1. What is a “parenting plan,” and what does it mean to me?
A “parenting plan” is a detailed, written outline providing for parenting in consideration of the best interests of the 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 in which parent’s home the children shall reside on given days of the year, including provisions for holidays, birthdays, vacations, and other special occasions. If you have children under the age of 19, you will be required to attend a parenting class before your divorce is finalized.
2. What is the difference between legal custody and physical custody?
Most parenting plans will read: “Each parent will make decisions regarding the day-to-day care and control of each child while the child is residing with that parent.” Most parenting decisions fall under the “day-to-day” designation.
3. In deciding custody of a child, what factors will the court take into account?
Custody–definitions–factors determining custody–prohibited, when–public policy of state–custody options plan, when required–findings required, when–exchange of information and right to certain records, failure to disclose–fees, costs assessed, when–joint custody not to preclude child support–support, how determined–domestic violence or abuse, specific findings.
452.375. 1. As used in this chapter, unless the context clearly indicates otherwise:
(1) “Custody”, means joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof;
(2) “Joint legal custody” means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority;
(3) “Joint physical custody” means an order awarding each of the parents 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 shall be shared by the parents in such a way as to assure the child of frequent, continuing and meaningful contact with both parents;
(4) “Third-party custody” means a third party designated as a legal and physical custodian pursuant to subdivision (5) of subsection 5 of this section.
2. The court shall determine custody in accordance with the best interests of the child. The court shall 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. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian.
The fact that a parent sends his or her child or children to a home school, as defined in section 167.031, RSMo, shall not be the sole factor that a court considers in determining custody of such child or children.
3. In any court proceedings relating to custody of a child, the court shall not award custody or unsupervised visitation of a child to a parent if such parent or any person residing with such parent has been found guilty of, or pled guilty to, a felony violation of chapter 566, RSMo, except for section 566.034, RSMo, when a child was the victim, or a violation of section 568.020, 568.045, 568.060, 568.065, 568.070, 568.080, 568.090, or 568.175, RSMo, except for subdivision (1) of subsection 1 of section 568.060, RSMo, when a child was the victim, or an offense committed in another state when a child is the victim, that would be a felony violation of chapter 566, RSMo, except for section 566.034, RSMo, or section 568.020, 568.045, 568.060, 568.065, 568.070, 568.080, 568.090, or 568.175, RSMo, except for subdivision (1) of subsection 1 of section 568.060, RSMo, if committed in Missouri; provided however, nothing in this subsection shall preclude the court from exercising its discretion regarding the awarding of custody or visitation for a* child if the parent or any person residing in the home has been found guilty of or pled guilty or nolo contendere to any offense excepted or excluded in this subsection.
4. The general assembly finds and declares that it is the public policy of this state 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, and that it is the public policy of this state to encourage parents to participate in decisions affecting the health, education and welfare of their children, and to resolve disputes involving their children amicably through alternative dispute resolution. In order to effectuate these policies, the court shall determine the custody arrangement which will best assure both parents participate in such decisions and have frequent, continuing and meaningful contact with their children so long as it is in the best interests of the child.
5. Prior to awarding the appropriate custody arrangement in the best interest of the child, the court shall consider each of the following as follows:
(1) Joint physical and joint legal custody to both parents, which shall not be denied solely for the reason that one parent opposes a joint physical and joint legal custody award. The residence of one of the parents shall be designated as the address of the child for mailing and educational purposes;
(2) Joint physical custody with one party granted sole legal custody. The residence of one of the parents shall be designated as the address of the child for mailing and educational purposes;
(3) Joint legal custody with one party granted sole physical custody;
(4) Sole custody to either parent; or
(5) Third-party custody or visitation:
(a) When the court finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child, then custody, temporary custody or visitation may be awarded to any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment for the child. Before the court awards custody, temporary custody or visitation to a third person under this subdivision, the court shall make that person a party to the action;
(b) Under the provisions of this subsection, any person may petition the court to intervene as a party in interest at any time as provided by supreme court rule.
6. If the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child. If a proposed custodial arrangement is rejected by the court, the court shall include a written finding in the judgment or order detailing the specific relevant factors resulting in the rejection of such arrangement.
7. Upon a finding by the court that either parent has refused to exchange information with the other parent, which shall include but not be limited to information concerning the health, education and welfare of the child, the court shall order the parent to comply immediately and to pay the prevailing party a sum equal to the prevailing party’s cost associated with obtaining the requested information, which shall include but not be limited to reasonable attorney’s fees and court costs.
8. As between the parents of a child, no preference may be given to either parent in the awarding of custody because of that parent’s age, sex, or financial status, nor because of the age or sex of the child.
9. Any judgment providing for custody shall include a specific written parenting plan setting forth the terms of such parenting plan arrangements specified in subsection 7 of section 452.310. Such plan may be a parenting plan submitted by the parties pursuant to section 452.310 or, in the absence thereof, a plan determined by the court, but in all cases, the custody plan approved and ordered by the court shall be in the court’s discretion and shall be in the best interest of the child.
