Missouri's Presumption of Joint Custody

When it comes to child custody and parenting time determinations, Missouri law recommends joint custody according to Missouri State Statute RSMo § 452.375. Judges in Missouri are urged by the statute to award custody in accordance with what is in the best interests of the child. 

What is joint custody? There are two types of child custody, legal custody and physical custody. In joint legal custody, both parents share the decision-making authority when it comes to matters including the health, education, and welfare of the child. Generally, Missouri Courts will order parents to discuss with each other these decision-making rights and responsibilities.

While legal custody pertains to decision-making, physical custody involves who the child or children reside with. Joint physical custody refers to a decision by the Court awarding each parent substantial, but not necessarily equal parenting time. Parenting time refers to “periods of time in which a child resides with or is under the care and supervision of one of the parents.” Joint physical custody is designed to assure the child has frequent, continuing and meaningful contact with each parent. 

The statute states, “There shall be a rebuttable presumption that an award of equal or approximately equal parenting time to each parent is in the best interests of the child.” What is a rebuttable presumption? A rebuttable assumption is a legal concept that a court accepts as true unless there exists evidence to show otherwise. It shifts the burden of proof to the opposing party to show evidence that will overcome the presumption. So in Missouri family law, the parent who disagrees with an award of joint legal and joint physical custody, has to burden to produce evidence to overcome the presumption this custody arrangement is not in the best interests of the child. 

How can the rebuttable presumption be overcome according to Missouri State Statute RSMo § 452.375? The presumption can be overcome by a preponderance of evidence, including, but not limited to the following 8 factors:

  (1)  The desires of the biological parents of the child as to custody, and the proposed parenting plan created by each parent. A parenting plan is a document submitted to the court by a parent in a custody case which outlines their preferred arrangements for child custody, visitation, and decision-making. It’s not surprising courts strongly consider the wishes of the parents when it comes to custody determinations. 

  (2)  The needs of the child(ren) for “a frequent, continuing and meaningful relationship with both parents” AND the ability and WILLINGNESS of each parent to actively parent as mother or father according to needs of the child. If a parent fails exercise parenting time during a child custody case, the court may take that into consideration when it comes to the final custody judgment.

  (3)  The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests. The Court will consider the child’s relationship with siblings, stepparents, grandparents and others when it makes custody decisions. 

  (4) Each parent’s likely willingness to allow the child frequent, continuing and meaningful contact with the other parent is important. When one parent refuses to allow the other parent the opportunity to parent appropriately, a Court may use this to decrease the offending parent’s parenting time, or otherwise punish them. For this reason, it is important to make considerable effort in facilitating the other parent’s parenting time with the child and not doing anything to interfere with that time.

  (5)  The child's familiarity with the child's home, school, and community.  Generally, when families fall apart, Missouri courts will lean toward minimal disruptions in the child’s life, and this includes where they reside, their school, their neighborhood and family. Just because a child is home schooled or enrolled in online school, the law will not allow this to be the sole determinant that a court considers in awarding custody of such child or children;

  (6)  The mental and physical health of all individuals involved in the family who have any interaction with the child. This specifically includes any history of abuse of any individuals involved in the situation.   Parenting time and custody will be ordered in a way that best protects the child from any further harm from domestic violence or anything else that would put the child in harm’s way;

  (7)  The plans of either parent to relocate their residence with the child.  If one parent plans to move away from the area the child is accustomed to living in, the Court may favor the other, more stable parent, when it comes to awarding parenting time and/or custody;

  (8)  The opinions and wishes of the family, as to the child's custodial arrangement, is often considered as the child enters the teenage years. Generally by age 14, Courts will strongly consider the child’s desires as to where that child wants to reside and with who.

     Frequently Asked Questions

Do Judges in Missouri favor custody for mothers?

No.  Missouri Law pertaining to child custody is focused on what is in the best interests of the child, not the gender of the parent. The law mandates Judges begin with the presumption of joint legal and joint physical custody (50/50), then deviations may be made according the specific facts of the case, especially with regard to the factors listed above.

What if one parent lives in Kansas and the other parent lives in Missouri?

In cases where the parents reside in different states, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCLEA) determines which court has jurisdiction. The appropriate court with jurisdiction is called the “home state,” and it is where the child has lived for the past six consecutive months prior to the filing of the case.

When it comes to divorce or child custody, is there any advantage to filing first, before the other party does?

No, there is no advantage. Court’s are not biased based on who files first and both parties will be given an equal opportunity to present their arguments and evidence to the Court.

Can a child custody decision be changed?

Yes, Missouri Law allows parents to file a motion to modify a custody determination. Missouri State Statute 452.410 states, “the court shall not modify a prior custody decree unless…it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child."

The Men's Center for Domestic Resolution is a family law firm located in Pleasant Hill, Missouri designed to help men in divorce, child custody, and other family law matters. You can reach attorney Robert Davis by calling (816) 287-1530. We represent clients in Cass County, Johnson County, Jackson County and much of the surrounding area in eastern Missouri.