Missouri Child Custody Questions

Missouri child custody attorneys provide answers to frequently asked questions with regards to Missouri child custody and Missouri custody laws.

How is Missouri child custody decided? Who will get custody of our child?

Missouri custody laws state the court is required to determine what is in the best interests of the children. There are two components to the custody of a child that the court must determine. The court must decide which parent will have, or how both parents will share, the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child. This is referred to as legal custody.

The court must also decide where the child will have and how the parents will share the physical time with the child. This component is referred to as physical custody.

Missouri custody laws provide that the court is required to consider all relevant factors including:

• The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
• 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;
• The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
• Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
• The child’s adjustment to the child’s home, school, and community;
• The mental and physical health of all individuals involved, including any history of abuse of any individuals involved;
• The intention of either parent to relocate the principal residence of the child; and
• The wishes of a child as to the child’s custodian.

What is joint custody?

As discussed previously, custody has two components – legal custody and physical custody.

Joint legal custody means that the parents share the decision-making rights, responsibilities, and authority relating to issues concerning the health, education, and welfare of the child. This means that unless the court orders one parent to have specific decision-making rights over a particular issue, the parents must confer with one another in making decisions on that issue.

Joint physical custody means that each parent has significant (but not necessarily equal) periods of time during which the child resides with him/her.

What is sole custody?

Sole legal custody refers to a custody arrangement where only one of the parents has the decision-making rights, responsibilities, and authority relating to issues concerning the health, education and welfare of the child.

Sole physical custody means that the child would reside with one parent. In sole physical custody situations, the non-custodial parent may have specific visitation rights which would be set out in the court’s order.

If both parents share custody does anyone pay child support?

The court will determine the appropriate amount of child support based upon relevant factors including the financial needs and resources of the child and the parents, as well as the physical and legal custody arrangements.

It is possible that if the court gives each parent equal amounts of time with the child, that one parent may still be ordered to pay child support. You should consult with an attorney concerning the specific details of your situation.

Can a parent refuse to allow visitation if child support is not paid?

No. A parent may not refuse to allow or cut back the other parent’s visitation with the children simply because the other parent has not paid his/her child support. Payment of child support and visitation are legally independent matters. Both parents have the right to have a meaningful relationship with their children.

It should also be pointed out that if one parent refuses to allow the other parent visitation, that parent may not use that as a reason to withhold or stop paying child support.

When can my child decide which parent to live with?

In Missouri child custody issues, one of the factors the court must consider is the wishes of the child. Courts will allow the child to give testimony on his/her preference if the court determines that is appropriate.

The courts have indicated that starting around age 11, a child can express his/her opinion about where he/she would like to live primarily. The judge will decide how much weight to give to a child’s opinion. The older a child gets, the more weight his/her opinion is given in deciding who should have custody of the child.

The question of whether your child should testify should be discussed with your attorney.

Do grandparents have custody and visitation rights?

Missouri child custody law permits grandparent visitation only in limited situations. There is no guaranteed right for a grandparent to have visitation with a grandchild. The court may grant reasonable visitation rights to grandparents under the following circumstances:

• The parents of the child have filed for divorce. Grandparents have the right to intervene solely on the issue of visitation rights. Grandparents also have the right to file a motion to modify the original divorce decree to seek visitation rights;
• One parent of the child is deceased and the surviving parent denies the grandparent reasonable visitation rights;
• The child has resided in the grandparent’s home for at least 6 months within the 24-month period immediately preceding the filing of the petition for grandparent rights;
• The grandparent has been unreasonably denied visitation with the child for more than 90 days, unless the natural parents are legally married to each other and are living together with the child. In that case, the grandparent may not file for visitation;
• The child is adopted by a stepparent, another grandparent or other blood relative.

The court will grant grandparent visitation only if it is in the grandchild’s best interest. The court is required to determine whether visitation by the grandparent would be in the child’s best interest.

What is a parenting plan, and do I need one?

A parenting plan is a document that is intended to assist parents who are not living together in specifying the custody and visitation schedule, the decision-making rights and responsibilities of each parent, how disputes will be resolved, and how the expenses of the child will be paid.

In Missouri, the parties are required to submit a proposed parenting plan, either individually or together.

If my separation agreement includes custody/support can it be included in the divorce decree?

The parties may enter into a written separation agreement that addresses maintenance, the disposition of their property, and the custody, support, and visitation of the children. Unless the court determines that the agreement is unconscionable, the court will approve and incorporate the terms of the separation agreement in the court’s divorce decree.

What can I expect from temporary orders?

A divorce, like any other lawsuit, can take some time to get through the court system and fully and completely resolve all issues between the parties. While the case is pending, the court can make temporary determinations that are effective until further order of the court.

The court can enter temporary orders that address custody and visitation arrangements concerning the parties’ children, child support, maintenance, payment of debts, costs, and possibly attorneys’ fees.

