Family Law

How do Judges Decide Child Custody in Missouri

By Amy Castillo, J.D., University of Minnesota School of Law
Learn about the different kinds of custody and visitation, and how Missouri judges decide custody cases.

Child Custody and Visitation in Missouri

If you’re a parent and you’ve broken up with your spouse or partner, you’re probably feeling overwhelmed with grief over your loss and fear about what the future holds. The first and best step you can take is to educate yourself about custody law and court processes, so you can ensure that your children are as safe and happy as possible regardless of the breakup.

What is the Difference Between Legal and Physical Custody?

Missouri’s General Assembly has declared that the public policy of the state is that parents and children should continue to have close, meaningful relationships after a divorce or separation and that parents should work together to make important decisions for their children. The Missouri General Assembly made it very easy to understand the different types of custody because it explicitly defines custody as follows:

  • Physical custody refers to where a child lives, spends a lot of time, and receives basic daily care.
  • Legal custody is a parent’s right to participate in making major medical, dental, cultural, educational, and spiritual decisions for the child.
  • Joint legal custody means that the parents share decision-making rights and responsibilities relating to the child’s health, education, and welfare, and that the parties cooperate with each other to make major decisions.
  • Joint physical custody is when each parent has significant, but not necessarily equal, periods of time when the child lives with each parent.

Based on this, the family courts are charged with preparing a final custody and visitation order that, to the extent possible, ensures that both parents are involved in the child’s life. The order is part of an overall “parenting plan,” which contains the exact terms of how custody and visitation will be shared and outlining each parent’s specific rights and responsibilities.

An award of joint custody means that the parents have to be able to cooperate with each other and share information about the child. If parents can’t get along or have a history of domestic violence, it’s unlikely the judge will award joint custody.

If the judge does award joint custody, the parties have to share information about the child’s health, education, and welfare with each other. If a parent tries to withhold that information, the court can hold that parent in contempt and make the parent pay the other parent’s attorney’s fees, court costs, and other financial penalties.

What Is Visitation?

Generally speaking, visitation is a court-ordered, scheduled time when a noncustodial parent is able to be with the kids physically (for example, during summer breaks or weekend visits) or, perhaps, call them on the telephone or speak through real-time video call apps like Skype or FaceTime.

Unless the parents request something different, the judge will usually divide up holidays on an alternating year-to-year basis to make sure that children are able to spend special holiday time with each parent.

If a parent who is entitled to visitation abuses drugs or alcohol or has a history of abuse or neglect, the court will structure its custody and visitation order to make sure the kids are protected. A judge may order supervised visitation, where a third party observes each visit at a neutral location to make sure the child is safe.

It’s rare for the court to suspend visitation completely, and that only happens in cases where visitation would pose an immediate and major threat to the child.

Because Missouri’s official public policy strongly encourages both parents to be involved in the child’s life, you should never unilaterally (meaning, by yourself) try to prevent your ex from exercising court-ordered visitation. If you do, you can be subject to sanctions (judicial punishment) or possibly charged with a crime. That said, if you believe your child would be immediately and physically endangered by visiting with the other parent, you should contact an experienced family law attorney and consider requesting an emergency custody order.

Can Parents Agree to Their Own Custody and Visitation Arrangements?

The court will always encourage parents to resolve their custody and visitation disputes on their own. In fact, it’s much better to reach a compromise on custody if you can. Once the courts are involved, your child’s fate will be decided by a judge who’s educated and dedicated to the law, but is still a stranger to you and your family. The judge doesn’t know you personally and you might be terribly dissatisfied with the decision. On the other hand, if you and your ex can reach an agreement, you can make your own choices and retain control over your life.

You should consult with an experienced family law attorney if you’re embroiled in custody or visitation problems, but if you’re going to handle the case yourself, the Missouri Judicial Branch's guide to self-representation is a good place to start.

How Do Judges Decide Custody Issues?

When parents can’t agree about custody and visitation, a court will have to order and arrangement that’s in the child’s best interests, regardless of how a parent might feel about it. To make a decision about what’s best for the child, the judge will listen to testimony and receive evidence from both sides and apply the testimony and evidence to the following factors:

  • each parent’s wishes, and their proposed custody, visitation, and parenting plans
  • the child’s need for frequent, continuing, and meaningful relationships with each parent
  • the ability and willingness of each parent to actively perform parental functions and provide for the child’s needs
  • the child’s relationships with each parent, any siblings, and anyone else who’s important in the child’s life (example: grandparents)
  • which parent is more likely to allow the child to have continuing and meaningful contact with the other parent
  • how well the child is adjusted to home, school, and community
  • the mental and physical health of everyone involved
  • any history of domestic abuse
  • whether either parent intends to relocate with the child, and
  • the child’s wishes, if the child is old enough to express a mature preference.

The judge’s analysis of the law and facts doesn’t end here, though. Before the court can make a final custody award, it has to consider whether the child would be best served by:

  • joint physical and joint legal custody to both parents
  • joint physical custody to both parents and sole legal custody to one parent
  • joint legal custody to both parents and sole physical custody to one parent, or
  • sole custody to either parent.

The judge will write a detailed order with findings about each of the factors based on the evidence presented at trial. The court will, in its order, explain how each factor led to the judge’s conclusions and to the allocation of custody and visitation. The judge can’t rely on one factor to the exclusion of all others. For example, the judge can’t rely solely on the fact that a child is being educated in a “home school.” The court also can’t give a preference to either parent based on age, sex, or financial status. If there’s a documented history of domestic violence, the court will write its order in a way that protects both parents and the child from harm.

Case Law

Looking at how judges applied the law in past Missouri custody cases can help you understand how the courts decide what kind of parenting plan to implement.

In one case, a couple married and had one child. The husband had an aneurysm and thereafter he suffered from a serious medical disorder that caused sudden seizures. Four years later, the couple divorced. The parents had a history of disagreeing with each other about critical issues like the child’s naps, diet, medical treatment, and preschool. The judge gave sole custody to the wife and awarded the father regular visitation. Because the father’s condition was serious and his health had a detrimental impact on his ability to care for a young child, visitation had to be supervised by the father’s parents and the father also had to furnish the mother with quarterly reports from a neurologist about his medical condition.

In another case, a couple had two children and divorced after four years. Their son was diagnosed with cerebral palsy and received regular occupational and physical therapy. The father was employed by a soft drink company, and the mother had only an eighth-grade education and had been diagnosed with bipolar disorder. Due to financial instability, she was unable to provide a secure, stable home for the children. Additionally, the parents were so unable and unwilling to get along with each other, and got into so many verbal and even physical altercations, that the court decided that any kind of joint custody “is not appropriate.” The court then gave sole physical and sole legal custody to the father.

Modification of Custody and Visitation

Even though the court will give you a “final” custody and visitation order, you may find that your circumstances later change in such a way that the original order no longer works for you and your children. If that happens, you’ll have to file a motion to modify (or change) the existing order. Unless it’s an emergency, the judge will normally make you wait a while between the issuance of the final order and filing a motion for a change of custody.

The parent who asks for a modification has to prove that there has been a change in circumstances since the final order was issued. The change has to be substantial. If that’s proven, the court will then decide whether modifying custody or visitation is in the child’s best interests.

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