Courts making custody awards in divorce cases in Missouri must consider, first and foremost, the best interests of the children involved. While every situation is different, a judge will begin by presuming that children benefit from maintaining “frequent, continuing and meaningful contact with both parents” and from having both parents “participate in decisions affecting the health, education and welfare of their children.” (Mo. Rev. Stat. § 452.375.4.)
Missouri law provides courts with guidance by listing some of the factors that a judge should consider in making a decision about what’s in a child’s best interest. These generally fall into a few basic categories:
The safety of the child is always a primary concern. A judge who finds that a parent poses a risk of physical harm either to the child or to another person in the child’s family or household may limit visitation or may order supervised visitation. If a parent or a person living with the parent has been convicted of (or has pled guilty to) certain felonies involving sexual assault or exploitation of a child, the court will not award custody to that parent, and will require that visitation, if any, be supervised. While a parent must be able to provide for a child’s physical needs, a parent’s greater or lesser financial resources aren’t a factor in determining the child’s best interests.
A judge will consider the quality of the relationship between the child and each parent and each parent’s ability and desire to devote time to the child. The age and sex of the parent, and the age and sex of a child, are not considered relevant factors. Courts generally favor stable living arrangements and will consider a child’s current adjustment to home and community, as well as whether or not either parent has a plan to change the child’s current living situation. A court will also consider a child’s adjustment to school, including home schooling, but will not base a decision solely on the basis that a child has been home-schooled. Courts favor arrangements that allow children to maintain relationships with siblings and other people who are important to the child. Missouri courts may also award visitation rights to grandparent if this is in a child’s best interests. If the judge believes that a child is old enough and mature enough to make intelligent choices, then the judge may allow the child to state a preference as to custody.
Missouri law places a strong emphasis on the ability of each parent to foster a positive relationship between the child and the other parent. Unless there is good reason to believe that contact with the other parent is likely to be harmful to the child, the law requires each parent to encourage frequent contact with the other. Courts also expect parents to be able to resolve most disputes with each other amicably, without resorting to unnecessary court actions.
The term “custody” includes both legal custody, which refers to a parent’s authority to participate in major decisions regarding a child’s health, education, or general welfare; and physical custody, which refers to the time that a child is residing with a parent or is under the care and supervision of a parent. Missouri law favors shared parental decision making and frequent contact with both parents, and a court will not deny joint physical or legal custody simply because one parent is against it.
At the same time, a judge is not required to grant joint custody and will consider any combination of legal and physical custody which is in the best interests of a child. Joint physical custody does not necessarily mean that a child will spend equal or even approximately equal amounts of time with each parent. Judges often find that it’s in a child’s best interest to have a primary physical home base, with a parenting plan designating specific times to be spent at the other parent’s home. Even where physical custody approximates a 50/50 time share, the residence of one parent must be designated as the child’s address for mailing purposes and for determining school attendance.
Missouri law requires parents to submit proposed parenting plans either jointly or individually to the court soon after the beginning of a divorce case. This presents an opportunity for parents to work together to come up with a schedule that will work for everyone. Parents should keep in mind that the needs of children change according to age, and plans may need to be modified and adapted as children grow. A plan may include a method for review under specified circumstances, such as when a child reaches a certain age, as well as a method for resolving any disputes which may arise in the future. Where the parties cannot agree on an acceptable plan, the judge will develop one and will detail the factors considered in determining that the plan is in the child’s best interests.