Child Custody

Visit Missouri Divorce & Family Law Blog

• Generally
• Advantages of a court ordered parenting plan
• Contents of the Parenting Plan
• Factors the Court must consider in ordering a parenting plan
• Child Custody Jurisdiction and the Missouri Uniform Child Custody Jurisdiction Act

Generally

Issues regarding custody and visitation will always arise in a Dissolution of Marriage proceeding if there are children, and can also arise in paternity cases or independent actions for custody. When parents are divorcing, the law requires that the Court order a parenting plan as part of the dissolution. When the parents are not married, it is often in the interest of the child for one or both of the parents to seek a custody and visitation order from the court.

Return to Top

Advantages of a court ordered parenting plan  

A parenting plan ordered by the court will help parents co-parent if they are unmarried or after they have separated or divorced. The plan will give the parents a written guideline of what each parent’s responsibilities are, what obligations that they have to their children, the establishment of child support and will give them a court ordered document to rely on should disputes arise. The plan will also prohibit one parent from relocating the child to another residence without the specific consent of the other parent, or an order from the Court.

Return to Top

Contents of the Parenting Plan

Legal custody – Legal custody means generally the rights of the parents to make decisions regarding training, education, and rearing, etc. and includes:

• The choice or change of school, college, camp, or comparable summer activity
• Special tutoring, music, sports, art, dance, and other cultural lessons
• Psychological or psychiatric treatment or counseling, doctors, and surgeons; notice of illness and injury; and
• All other material decisions affecting the health, education, and welfare of the children

The parties will jointly decide the following:

• Educational instruction
• Religious instruction
• Health care
• Discipline
• Child care providers

In Missouri, there is a strong preference for joint legal custody in parenting plans.

Physical Custody – Physical custody means that the right of the parents to have actual physical parenting time with the children. A determination must be made for a schedule of parenting time, where each parent will have specifically designated times with the children, which generally include a residential schedule, a schedule for holidays, summertime, transportation, and vacations. In Missouri, there is a strong preference for a joint physical custody arrangement. However, joint custody does not necessarily mean that each parent will be with the children for an equal amount of time, it simply means that both parents have physical time with the children. The actual schedule will differ on a case by case basis.

The following are required by Missouri law to be included in a parenting plan:

(1) A specific written schedule detailing the custody, visitation and residential time for each child with each party including:

(a) Major holidays stating which holidays a party has each year;
(b) School holidays for school-age children;
(c) The child's birthday, Mother's Day and Father's Day;
(d) Weekday and weekend schedules and for school-age children how the winter, spring, summer and other vacations from school will be spent;
(e) The times and places for transfer of the child between the parties in connection with the residential schedule;
(f) A plan for sharing transportation duties associated with the residential schedule;
(g) Appropriate times for telephone access;
(h) Suggested procedures for notifying the other party when a party requests a temporary variation from the residential schedule;
(i) Any suggested restrictions or limitations on access to a party and the reasons such restrictions are requested;

(2) A specific written plan regarding legal custody which details how the decision-making rights and responsibilities will be shared between the parties including the following:

(a) Educational decisions and methods of communicating information from the school to both parties;
(b) Medical, dental and health care decisions including how health care providers will be selected and a method of communicating medical conditions of the child and how emergency care will be handled;
(c) Extracurricular activities, including a method for determining which activities the child will participate in when those activities involve time during which each party is the custodian;
(d) Child care providers, including how such providers will be selected;
(e) Communication procedures including access to telephone numbers as appropriate;
(f) A dispute resolution procedure for those matters on which the parties disagree or in interpreting the parenting plan;
(g) If a party suggests no shared decision-making, a statement of the reasons for such a request;

(3) How the expenses of the child, including child care, educational and extraordinary expenses as defined in the child support guidelines established by the Supreme Court, will be paid including:

(a) The suggested amount of child support to be paid by each party;
(b) The party who will maintain or provide health insurance for the child and how the medical, dental, vision, psychological and other health care expenses of the child not paid by insurance will be paid by the parties;
(c) The payment of educational expenses, if any;
(d) The payment of extraordinary expenses of the child, if any;
(e) Child care expenses, if any;
(f) Transportation expenses, if any.

Return to Top

Factors the Court must consider in ordering a parenting plan

The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:

(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 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.

Return to Top

Child Custody Jurisdiction and the Missouri Uniform Child Custody Jurisdiction Act

In Missouri, there is a specific law that details under what circumstances Missouri Courts have jurisdiction to make custody and visitation orders, called the Uniform Child Custody Jurisdiction Act, or MoUCCJA. If the requirements of this law are not met, then a Missouri court cannot enter a parenting plan for the children. Even if jurisdiction is proper for, say, dissolution of marriage or a paternity case, the Court can dissolve the marriage or declare a father, but cannot make any orders pertaining to the children.

Section 452.150.1 sets out the four alternative jurisdictional bases that exist under the MoUCCJA. If a court is otherwise competent to decide a child custody matter, the statute grants the court subject matter jurisdiction to do so if:

(1) this state is:

(a) The “home state” of the child at the time of the commencement of the proceeding (defined as the state where a child has lived for 6 consecutive months); or
(b) had been the child’s home state within the six months before commencement of the proceeding and the child is absent from this state for any reason, and a parent or person acting as parent continues to live in this state; or
(These two 6 month provisions are separate and distinct, and must be read together)

(2) It is in the best interests of the child that a court of this state assume jurisdiction because:

(a) The child and his parents, or the child and at least one litigant, have a significant connection with this state and
(b) There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or

(3) The child is physically present in this state and:

(a) Has been abandoned; or
(b) It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse, or is otherwise being neglected; or

(4) It appears that no other state would have jurisdiction under prerequisites 1, 2, or 3, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.

The primary purpose of the UCCJA is to ensure that custody determinations are made in accordance with, and in the state best suited to provide for, the welfare and best interest of the child. To that end, the UCCJA is purposely designed to ensure that a child’s custody determination is made in the state with which the child and his family are most closely connected and where the most significant evidence concerning the child’s custody is available. The comments to the UCCJA make it clear that the bases of jurisdiction in paragraphs (1) – (4) of §452.450.1 are set out indescending preferential order and that the first two bases for jurisdiction, home state and significant connection with family, establish the two major bases for jurisdiction.

A trial court’s jurisdiction under the UCCJA to hear custody matters must be based upon circumstances existing at the time the Court’s jurisdiction is invoked. Missouri courts have repeatedly observed that "it is implicit in the scheme of the UCCJA that the trial court should make an initial determination of jurisdiction by express findings of fact before proceeding to the substantive issue of custody.

Return to Top