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Child custody is the legal term that helps us understand when a child is going to be where and who is going to make what decisions for the child. The court will enter an order for child custody in both dissolution of marriage actions and paternity actions. Child custody has two sub-parts physical custody and legal custody.
Physical custody is, as I like to say, “when is child going to be where.” This can take many forms in Missouri and there is no universal approach to scheduling. In addition, schedules often change as the children grow and their needs change. The law requires each parent to have frequent, continuing and meaningful contact with the child. So, think about your family and the schedule of each parent and the child, and then consider your neighbor’s family. You will quickly see that for each family and each child, there will be a unique schedule that works best. For example, for some families a child will be with their mother during the weekdays and their father on alternating weekends. In others, a child will be with each parent 50% of the time rotating on a week to week basis, or a 3 day/4 day rotation. Or, if the parents live far apart, the child may be with one parent during the school year, and another during the summer and longer holidays. In all of these examples, the law defines this type of physical custody as “joint physical custody.”
For some families, where there is significant risk of danger to the child that would impair the child’s physical and emotional well-being and development, supervised visits may be appropriate. This is often the case where there has been significant domestic violence that is well documented. In this instance the law refers to this arrangement as “sole physical custody.”
In any case where one of the parents alleges child abuse or neglect against the other parent, the court is required to appoint a guardian ad litem. A guardian ad litem is an attorney who will represent the best interest of the children who are alleged to be abused or neglected. Both parents will often be ordered to pay for the fees of the guardian ad litem.
I always say that there is no such thing as comparison shopping for child custody determinations what works for you, the other parent of your child, and your child may or may not work for other families. The key here is to develop a parenting time schedule that works for you, the other parent of your child and the child which will keep the child in the center of the family and not in the middle of the conflict.
Legal custody is, as I like to say, “who is going to make what decision for the child.” Again, this can take many forms in Missouri. Think about your child and the number of decisions that are made each day, week, month and year for that child. These decisions include, for example: where does the child go to school, who has access to school records, who attends parent-teacher conferences, who makes the doctor’s appointments, who takes the child to the doctor’s appointments, who administers the medicine or other treatment prescribed by the doctor, who signs the child up for extracurricular activities, who takes the child to extracurricular activities, what religious services will the child attend, and other decisions too numerous to list here.
In most families, both parents tend to take part in these decisions to some degree some families the parents decide equally and both parents attend all scheduled appointments, conferences and other meetings, while in other families one parent may be more active in scheduling the appointments and ensuring the child gets to where the child is scheduled to be while ensuring the other parent is aware of the appointments and the information regarding the child’s development. The law in Missouri prefers to define these plans as “joint legal custody” which ensures each parent can participate in the child’s life meaningfully.
Again, each family is unique and what works for your neighbor or your brother’s family may not work in yours. It is important to develop a definite understanding of who is going to make what decisions for the child and have a plan of action that works for you, the other parent and your child to ensure that your child gets what your child needs to grow up into a healthy, happy and productive adult. What you must remember here is that this is about keeping your child in the center of the family and not in the middle of the conflict.
The document that you and your lawyer will draft that spells out when the child is going to be where and who will be making what decision for the child is called the parenting plan. If you and the child’s other parent cannot agree on the terms of the parenting plan, the judge will decide those terms for you and your children. The parenting plan should be used by you and your child’s other parent as the guide, or blueprint. Sticking to the parenting plan as much as you can will minimize conflict and maximize your co-parenting success.
When your case involves child custody, whether you have a dissolution of marriage action or a paternity action, the court will require you to take a class. The specific class will be determined based on your county and the type of action you have filed dissolution of marriage or paternity. In dissolution of marriage actions, the class is called FOCIS in Jackson county, and COPE in Clay county. You can find information on the FOCIS class at www.missourifamilies.org. You can find information on the COPE class at www.circuit7.net/familycourt/classes. In paternity actions, the class is called PTLA. You can find information on the PTLA class at www.16thcircuit.org/resource-services.
REMEMBER: CHILD CUSTODY BATTLES ARE HARD ON CHILDREN. Do yourself and your children a great favor by not speaking badly about their other parent and not involving your children in your conflict with their other parent. It is your child who is the loser in any battle you have with your child’s other parent. You already know that there is some information you should simply not discuss with children for example, you would not show your 4-year-old child a video of her birth! Your children’s bodies are made up of 1⁄2 of you and 1⁄2 of the other parent. When you speak badly of the other parent, you necessarily speak badly of your child and undermine the development of your child’s self-esteem. If you are having a problem with the other parent, please keep track of it in your diary. If there is an immediate problem or concern, please bring it to your lawyer’s attention.
TIPS FOR BETTER PARENTING: Use all of your parenting time. Don't pick the children up late or return them early. Read all you can on the subject of children, children's development, parents, and how to be a good parent in a family where the children have parents who do not live in the same home. If a class or study course in this general area becomes available in your geographic area, attend it.
For the court to have jurisdiction to enter child custody orders, the child must have resided in the State of Missouri since its birth or for the 6 months immediately preceding the filing of the dissolution of marriage action. The statute in Missouri on child custody is RSMO Section 452.375 and requires the court to consider the following factors in all custody cases:
(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 as defined in section 455.010 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, shall not be the sole factor that a court considers in determining custody of such child or children.
To make an appointment, please call me at 816-256-5440.
I am available to help you in the following Missouri counties: Jackson, Clay, Platte, Cass , Buchanan, Andrew, Davies, Caldwell, DeKalb, Clinton, Atchison, Holt, and Nodaway.
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