Child Custody in Missouri

When parents are divorcing or splitting up, child custody is one of the most emotionally charged issues they have to resolve. All states prioritize the children's well-being in custody decisions, and most of them encourage parenting arrangements that give kids significant time with each parent. But Missouri has gone even further by making equal parenting time the default. Read on to learn when judges may depart from that ideal, and how child custody generally works in Missouri.

Types of Child Custody in Missouri

There are two types of child custody: legal and physical custody.

• Legal custody deals with parents' right to make decisions about a child's upbringing, such as education, extracurricular activities, religion, and health care (including things like vaccinations and mental health treatment).
• Physical custody refers to where the child lives.

Each type of custody may be awarded to one parent (sole custody) or to both parents together (joint custody).

• Sole legal custody means that one parent has the authority to make all the major decisions in a child's life, without consulting or getting the other parent's consent.
• Joint legal custody means that the parents will share decision-making rights, and they must consult each other. However, judges may sometimes award joint legal custody but split up the areas of decision-making—for instance, giving one parent the right to decide where the child will go to church, while the other parent will decide about the health care.
• Joint physical custody means that the child will spend significant (but not necessarily equal) amounts of time with each parent.
• Sole physical custody means that the child will live with one parent. However, the other parent will have reasonable visitation rights, unless that would endanger the child's physical health or emotional development.

(Mo. Rev. Stat. §§ 452.375, 452.400 (2023).)

Missouri law doesn't mention "full custody," but that term usually refers to a situation when one parent has sole legal and physical custody. Courts don't favor full custody, because it runs counter to the goal of fostering both parents' involvement with the children. In order to get full custody, you'd probably have to prove that the other parent is unfit—for instance, because of untreated drug addiction, a history of abuse, or some other condition that would pose a risk of harm to the child.

How to Apply for Child Custody

When you file for divorce in Missouri and have children, the custody issue will be handled as part of the divorce process. You'll need to submit a proposed parenting plan that you believe will be best for the kids (more below on these plans).

If you aren't married to your child's other parent, you may file a separate petition for child custody once you've established the child's paternity.

Custody Agreements in Missouri

Missouri courts encourage parents to work out their own custody arrangements, and most parents manage to do that at some point in the process.

Once you've agreed, you'll submit your joint proposed parenting plan to the court. The plan will include details about your custody arrangements, including:

• the allocation of legal and physical custody
• schedules for when the children will live with or visit each parent, including during vacations and holidays
• how you'll share decision-making about specific issues, including choosing child care and health care providers
• how you'll exchange the children and share the responsibility for transportation
• how you'll communicate with each other about the children, and
• how you'll resolve any future disagreements concerning the children.

(Mo. Rev. Stat. § 452.310.8 (2023).)

Even though Missouri law prefers that parents have an equal amount of time with their children, parents don't have to stick to a 50/50 split of parenting time in their agreement (more on that below).

Temporary Parenting Plans During Divorce

If you haven't been able to agree on a parenting plan by the time you file for divorce (or within 30 days afterwards), the judge must order a temporary parenting plan as soon as possible. As long as it's in the child's best interests, the temporary custody arrangements should ensure that both parents will participate in decision-making and have frequent and continuing contact with the child.

Usually, the temporary plan will stay in effect until your divorce is final. But the provisions in that plan won't establish any custody preferences for the final custody decisions. In other words, the judge (or the parents) may decide on a different post-divorce parenting plan than the temporary one. (Mo. Rev. Stat. § 452.310.9, 452.375.4 (2023).)

Missouri's Equal Parenting Presumption

Unless you can settle the custody issue before your case goes to trial, a judge will hold a hearing and decide what custody arrangements would be in the best interests of the child or children.

In 2023, the Missouri legislature changed the way judges make custody decisions by requiring them to presume that it would be best for the child if each parent has equal (or approximately equal) parenting time. That presumption is "rebuttable," meaning that the judge may order unequal parenting time if:

• a parent proves (with a preponderance of evidence) that it would be better for the child to spend more than half the time with one parent
• the judge finds that a parent has engaged in a pattern of domestic violence, or
• the parents have reached an agreement about all of the custody-related issues.

