Child custody is one of the most important issues couples have to work out in the divorce process. Ideally, couples are able to set their differences aside and come up with a mutually acceptable solution that best serves the needs of the child. For one reason or another, many couples are not able to do this, and require the intervention of the court to resolve the matter.
Child custody is not something couples can agree to in advance by marital contract, and must in any case be approved by the court. In considering proposed child custody arrangements, family courts have as their primary concern the best interests of the child, a term which refers to a constellation of factors relevant to the child’s well-being.
Missouri Courts are bound by certain rules when it comes to awarding joint custody. One of these is the presumption that joint custody is in the best interest of a minor child when both parents agree to an award of joint custody. That presumption can be overcome when it can be shown that joint custody would not, in fact, be in the best interests of the child.
In other cases, family courts have discretion to award joint custody. When a divorce is based on irreconcilable differences, both parents must agree to an award of joint custody in order for the court to have discretion make such an award, but only one parent needs to apply for joint custody in divorce cases which are not based on irreconcilable differences. The rationale is that parents must be able to work together if joint custody is going to be successful.
Joint custody is not a small matter, of course, as parents must agree to ongoing contact and cooperation with one another. They must also consult one another in making decisions regarding the child, except in cases where decision-making authority is divided between the parents, and in any case must exchange information about the child’s health, education and welfare.
Missouri law is clear that courts are not bound by any presumption that it is in the best interests of the child to award either legal or physical custody to the mother, so fathers are not supposed to be at an unfair disadvantage in child custody disputes.
In addition, there is also a whole set of rules and presumptions governing how courts are to make custody decisions in cases involving parents with a history of family violence. These rules are particularly important to navigate in cases where a parent has been falsely accused of or unfairly characterized as violent. In a future post, we’ll further at the latter issue, and the role an experienced attorney can play in helping a parent build the strongest possible child custody case.