Paternity and Custody
When parents end their relationship with each other, their relationship with their children does not (or should not) end. Sometimes parents can informally work out a schedule and finances, but more often parents benefit from having a written plan for how to raise the children together called a parenting plan. If the parents are married and divorcing, a parenting plan and child support are established during the divorce. If the parents are not married, a parenting plan can be established through a custody proceeding.
Missouri divides the concept of custody into two parts: legal custody and physical custody. Legal custody refers to the right to make major decisions on behalf of the minor children. Major decisions include, for example, major medical decisions, educational decisions, and what religion the children should be raised in. Physical custody refers to who the child lives with and when.
Missouri law prefers joint awards of both legal and physical custody. Joint legal custody means that both parents share the responsibility of making decisions. Joint legal custodians need to share information with each other and reach an agreement on what to do. A sole legal custodian can in general make the decisions, although there may still be a need to let the other parent know first. Joint physical custody means that the children live with each parent at least some of the time and more than every once in a while. Many people mistake the word “joint” for “equal” or “50/50.” Depending on the child’s age and the schedules of everyone involved, among other things, an exactly even division of time may not be what is best for the kids. Parents can share physical custody even when the schedule that works best for the family does not result in an exactly evenly split schedule. In addition, joint custody schedules can and often should change over time. A schedule that works well for a five-year-old may not work well for a twelve-year-old. In a sole custody arrangement, the children may spend time with both parents but primarily live with one parent. The other parent’s time is called visitation.
In many cases, either through direct discussion, attorney facilitated negotiation, formal mediation or settlement conferences, the parents can reach an agreement on the terms of their shared custody. If they cannot, a judge will ultimately decide who should receive legal and physical custody. The court is always guided by what is best for the child. The Missouri legislature outlined some specific things that a judge must consider:
- The wishes of the parents
- The need to assure a continuing and meaningful relationship with both parents and which parent would be more likely to facilitate that relationship
- The interaction of the child with parents, siblings and other family members
- Which parent would more likely allow frequent, continuing and meaningful contact with the other parent
- The child’s adjustment to home, school and community
- The mental and physical health of both parents, including any issues of domestic violence
- The intention of either parent to relocate
- The wishes of the child, if the child is sufficiently mature to express such wishes.
Only after taking evidence at a hearing or trial and considering all of the factors above will a judge make a final decision. As with any legal matter involving children, custody cases are not win/lose in the same way a law suit over a car accident is. Very few cases are better off having a judge – who is a stranger to you and your family - decide for the parties.
If you need help with a custody matter, you need an advocate on your side who is familiar with the courts, can help you understand the law and the process, and help you achieve your goals with as little time in court as possible.
Please call us or send an email below if you would like to meet in person or by phone with an attorney to confidentially discuss your case.