When will child custody be decided?

Custody of the parties’ children will be decided by the court. The court’s custody decision will be made on what the court determines is in the best interests of the children. If the parties agree to a custody arrangement, the court must still make its own determination whether the arrangement is appropriate and decide whether to approve the agreement of the parties.

However, if the parties are not able to agree on custody, the court will make a determination after a formal court hearing in which both sides will be allowed to present testimony and evidence.

When can I modify custody?

In order for the court to modify the terms of a custody order, there must be a continuing and substantial change in the circumstances of the child or the child’s custodian and the modification is necessary to serve the best interests of the child. It is important to understand that there must be new facts that have come up since the prior order, or there must be facts that were not known by the court at the time of the prior order.

What if we cannot agree on a custody arrangement?

If the parties cannot agree on a custody arrangement for their children, the parties may go through mediation. Ultimately, if the parties cannot agree, the court will make a custody order after a formal court hearing in which both sides will be allowed to present testimony and evidence.

What is an ex parte order?

An ex parte order refers to a court order that is entered at the request of one of the parties without hearing from the other party. Generally, ex parte orders are issued in extreme situations and are temporary until the court can hold a hearing to give both sides the opportunity to address the court.

How can I increase my chances at getting a larger custody agreement?

There are certainly things you can do to improve your chances of convincing the court to give you more time with your children. Conversely, there are certainly things you can do that will hurt your custody battle.

You should consult with an attorney concerning the specifics of your situation. You should be aware that everything that you say and do in front of the children or the other parent could make its way back to the judge.

What is visitation?

Visitation refers to the time that the non-custodial parent will have with the children. A visitation plan will set forth the routine visitation, holidays, and summers. The clearer and more specific the plan is, the less chance there is for miscommunication and confusion.

Can a judge order supervised visitation or no visitation?

Missouri law specifically provides that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child, except for cases where the court specifically finds that such contact is not in the best interest of the child. In appropriate circumstances, the court can order supervised visitation or no visitation rights at all.

One specific situation where this would be applicable is where a parent or a person residing with that parent has been convicted of a felony sexual offense involving a child victim. In such a situation, the court cannot award custody or unsupervised visits to that parent. You should consult with an attorney to discuss the specific facts in your case.

Do courts favor the mother over the father?

Missouri child custody law specifically provides that no preference may be given to either parent in the awarding of custody because of that parent’s sex.

What should I know before a custody trial about Missouri Custody Laws?

You should consult with an attorney concerning the specifics of your case.

Can I collect my own evidence to use if my custody case goes to court?

You should consult with an attorney concerning obtaining evidence in your case.

Do I need to use a Guardian ad Litem/Custody Evaluator?

In Missouri, in all proceedings where custody, visitation, or support of a child is contested by the parties, the court may appoint a Guardian ad Litem. If child abuse or neglect is alleged, the court must appoint a Guardian ad Litem. A Guardian ad Litem is an attorney that is appointed to be the legal representative for the child.

Will my child need to appear in court?

Generally, in non-contested cases, where the parties have settled and agreed to all of the issues surrounding the custody, visitation, and support of the child, there will be no need for the child to appear in court.

However, if the case is contested on the issues concerning the child, there are situations where it may be necessary for your child to testify in court. You should consult with an attorney to discuss the specific facts of your case.

What is the Parental Kidnapping Prevention Act?

The Parental Kidnapping Prevention Act (PKPA) is federal law the individual states utilize to determine which state can assert jurisdiction in child custody matters. The PKPA’s purpose is to ensure that custody determinations are made in the appropriate state.

What if my wife tries to move the kids out state?

If your divorce has not been filed and your wife tries to move the children to another state, you should consult with an attorney about filing for divorce immediately to make sure that the court in Missouri will have jurisdiction over the children.

Most states have a residency requirement before a parent can file for divorce. The party must be a resident of the state for a specified period of time, before they can file for divorce. In Missouri, a parent would have to reside in this state for at least 90 days immediately before filing for divorce.

Can a parent change the child’s last name without the other parent’s permission?

Court approval is required to legally change a person’s name. In the case of a minor child, the parent seeking to change the child’s name would be required to file a separate cause of action.

The other parent would have to be served and given notice of the proposed name change and would be given the opportunity to be involved in this decision.

If I have custody, will I receive child support?

If you have physical custody of your child, the non-custodial parent will most likely be ordered to pay child support. The court will determine a presumed child support amount in a very formulaic manner, and will make a determination whether the amount is just and appropriate based upon all of the relevant factors including:

• The financial needs and resources of the child;
• The financial resources and needs of the parents;
• The standard of living the child would have enjoyed had the marriage not been dissolved;
• The physical and emotional condition of the child, and the child’s educational needs;
• The reasonable work-related child care expenses of each parent.

In setting a child support amount, the court is specifically not allowed to consider marital misconduct of either parent.