in the custody proceeding. This person is referred to as a guardian ad litem. In any proceeding in which there are allegations of child abuse or neglect, the court must appoint a guardian ad litem. (Missouri Revised Statutes - Title XXX - §452.375 (2).)

If you have additional questions about the effect of children's custodial preferences, contact a Missouri family law attorney for help.

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