In our previous blog we discussed the difference between sole legal custody and joint legal custody and the importance of having a well drafted parenting plan. In today’s blog we discuss those factors that will be considered by your family court Judge in determining legal custody in a contested custody case.
A judge should be first guided by both statutory law and case law of the State of Missouri in making his decisions. Our Missouri statutes define joint legal custody as an arrangement where “parents share decision making rights…relating to the health education and welfare of the child…”. Missouri Revised Statute 452.375 RSMo. While not as clearly defined, in an award of sole legal custody these decision making rights are not shared.
It has become a commonly accepted legal principal that family court judges begin the evaluation process with a presumption for joint legal custody. Meyer v. Block,123 SW3d 316. The State of Missouri has a clearly defined public policy which declares that frequent, continuing and meaningful contact with both parents is in a minor child’s best interest. And as part of that policy, it is favored that each parent participates in decisions effecting the health, education and general welfare of their children. 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.
However, notwithstanding the preference for joint legal custody and the seven statutory factors the court must consider in determining a custody award, the judge presiding over your custody case is granted broad discretion to determine what legal custody arrangement is in the best interest of your child. It is important for any litigant in a custody case to discuss with their Missouri family law attorney what your particular Judge would be likely to do with a legal custody award after evidence of the client’s circumstances are presented to that Judge.
If the trial Judge believes that it would be unreasonable to expect the parties to be able to communicate with each other due to factors such as a history of domestic violence, ongoing substance abuse by one of the parents or a pattern of behavior which leads the court to believe that one parent is more inclined than the other to interfere with a meaningful relationship between parent and child, that Judge may be inclined to award sole legal custody to one parent. Or, if there exists significant and apparent differences in beliefs on major parenting issues such as on issues of medical care, education and/or religious upbringing of the children the trial Judge will often more strongly consider if an award of sole legal custody is in the children’s best interest.
It is the experience of most Missouri family law attorneys that there can be a significant, but not always insurmountable, challenge in convincing a family court judge that an award of sole legal custody is in the best interest of the children of a family who comes before the judge in a contested custody case. It is the statutorily defined goal of the court to establish a custodial arrangement where children have frequent, continuing and meaningful relationships with each parent and that each parent have the ability to actively perform their functions as a mother and father for the needs of their children. It is not the goal to punish one parent for what the other parent may believe is previous acts of bad behavior.
With the Judge’s perspective in mind, and through the assistance of legal counsel, a client can have a meaningful examination of the likely outcome of a legal custody award after a contested hearing.
Please feel free to contact our office today to discuss legal issues affecting you or your family.