Custody Arrangements

family law attorneyIn a dissolution of marriage case, a motion to modify case, and a paternity case, Missouri recognizes basically two types of custody for minor children, either “legal custody” or “physical custody”.

Legal Custody refers to the decision-making rights, responsibilities and authority related to health, education and the welfare of a child. Legal custody can either be “joint” custody or “sole” custody. Joint legal custody means the parents share the decision making rights and authority. Typically, joint legal custody requires that the parents confer with one another in the exercise of the decision making rights and reach an agreement on how to proceed on major issues involving the child’s health, education or religious upbringing. Where an agreement on issues cannot be reached by the parents, judgments typically provide for alternate dispute resolutions methods, such as mediation. The public policy of the State of Missouri is to encourage parents to work together to make major decisions that affect the children’s health, education and welfare.

While there is a strong preference in the Missouri for joint parental decision-making, Missouri courts have found that joint legal custody may not always be in the best interests of the children. Typically, where the parents have significant differences of opinions regarding educational, religious, or medical matters, joint legal custody may not be feasible. Likewise, if there is a history of violence between the parents, especially physical violence, but sometimes emotional violence, joint legal custody may not be appropriate. The determination of whether the issues between the parents rise to the level of preventing joint legal custody is very fact determinative and every case has to be decided on the issues specific to that case.

If joint legal custody is not feasible, then sole legal custody, with one parent making the decisions, is the usual recourse. However, even with sole legal custody, there typically is a requirement that the person with the sole legal authority still has to confer with or keep the other parent informed about the children’s educational, medical and educational issues. It is not uncommon for parents in high tension cases to be required to communicate by use of on-line programs that are designed to provide easy access to a calendar with the children’s events, a means of addressing expenses for the children, and a means of communicating and sharing information regarding the children. Such on line programs can help address “memory” issues where there is some confusion about what was shared, agreed to, or scheduled.

family law attorneyAs a practical matter, the types of legal custody that parents share can be some variation or hybrid of the above. It is not uncommon to see parents awarded “joint” legal custody, but in the event the parents cannot agree, one parent makes the final decision regarding the issue at hand. Likewise, it is not uncommon for “areas” or “topics” of decision making to be carved out with one parent making the decision about such “areas” or “topics” and the parents having to agree on other matters. (For example, one parent could be the sole decision maker regarding educational matters, but all other matters require agreement by the parents.) Regardless of what type of legal custody arrangement exists, the day to day routines and “minor” decisions for the children are typically handled by the parent who has physical custody of the children.

The other type of custody that Missouri recognizes is “physical custody”. Physically custody refers to the residential arrangements for the children, i.e. which parent do the children reside with and/or who has the care and supervision of the children at certain times. Like legal custody, there are two variations of physical custody, “Joint” physical custody or “Sole” physical custody. “Joint” physical custody indicates that the parents each have 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 is supposed to be shared by the parents in such a way that the children are assured of frequent, continuing and meaningful contact with both parents. (Contrary to a common misconception, joint physical custody does not preclude an award of child support, although the actual number of overnights each parent has with the children can impact on child support). By implication “sole” physical custody theoretically means the children spend the bulk of the time with one parent and have visitation with the other parent.

Traditionally, it was not uncommon for one parent to have the children the bulk of the time with the other parent having one night a week, alternating weekends, and alternating holidays. Such an arrangement might lead one to believe this is “sole” physical custody. However, some courts have considered such an arrangement to be “joint” physical custody. Further, sometimes arrangements that are more appropriately called “joint” physical custody are in fact agreed by the parties to be called “sole” physical custody. In effect, the label as to what type of physical custody exists may not accurately reflect the schedule the children follow. While Judges are limited to what type of custody they can order, the parties can call their custody arrangement what they want. Sometimes the label applied by parties to the physical custody arrangement reflects more than just the physical schedule and instead reflects considerations for matters aside from where the children reside (e.g. wanting to make sure the children don’t feel abandoned, or wanting to keep both parents emotionally committed to the children.) Sometimes the labels are important in and of themselves, as they can affect what or whose circumstances may a Judge consider in a later modification proceeding seeking to change custody.

Regardless of what type of physical custody applies, the actual physical schedule for the children must reflect what is in the best interests of the children. This schedule should reflect practical considerations such as, how far apart the parents live, what are the parent’s work schedules, what are the children’s school and activity schedules, how will the children get to and from school, how will the children get to and from activities or how will the children get to and from the other parent’s house. The schedule should may also need to reflect the emotional and psychological needs of the children, and parents, and may need to take into consideration the special needs of the children. While one size of schedule certainly should not fill all cases, common patterns of custodial arrangements include, but are not limited to, the “traditional” arrangement mentioned above, alternating weeks (with each parent having one week at a time), alternating two days at a time (with each parent getting two days at a time), or each parent having set day(s) of the week and the parents alternating the weekends (e.g. Dad has every Monday and Tuesday, Mom has every Wednesday and Thursday and the parents alternate Friday through Sunday). Of course the more transitioning of the children that is involved the more cooperation is needed between the parents, and the more potentially disruptive it is to the children. Accordingly, schedules have to be crafted to meet the real world needs and abilities of all concerned.

Sometimes a parent’s access to the children has to be “supervised” or restricted. Such “supervised” or restricted custody or visitation arrangements typically reflects the need to limit one parent’s access to the children for the emotional or physical safety of the children. Such restricted arrangements can include a parent not be allowed to be alone with the children, the children not having overnights with a parent, the children having very limited time with a parent, or a program of counseling or psychiatric treatment being required. Such “supervised” or restricted custody or visitation arrangements are not only very burdensome on all concerned, but can impose a significant burden that the parent with limited access to the children has to overcome if they want to remove any supervision or restrictions conditions in a later modification proceeding.

Ultimately, the type of legal and physical custody arrangement that will be followed must be spelled out in detail and reflected in a Parenting Plan. This Parenting Plan will become a part of the Court’s judgment, whether the parents negotiated a settlement or a Court entered a custody order after a hearing, and the parents ordered to follow the terms of the Parenting Plan.

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Contact our office today at 314.448.4230 to schedule your consultation meeting. We are available to help advise you on your unique family law situation. Our legal team will be happy to set up a time that works best for you and your family.

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