Who Gets the Kids in a Divorce in Missouri?

by Beverly Bird
Missouri law frowns on parents who interfere with their child's relationship with the other.

Missouri law frowns on parents who interfere with their child's relationship with the other.

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Who gets the kids is usually one of the preeminent questions in a divorce. Many divorces come down to this issue alone – parents resolve issues of property but can't agree on a parenting plan for their children. When this occurs, a judge must decide custody and visitation issues at trial. Missouri's statutes include instructions and guidelines as to what judges should consider when they rule.

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Types of Custody

Missouri recognizes two types of custody: legal and physical. Each type may be awarded to one or both parents. When parents have joint legal custody, they both contribute to making major decisions on their child's behalf. Sole legal custody means only one parent makes these decisions. Joint physical custody means a child lives with both parents for a significant amount of time, though it rarely works out to an exact 50/50 split. Missouri courts are amenable to awarding joint legal and physical custody so both parents remain equally active in their child's life post-divorce, and judges will not automatically veto such an arrangement just because one parent objects. When a child physically lives with one parent a majority of the time, the other parent is still entitled to a "continued and meaningful relationship" with the child through visitation, unless the court finds it is not in the best interests of the child, for example, because the parent is unfit or there have been instances of child abuse. In such cases, a judge might curtail visitation or limit it to time supervised by a third party.

Best Interests Standards

Countrywide, states have issued lists of factors that a judge must consider when deciding which parent – if not both – should have physical custody. In Missouri, these best interests standards include the wishes of the child. Courts favor the parent who makes a concerted effort to promote her child's time and contact with the other parent. Interference with visitation may cause a judge to grant custody to the innocent parent, particularly if he's demonstrated an ability to bury the hatchet with his ex so his child can enjoy an ongoing relationship with her. Continuity and stability are also important factors; Missouri law prefers not to uproot a child from the neighborhood, school and social circle he's enjoyed all his life, forcing him to reside with a parent who lives elsewhere. Missouri statutes specifically state that a parent's gender cannot be taken into consideration when a judge decides custody, nor can judges consider age or financial status.

Variations

The needs of some families don't fit neatly into joint or sole physical custody arrangements. Missouri courts are willing to entertain other scenarios when parents request them, although they typically won't order them over parents' objections. Split custody divides siblings, such that some siblings live with one parent and the others live with the other parent. "Bird nesting" occurs when parents retain the marital home so the kids don't have to move. The children stay in residence 24/7 without having to bounce back and forth between parents' homes. The parents are the ones who move in and out to stay with the kids for set periods of time.

Modifications

Missouri does not view custody as a permanent solution to a family's divorce. Custody terms of divorce decrees can be modified as children grow older and their needs change. If you and your ex agree that a certain change in your custody arrangement is necessary, you can file a stipulation with the court, setting forth the changes. The stipulation supersedes the terms of your decree. If you can't agree, you may file a motion with the court and request the court order the change. If you do this, you have the burden of proving to the court that circumstances have significantly changed since your decree or custody order was first issued. The fact that you – or even your child – wants a change is rarely enough for a judge to change custody terms over one parent's objection.