Child Custody: How Does a Court Decide?
There are many reasons why parties end up in court to resolve custody matters. Whether you are going through a divorce, or you are an unmarried parent trying to find the right schedule, the case will likely require some court involvement. Typically, before the case is brought to a judge, parties will participate in mediation. You can read more about mediation HERE. When parties are not successful at mediation or settling of the matter prior to the case going to trial, a judge will take evidence and decide the schedule of the child. The schedule must set out when the child will be with mom and dad, a summer schedule, a holiday schedule and more.
Prior to deciding a schedule, the court must decide whether the custody will be joint (both parents) or sole (one parent). There are two different types of custody: legal and physical.
"Joint legal custody" means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority. "Joint physical custody" means an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents. Joint physical custody shall be shared by the parents in such a way as to assure the child of frequent, continuing and meaningful contact with both parents.
The Missouri statute makes clear that joint physical and joint legal custody to both parents, shall not be denied solely for the reason that one parent opposes a joint physical and joint legal custody award. The law further states that no preference may be given to either parent in the awarding of custody because of that parent's age, sex, or financial status, nor because of the age or sex of the child. The court shall not presume that a parent, solely because of his or her sex, is more qualified than the other parent to act as a joint or sole legal or physical custodian for the child.
Once a determination as to joint and sole custody has been made, the court then decides a schedule that is in the best interest of the child. This is based on a non-exclusive list of factors which include:
(1) The wishes of the child's parents and the proposed parenting plan submitted by both;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with 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 child's adjustment to the child's home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;
(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.
The court is not limited to the factors set out above and will look for what is in the best interest of the child. Once the judge has made a final determination, attorneys draft the proper documents to submit to the court for final order. Child custody matters can be complex without an attorney and it is recommended that anyone facing this legal issue hire an attorney to assist in the case. Call us or fill out the form below to schedule a free consultation.
RSMo 452.375