Joint Custody

In the first part of this two-part series, the author tried to address the standard of proof in Missouri to modify an existing custody order. In this part, the author would like to step back for a moment and address the differences between joint and sole custody, and why labels are perhaps not such a good thing in many cases. 

In Missouri, joint physical custody is defined by the legislature as 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.” Taking the idea even further, the legislature specifically states that the public policy of the state is that both parents have “frequent, continuing and meaningful contact with their children”, except in cases where it would not be in the children’s best interest to have such contact. Therefore, a layperson might surmise that in many divorce cases, where both parties are fit and able to parent their children, the trial courts would routinely grant joint physical custody of children, and rarely award sole physical custody. This is not the case.

In years past, most practitioners, generally speaking, felt that joint physical custody was an arrangement approaching 50% of the time with each parent. In recent years, the Court of Appeals in Missouri has indicated that this thinking is flawed. That is, that if a parent has significant time, and that could equate to 33% or even 25% of the available time with the child, he or she is a joint physical custodian. After representing fathers for more than five years, it is clear to this author that men still often struggle to achieve joint physical custody of their children. These fathers are not abusive, they have not been neglectful and they have no issues which would prevent them from being active and involved parents. Still, the label eludes them. It seems often to be a concession from the mother in the case to “allow” the father to be a joint physical custodian.

These labels have become pawns in divorce cases, and this is certainly not what is best for the children of divorce. It seems that society has evolved to a point where these labels should be done away with. Rather than being a control mechanism by which one parent is able to indicate to health care providers, schools and churches that he or she is the “primary parent,” these terms should be laid to rest. Unless, as stated in the public policy of Missouri, the trial court deems it to not be in the best interest of the children to have frequent, continuing and meaningful contact with one parent, both parents should be on equal footing when it comes to their children. Neither parent should be able to extort the other into agreements on other issues by dangling this emotional carrot in front of the other parent.

It is this author’s hope that our state legislatures will catch up to the current reality, which is that the vast majority of parents, both mothers and fathers, are active and involved with their children. Sole or primary custody should be the exception, not the rule.

Michele Hammond is a Senior Attorney with the St. Louis office of Cordell & Cordell, P.C.

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