Child Custody

How does the court decide who should have custody?

    Issues of child custody can be very complex and confusing.  Most often, you need an attorney to help guide you through the process and fight to preserver your rights.  In general, the guiding principle for the court is what will be "in the best interests of the child." There are many factors for the court to consider in determining the custody issue, including:

        * your wishes and the wishes of your spouse
        * your child's wishes
        * your child's interaction and relationship with you, your spouse, your child's siblings and others
        * your child's adjustment to his home, school and community
        * the mental and physical health of all individuals involved (including any history of abuse)
        * your child's needs for a continuing relationship with both parents and your and your spouse's willingness to meet those needs
        * you or your spouse's intention to move outside the state
        * which parent is more likely to allow the child frequent and meaningful contact with the other parent

Many parents are surprised to learn that misconduct during the marriage is not the determining factor. While misconduct can play a critical role in decisions about property or maintenance, it does not play as important a role in the custody determination (except where a history of abuse is involved). This is because the court's primary concern is, again, the "best interests of the child," which often has little to do with what may seem "fair" to one spouse or the other.

    After considering these factors, the court will either grant joint custody to both parents, grant sole custody to one parent, or, in extreme circumstances (such as where both parents are unfit or unable to be given custody), grant custody to a third party.

What is "joint custody?"

    Joint custody encompasses two concepts: joint legal custody and joint physical custody. "Joint legal custody" generally means joint decision-making responsibility regarding a child's upbringing, including where he goes to school, whether or when he needs medical attention, what religious beliefs he will be raised in, etc. "Joint physical custody" refers to significant amounts of time with both parents, so that the child has frequent and continuing contact with both parents. Missouri's custody statute encourages joint custody arrangements where appropriate.

    Joint custody is usually granted where both parties request it. In such cases, the parties will enter into a "joint custody plan" which includes detailed provisions about the parents' duty to confer with each other about child-rearing decisions and a physical custody schedule. The physical custody schedule may include provisions ranging from more-or-less equal time in residence with both parents to a schedule that calls for the child residing with one parent most of the time and for temporary periods with the other. In addition, the joint custody plan will often contain a provision about mediation of disputes, in the event the parties are unable to agree about a particular child-rearing decision.  Joint custody may also be granted by the court, even if one party opposes the arrangement.

How is "sole custody" different from joint custody?

    When a court grants "sole custody" of a child to one parent or the other, that parent has the sole decision-making responsibility with respect to the child's upbringing, including his health, education and religious training. In addition, the child usually resides with that parent. The parent who is granted sole custody is often referred to as the "custodial parent" and the other parent is referred to as the "noncustodial parent." Like joint custody, the parents in a sole custody arrangement are obligated to exchange information with each other about the child's health, education and welfare. In addition, as part of its final orders in the Decree of Dissolution, the court can require the parties to confer with each other about child-rearing decisions, even though the custodial parent has the final say in such matters.

What rights does the noncustodial parent have?

    The important thing to remember is that noncustodial parents DO have rights.  At the time of the divorce, the court will usually establish a "visitation and temporary custody schedule" that assures frequent contact between the child and the noncustodial parent. This schedule typically provides for the child to visit and stay with the noncustodial parent at least one weeknight per week, every other weekend, alternating legal holidays and four to six weeks of the child's summer vacation. In addition, Missouri law prohibits the custodial parent from removing the child from the state for more than ninety (90) days without court approval or the prior written consent of the noncustodial parent.

    In addition, the dissolution law states that "it is the public policy of this state to assure frequent and meaningful contact with both parents after the parents have separated or dissolved their marriage" and that "it is in the public interest to encourage parents to share decision-making rights and responsibilities of child rearing." The dissolution law encourages meaningful input from and contact with the noncustodial parent by giving the noncustodial parent certain rights, including:

        * The same rights as the custodial parent to obtain the child's medical, dental and school records
        * The right to receive any deficiency slips, report cards or progress reports for the child directly from the child's school
        * The right to a notice, hearing and an opportunity to be heard in the event that the custodial parent seeks court permission to relocate outside the state
        * The right to bring a motion for contempt against the custodial parent who unreasonably denies the noncustodial parent's visitation and temporary custody rights
        * The right to seek a transfer of custody or a reduction or elimination of child support if the custodial parent unreasonably denies visitation and temporary custody rights
        * The right to bring a motion to modify the provisions of the decree in the event the custodial parent moves to another state without first obtaining court permission or the written consent of the noncustodial parent

As you can see, matters of child custody are complex and require an attorney's advice and counsel.  Please call us at (573) 651-1900 or email us to set up an appointment today.
The Clubb Law Firm, LLC., 718 Caruthers, Cape Girardeau, MO 63701
Phone: (573) 651-1900 Fax: (573) 651-1902   Disclaimer
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