Missouri law states that a child custody arrangement must be in “the best interests of the child.” It does not provide a specific definition of the term. Instead, it gives courts rather broad discretion when deciding custody issues, and provides a long list of factors that courts should consider when determining whether a particular custody plan meets the “best interests” standard. A law passed by the Missouri Legislature in 2016 included a statement favoring custody arrangements that give children as much time as possible with each parent. A bill that has failed to pass in several recent legislative sessions would go farther than this, by establishing a “rebuttable presumption” that access to both parents is in a child’s best interests. Advocates for “shared parenting” arrangements have supported this sort of legislation, and have criticized court decisions that they claim ignore changes made to state law by the 2016 legislation.
The governor signed HB 1550 into law on July 1, 2016. The new law made numerous changes to Missouri family law. It repealed and replaced seven sections of Chapter 452 of the Missouri Revised Statutes. One section, as amended, specifically mentions the goal of “maximiz[ing] to the highest degree the amount of time the child may spend with each parent.”
Section 452.375(4) defines the “best interest of the child” to include “frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage.” While the terms “frequent” and “continuing” have specific and well-known definitions, the subjective nature of the term “meaningful” gives courts considerable leeway in evaluating a custody plan.
In § 452.375(8), the law specifically states that a court may not give preference to one parent over the other solely on the basis of “that parent's age, sex, or financial status.” Advocates for shared parenting often claim that courts rule disproportionately in favor of mothers in custody disputes. This is a complicated issue, but subsection (8) of the statute attempts to address it by prohibiting courts from “presum[ing] that a parent, solely because of his or her sex, is more qualified than the other parent” to fulfill the responsibilities associated with custody.
Courts may not use “a standardized or default parenting plan,” according to § 452.375(11). Some states define a default custody arrangement by statute. Texas, for example, has a “Standard Possession Order” defined in Chapter 153, Subchapter F of the Texas Family Code.
In October 2017, the Missouri Court of Appeals for the Western District ruled on a custody dispute in King v. King. The case began as a divorce with children. Both parties requested joint physical and legal custody at trial. The trial court entered an order stating that the children would reside with the father on Wednesday evenings and on every other weekend.
In his appeal, the father expressed his understanding that “joint physical and legal custody” meant that the parents would have roughly equal time with the children. He argued that the trial court’s order failed to provide “frequent, continuing, and meaningful contact with the children,” and that the order “essentially” awarded the mother sole custody.
The appellate court affirmed the lower court’s order. It held that state law does not require “parenting time [to] be exactly equal” in a joint custody arrangement. Of the eight factors for courts to consider in assessing the best interests of the child, listed in § 452.375(2), the court found that seven of them did not favor either parent. Factor two, which includes “the ability and willingness...to actively perform their functions...for the needs of the child,” weighed in the mother’s favor. The mother had testified at trial “that she was in charge of 85 percent of the child-rearing duties.” The trial court found this persuasive, and the appellate court found no reason to overturn its findings.
The father largely relied on a 2016 decision from the Missouri Court of Appeals in St. Louis, Morgan v. Morgan. In that case, the trial court had awarded the father two overnight visitations every two weeks. The court found that this was inadequate for a joint custody arrangement. The King court distinguished its case from Morgan, noting in part that the father in King had more than twice as many overnight visits as the father in Morgan.
Shortly after the appellate court issued the King ruling, the National Parents Organization (NPO) issued a press release criticizing the court’s decision. The NPO advocates for “shared parenting,” which it defines as giving “both parents...equal standing raising children after a separation or divorce.” It criticized the King ruling by claiming that it failed to provide the father with “frequent, continuing and meaningful contact” with the children, and that the trial court had ignored the 2016 law by resorting to a “default parenting plan” and failing to “maximize...the amount of time the child may spend with each parent.” The organization spoke favorably of the Morgan decision.
The Missouri House of Representatives passed a bill, HB 1667, in 2018 that would have amended § 452.375(2). It did not come up for a vote in the Senate, and therefore did not become law. Criticisms of the King ruling led to endorsements of the changes that HB 1667 would have made.
Had it passed, the bill would have created a “rebuttable presumption” that a child’s best interests include “an award of equal or approximately equal parenting time to each parent.” In order to overcome this presumption, a parent or other interested party would have to prove, by a preponderance of evidence, that “equal parenting time” is not in the child’s best interest. This evidence, according to the bill, would have to take into account “all relevant factors including, but not limited to,” the eight factors listed in § 452.375(2).
The bill would therefore remove subjectivity or ambiguity from the law by creating the rebuttable presumption. It also would have added new subjectivity by stating that “all relevant factors” includes more than just the eight listed factors.
Mark A. Wortman is a family law attorney in the Kansas City, Missouri area. His practice focuses exclusively on divorce, child custody, and other family law matters. Please contact us online or at (816) 523-6100 today to schedule a confidential consultation with an experienced legal advocate.