10. Unless a parent has been denied custody rights pursuant to this section or visitation rights under section 452.400, both parents shall have access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records. If the parent without custody has been granted restricted or supervised visitation because the court has found that the parent with custody or any child has been the victim of domestic violence, as defined in section 455.200, RSMo, by the parent without custody, the court may order that the reports and records made available pursuant to this subsection not include the address of the parent with custody or the child. Unless a parent has been denied custody rights pursuant to this section or visitation rights under section 452.400, any judgment of dissolution or other applicable court order shall specifically allow both parents access to such records and reports.
11. Except as otherwise precluded by state or federal law, if any individual, professional, public or private institution or organization denies access or fails to provide or disclose any and all records and information, including, but not limited to, past and present dental, medical and school records pertaining to a minor child, to either parent upon the written request of such parent, the court shall, upon its finding that the individual, professional, public or private institution or organization denied such request without good cause, order that party to comply immediately with such request and to pay to the prevailing party all costs incurred, including, but not limited to, attorney’s fees and court costs associated with obtaining the requested information.
12. An award of joint custody does not preclude an award of child support pursuant to section 452.340 and applicable supreme court rules. The court shall consider the factors contained in section 452.340 and applicable supreme court rules in determining an amount reasonable or necessary for the support of the child.
- If the court finds that domestic violence or abuse, as defined in sections 455.010 and 455.501, RSMo, has occurred, the court shall make specific findings of fact to show that the custody or visitation arrangement ordered by the court best protects the child and the parent or other family or household member who is the victim of domestic violence or abuse, as defined in sections 455.010 and 455.501, RSMo, and any other children for whom such parent has custodial or visitation rights from any further harm.
No one factor controls, and each factor must be weighed and considered in relation to the others. Any of these factors may be skewed by proof of: abandonment, substantial refusal to perform parenting responsibilities, physical or sexual abuse of a child or parent, emotional or physical impairment interfering with parenting responsibilities, drug, alcohol, or other substance abuse, abusive use of conflict which endangers the child’s psychological development, withholding access or alienation of a child from the other parent, a parent’s criminal conviction, or any other factors adverse to a child.
4. Does the child have a voice in the choice of custodial parent?
As a child gets older, the court may hear and consider the child’s wishes. The court can choose, however, to hear the child’s wishes. Beware that courts do not look favorably upon a child being coerced or coached. Courts frown upon involving a child in such a difficult situation, particularly that of choosing between parents, and attempt to keep the child out of the center of the litigation.
5. How important is the status quo in a court’s decision concerning custody?
The child’s history is very important, particularly if a child seems to be well adjusted. Courts are less likely to disrupt an acceptable situation in favor of the unknown. All things being equal, maintaining stability can be one of a judge’s most important concerns.
6. Are siblings always kept together?
Courts want to keep siblings together. 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.
7. Will spousal abuse affect the award of custody?
Allegations of abuse are relevant and important, but not necessarily controlling. Where abuse is shown to have affected the children, the court will consider this along with the other factors discussed above. Courts look at abuse allegations closely. If the court finds abuse has been present between spouses, it must make specific findings on the subject.
8. What are the rights of the parent with sole custody of a child?
The parent has final decision-making authority over decisions regarding all care and control of each child, including as to topics such as education, health care, extracurricular activities, and religious upbringing. However, this does not eliminate the requirement of that parent to share information, consult, and discuss important information.
9. What if a custodial parent wants to move out of state with the child; will this be permitted?
Yes, if the move is determined to be in the best interest of the child. Timely notice must be given and written consent of the other parent, or a court order must be obtained. Consulting a family law attorney well in advance of moving is advised. See the relocation section of this website for more specific information.
10. May a parent remove the child from Missouri temporarily, such as for a vacation?
Yes, unless there is a specific court order to the contrary. Before a minor child is temporarily removed from Missouri, the parent responsible must inform the other parent of the address and telephone number where the child may be reached during that period.
11. Once there is a determination of custody, under what circumstances may it be modified?
There must be a significant and continuing change of circumstance. The modification must again be determined to be in the best interest of the child.
12. What if the child decides he or she wants to live with the other parent?
The child’s preference for a change of residence or custody will not, by itself, constitute a sufficient cause for modification. Even if a child’s feelings are very strong, the child’s preference will be just one factor. If the child is older, the court will give more weight to the child’s preference. The court may well question the child’s motive or inquire as to whether inducements have been made by the proposed custodial or residential parent.
13. What is joint custody, and how does it work?
In a joint custody situation, parents share the final decision making authority on all matters of substance related to the child’s general health, education and welfare, including religion. Consultation and agreement is required between parents. Most parenting plans will require mandatory mediation prior to asking the court to resolve the dispute. Joint custody decisions generally do not include day-to-day meals, bedtime, or routine when with one parent or another.
14. Can I stop my ex-spouse from seeing the children if I don’t get my child support payments?
No. Visitation or parenting time is completely separate from support. Failure to pay child support is not grounds for termination of visitation or parenting time rights, although it may be a consideration in a child support modification action. To collect child support, there are other options, such as filing a petition for contempt seeking to put the non-paying parent in jail.
15. Can I stop paying child support if my ex-spouse won’t let me see the children?
No. Proper enforcement of visitation or parenting time rights begins with filing a petition for contempt, a family access motion, or referring the matter to mediation. Persistent withholding of court-ordered visitation or parenting time may be grounds for a custody modification.