(Mo. Rev. Stat. § 452.375.2 (2023).)

How Do Missouri Judges Make Custody Decisions?

Without an agreement, the judge must decide whether a parent has overcome the presumption for equal parenting time, and which custody arrangements would be best for the child. When making that decision, the judge must consider all of the relevant circumstances in the case, including:

• each parent's custody wishes, and their proposed parenting plans
• the child's need for a meaningful relationship and frequent contact with both parents, and how likely it is that each parent will allow that contact between the child and the other parent
• each parent's ability and willingness to take care of the child's needs
• the child's interactions and relationships with the parents, any siblings, and anyone else who might have a significant impact on what's best for the child
• the child's adjustment to home, school, and community
• the physical and mental health of the child and both parents
• either parent's history of abuse or domestic violence
• either parent's plans to relocate the child, and
• the child's custody preferences, as long as any input from the child is "unobstructed" and "free of coercion and manipulation."

(Mo. Rev. Stat. § 452.375.2 (2023).)

Do Judges Prefer Mothers or Fathers When Awarding Child Custody?

Missouri law does not give either parent a custody preference because gender. The same is true for a parent's age or financial status.

Also, the law specifically says that a judge may not base a custody decision solely on whether a parent has decided to homeschool the child. (Mo. Rev. Stat. § 452.375.2(5) (2023).)

Can You Change Custody or Visitation After Divorce?

Parents' and children's needs change, and those changes can sometimes affect whether the current parenting plan is still in a child's best interests. You may file a motion (written legal request) with the court to modify custody, but you'll have to meet certain requirements before a judge will grant your request. Those requirements are different depending on the type of custody in your existing order and the type of modification you're requesting.

Modification of Custody in Missouri: The Changed-Circumstances Requirement

Under Missouri law, judges may not modify an existing custody order unless the parent requesting the modification proves that:

• since the existing custody order was issued, there has been a change in the child's circumstances or the circumstances of either parent with some degree of physical custody, and
• the requested modification is necessary to serve the child's best interests.

The change in circumstances must be based on facts that happened since the existing order was issued or that the judge didn't know about at the time. (Mo. Rev. Stat. § 452.410 (2023).)

The law doesn't explain more than that. But Missouri courts have provided further guidance for judges and parents. For example:

• The changed-circumstances requirement applies whenever the parents have joint physical custody—even if the child lives most of the time with one parent.
• A parent who's seeking to modify the award of joint custody must meet a higher standard by showing that the change in circumstances has been significant—not something relatively minor. But the change doesn't have to be substantial if a parent is simply requesting a modification in the parenting schedule—what courts have called a "rearrangement" of joint custody.
• Unlike with a request to modify child support in Missouri, the law doesn't require a continuing change in circumstances for a custody modification.
• It's a two-step process to meet the requirements for a custody modification. If a parent can't prove there's been a qualifying change in circumstances, the judge won't even consider whether a modification would be best for the child.

(Hightower v. Myers, 304 S.W.3d 727 (Mo. 2010); White v. White, 616 S.W.3d 373 (Mo. Ct. App. 2020).)

Under one Missouri law, a parent's move to another state will be considered a change of circumstances that would allow a judge to modify custody. However, a court has held that this statute applies only when the moving parent hasn't met the requirements in a separate law for relocating the child's residence. (Mo. Rev. Stat. §§ 452.411, 452.377 (2023); Baxley v. Jarred, 91 S.W.3d 192 (Mo. Ct. App. 2002).)

Some other changed circumstances that might warrant a custody modification include:

• a parent's interference with the other parent's visitation or parenting time
• changes related to a parent's ability to care for the child, such as a new medical condition
• a breakdown in the parents' communication and cooperation with each other.

