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Home > Family Law Guide > Child Custody

CHILD CUSTODY AND VISITATION

Parents involved in a divorce or paternity action are rightfully concerned about their children's well-being, and parents want to ensure that they will remain an influential and positive role in their children's lives going forward. Consequently, the most important, hotly contested, and emotionally charged part of a divorce or paternity action often involves child custody and visitation issues. Parents should be careful not to allow the emotion of a divorce or child custody dispute to harm their children.

If you have children, you should have an attorney assist you with your divorce or paternity action. The rules and considerations for child custody are complex. Generally, Missouri law has acknowledged that "frequent, continuing, and meaningful contact with both parents after the parties have separated or dissolved their marriage is in the best interest of the children." In many circumstances, the court will favor a joint legal/joint physical custody arrangement where the parties share major decision making and each has significant, but not necessarily equal, time with the children. It is important to remember that the court will base its custody decision on what the court believes to be in the "best interest" of the child.

If there has been child abuse or neglect, the court can protect the child by limiting visitation, however, the court will not necessarily limit visitation simply because one spouse has been at fault in the marriage. It is important that neither party use child custody and visitation as a way to seek revenge for bad conduct in the marriage. Unless the bad conduct relates to the children, the court may disregard that misconduct in deciding child custody.

If there are allegations of child abuse during the marriage, the court will probably appoint a guardian ad litem to represent the child or children. If the dispute over child custody is bitter, sometimes a court will appoint a guardian ad litem even though child abuse is not alleged. The court will require one party, or both, pay the cost of the guardian ad litem, which can be substantial. The guardian ad litem is ordinarily an attorney appointed to represent the children who may make recommendations to the court concerning custody. To avoid unnecessary costs and trauma to your children, both parties should keep disputes about child custody rational and civilized.

We address many commonly asked questions below in our Child Custody Guide. If you have any questions, CALL US TODAY AT (314)726-6464 AND WE WILL MEET WITH YOU AT NO CHARGE TO DISCUSS YOUR CASE.

What is a "parenting plan"?

A "parenting plan" is a detailed, written plan intended to assist parents who are not living together in developing the ideal environment for their children. Parenting plans contain an allocation of parenting responsibilities, the establishment of a residential schedule, and an allocation of child support. A schedule outlines when the children are in each parent's physical care and designates the residential parent. The schedule also details where the children will reside on given days of the year, including provisions for holidays, birthdays, vacations, and other special occasions. When preparing the parenting plan, parents need to consider the children's needs and interests above all else.

Forms of parenting plans will vary by County. Click
here to view an example of a "parenting plan."

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What is the difference between legal custody and physical custody?

Legal custody of a child means having the right and the obligation to make decisions about a child's upbringing. A parent with sole legal custody can make decisions about schooling, religion, and medical care, for example. Courts often award joint legal custody (discussed below), which means that the decision making is shared by both parents.

Physical custody means that a parent has the right to have a child live with him or her. Joint physical custody is common. In that situation, the child spends significant time with both parents. Joint physical custody works best if parents live near each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine.

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What is joint custody, and how does it work?

Parents who don't live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:

  • joint legal custody
  • joint physical custody (where the children spend significant time with each parent), or
  • joint legal and physical custody.

It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.

Joint custody requires cooperation between parents. The parents must work out a schedule according to their work requirements and housing arrangements and the children's needs. If the parents cannot agree on a schedule, the court will impose an arrangement. Joint custody decisions generally do not include day-to-day meals, bedtime, or routine when with one parent or another.

If you think you have circumstances that make it impossible to share joint custody (the other parent won't communicate with you about important matters or is abusive), you can ask the court for sole custody. However, joint custody is preferable, so you will have to convince a court that joint custody is not in the best interests of your child.

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In deciding custody of a child, what factors will the court take into account?