Just because a child is older, that usually won't warrant a custody modification. But if a child's relationship with one parent has become more strained and difficult over time, the judge might consider the child's wishes and age when deciding whether there's been a change in circumstances. (Margolis v. Steinberg, 242 S.W.3d 394 (Mo. Ct. App. 2007).)

Modification of Visitation

If one parent has sole physical custody, a judge may modify the existing visitation orders as long as that would serve the child's best interests. The parent requesting the modification doesn't need to show that there's been a change in circumstances.

However, Missouri law does set some limits on modifications of visitation:

• A judge may not grant a modification that will restrict a parent's visitation rights unless the visitation would endanger the child's physical health or emotional development.
• Judges may not allow unsupervised visitation with parents (or anyone living with them) who've been guilty of certain crimes against children, including sexual abuse.

(Mo. Rev. Stat. § 452.400.2 (2023).)

If your current custody orders only give you visitation rights but you believe you should now have joint custody (or sole custody), you'll need to meet the requirements for a custody modification (discussed above). That means that you'll first have to prove that there's been a significant change in the child's or the custodial parent's circumstances—not yours.

Enforcing Custody and Visitation Orders in Missouri

Missouri law requires that both parents—and their children—obey all custody and visitation orders. If your ex has kept you from your child when you have parenting time—or has been violating the custody orders in any other way—you may file a motion asking a judge to find your co-parent in contempt of court.

Missouri also provides a simpler and quicker way to ask for enforcement of custody and visitation orders: a family access motion. The law requires that parents shouldn't have to hire a lawyer to help them prepare the forms for this motion, and court clerks should explain the process. The Missouri Courts website also provides instructions and all the necessary forms for filing and responding to a family access motion.

After a parent has filed a contempt or family access motion, a judge will hold a hearing to consider the evidence. Usually, the judge must rule on a family access motion within 60 days after the other parent has received notice of the proceeding. (There isn't a time limit like this for contempt proceedings.)

If the judge finds that the other parent is guilty of violating a custody or visitation order without a good reason, the judge may order any of a number of remedies, including:

• compensatory visitation or custody time for the parent who's been denied time with the child
• requiring the guilty parent to pay the other parent a fine of up to $500
• mandatory counseling for the guilty parent
• counseling for the other parent and child to reestablish their relationship, with the cost paid by the guilty parent
• requiring the guilty parent to post a bond or other form of security to ensure future obedience with the orders, and
• requiring the guilty parent to pay the other parent's costs (including attorney's fees) to enforce the custody or visitation orders.

A parent who's found in contempt of court could also face fines and even jail time.

Also, when judges are ruling on motions to modify custody or visitation, they may consider a parent's violation of any provision in the parenting plan, for the purpose of deciding how much that parent is willing to allow frequent, meaningful contact with the other parent.

(Mo. Rev. Code § 452.400, 476.120 (2023).)

Getting Help With Child Custody

You're usually better off if you and your child's other parent can reach a custody agreement rather than going to trial. Not only will it be less stressful for everyone involved—especially the kids—but it will almost always mean a big savings on the cost of divorce or post-divorce legal battles over custody. If you're having trouble agreeing on the details, custody mediation could help you resolve your differences.

In fact, a judge in Missouri may order the two of you to participate in mediation if you haven't agreed shortly after you file for divorce (or start another legal custody proceeding). And some local Missouri courts require mediation in all contested custody cases unless the court waives that requirement—for instance, when mediation would be inappropriate because of a history of domestic violence in the family. (Mo. Rules Civ. Proc., rule 88.04 (2023).)

But if mediation doesn't work, you should strongly consider speaking with an experienced local family lawyer. Legal battles over custody can be complicated, and they may require custody evaluations. Also, Missouri's presumption for equal parenting time can create an extra burden for parents who believe that arrangement would be harmful for the kids—such as in families with a history of abuse, neglect, or domestic violence. Whatever type of custody arrangement you're seeking, you'll need help navigating the process and coming up with the kind of evidence needed to convince a judge that what you're requesting is best for your child or children.