Under Missouri law, the court must consider all relevant factors including:

  1. The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;
  2. The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
  3. The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;
  4. Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
  5. The child's adjustment to the child's home, school, and community;
  6. The mental and physical health of all individuals involved, including any history of abuse of any individuals involved;
  7. The intention of either parent to relocate the principal residence of the child; and
  8. wishes of a child as to the child's custodian.

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Does the child have a say in the choice of custodial parent?

Under Missouri law, one factor considered by the court is the wishes of the child as to the child's custodian. Generally, the older the child, the more importance the court will place on the child's wishes as to his or her custodian. Beware that courts do not look favorably upon a child being coerced or coached to testify about his or her preference of a custodian. Courts generally do not believe that a child should be involved in such a difficult situation, particularly that of choosing between parents, and attempt to keep the child out of the litigation.

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How important is the status quo (the existing circumstances) in a court's decision concerning custody?

Very important. The court's custody decision will be dictated by what the court believes to be in the best interest of the child. If a child is well adjusted and thriving in his or her current situation, the court will be reluctant to change the child's routine and/or circumstances. Maintaining stability is often an overriding consideration in custody decisions.

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Are siblings always kept together?

Generally, yes. In order to split siblings, there must be a compelling reason. Even if the divorcing parents agree to split siblings, the court must ultimately approve the proposed arrangement as being in the best interests of the children.

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Will spousal abuse impact the award of custody?

Domestic abuse is one factor considered by the court when determining custody. Where abuse is shown to have impacted the children, the court will consider this along with the other factors discussed above. If the abusive behavior has been directed at the children, or otherwise endangers the children, the court will likely place great weight on this factor. Allegations of abuse should not be made casually. Courts scrutinize these allegations. If the court believes that the allegations are false and were made in an attempt to gain an advantage in the custody dispute, the false allegations may severely harm the alleging party's case.

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Can the custodial parent move out of state with the child?

Only if the move is determined by the court to be in the best interest of the child. Given today's mobile society and job market, divorcing couples often desire to move from one state to another. Such moves complicate matters when it comes to child custody and support issues. A move to another state will impact the relationship between the child and the parent left behind. Often that relationship is harmed. If the children have a close relationship with the parent left behind, then a move should be avoided if at all possible.

The custodial parent wishing to move out of state must give timely notice of intent to move and provide all information under the time standards required by the Statutes of the State of Missouri. The other parent may object to this move and such objection is grounds for the Court to revisit the custody arrangement. If you are considering moving out of state with your child, or your spouse has indicated that he or she intends to move out of state with your child, you should contact a family law attorney immediately to discuss your rights.

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May a parent remove the child from Missouri temporarily, such as for a vacation?

Yes, unless a court order directly prohibits the removal. The parent temporarily removing the child from the state should notify the other parent of the address and telephone number where the child may be reached during that period.

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Can I stop my ex-spouse from seeing the children if I do not receive child support payments?

No. The right of visitation and custody is separate from the obligation of support. Failure to pay child support is not grounds for termination of visitation or custody rights. You should contact an experienced family law attorney to discuss your rights and avenues for collection of child support. Click
here for more information about enforcing court orders.

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Can grandparents seek visitation or custody rights through the courts?

Yes. Grandparent rights are beginning to come to the forefront in family law. Grandparents' rights cases can involve a situation where grandparents (or other family members) seek permanent custody, temporary custody, or visitation rights. These cases may arise after a divorce, when one natural parent passes away, when one or both natural parents are unfit parents, or when one or both natural parents unreasonably deny grandparents access to grandchildren. In Missouri, grandparents are significantly limited in their rights unless they have been given guardianship or other rights by the court, or awarded custody during a divorce. If the child's grandparents have been granted guardianship, the parent or parents may seek to end that guardianship and take back custody of their children.

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CALL US TODAY AT (314)726-6464 AND WE WILL MEET WITH YOU AT NO CHARGE TO DISCUSS YOUR CASE.

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