Bills in Missouri Legislature Push for Change in Child Custody Laws

Two bills pending in the Missouri Legislature would make changes in child custody laws to expand the rights of both parents in custody disputes. Bills in both houses of the state legislature would modify the factors courts should consider when deciding what custody rights and parenting time to award to parents. Many states presume that it is in a child’s best interests for each parent to have equal or parenting time with the child, or as close to equal as possible. The bills would add this to Missouri custody law, with the goal of promoting greater involvement of both parents in co-parenting and overcoming any bias that may remain in the judicial system that favors one parent over the other. Both bills have received favorable reports from committees and are awaiting further action.

Do Missouri Child Custody Laws Favor One Parent Over the Other?

Missouri’s child custody laws specifically state that courts may not give preference to one parent over the other in custody decisions “because of that parent's age, sex, or financial status.” Officially, therefore, Missouri law does not favor mothers over fathers with regard to child custody decisions. Child custody law changes in nearly every state in the country have tried to eliminate any sort of bias based on sex and other factors. Whether these efforts have succeeded or not is another question, and opinions vary.

Many fathers still feel like Missouri courts give preference to mothers when awarding physical custody, which allows them to designate a child’s primary residence. Our society certainly once believed that children should always stay with their mothers after divorce or separation. Until fairly late in the 20th century, many courts followed the “rule of one,” which held that children needed the stability of a single home rather than going back and forth between two parents’ homes. Courts often favored mothers because of the belief that they are the natural caregivers. Rather than a bias against fathers’ ability to care for children, courts tended to apply a bias in favor of mothers that was no less sexist.

States began to adopt joint custody laws in the 1970s. Missouri’s custody law, for example, dates back to 1973. These new laws stated that the most important factor in any custody decision is whether it would be in the “best interest of the child.” Courts assess “best interests” on a case-by-case basis without regard to factors like gender. Biases about the traditional roles of mothers and fathers may still sneak into judges’ decisions, though, even unintentionally.

What Do the Current Custody Laws Say?

Section 452.375.4 of the Missouri Statutes states that, as a matter of public policy, it is in a child’s best interests to have “frequent, continuing and meaningful contact with both parents” after a divorce or separation, unless a court finds specific reasons to conclude otherwise. This section also states a policy of “encourag[ing] parents to participate in decisions affecting the health, education and welfare of their children,” and to find amicable ways to resolve disputes over issues affecting the children.

Subsection 2 of the same section establishes the “best interests of the child standard.” It identifies seven additional factors courts should consider when deciding child custody issues. The factors include:

• The parents’ wishes and proposed parenting plans;
• The child’s wishes;
• Each parent’s willingness and ability to perform their duties as parents and encourage co-parenting;
• The child’s relationship with the parents and other close relatives;
• The child’s needs regarding education, health, and social activities;
• Each party’s mental and physical health;
• Any history of domestic violence; and
• The likelihood that either parent will want to move with the child.

What Would the Proposed Bills Do?

The two parenting bills currently pending in the Legislature are Missouri House Bill 1974 and Sentate Bill 839. Both bills would amend the “best interests of the child” standard found in § 452.375.2 to add a “rebuttable presumption” that it would be in a child’s best interests for them to have “equal or approximately equal parenting time” with each parent.

Currently, state law only establishes a general policy of encouraging “​​frequent, continuing and meaningful contact” between a child and both parents, and that the court is to maximize the time the child spends with each parent given the circumstances (which some have interpreted to mean equal parenting time, but that is not the actual legal standard currently). A rebuttable presumption has more direct influence over the courts. The presumption is a baseline for custody decisions, establishing that “approximately equal parenting time” is best for a child unless someone can prove otherwise. The bill’s supporters hope that this can overcome any remaining bias that courts may have towards mothers or fathers.

Both bills would also modify the list of factors found in subsection 2. SB 839 would expand the list to nine factors and add detail to some of the existing factors, such as the parents’ willingness to share information and avoid exposing the child to “parental conflict,” and the geographic distance between the parents’ residences. HB 1974 would make fewer changes to the list, expanding it to eight factors and directing attention to the child’s “physical, emotional, medical, educational, and other needs.”

Mark A. Wortman is a family attorney who practices in the greater Kansas City, Missouri area. He has dedicated 100% of his law practice to helping people who are going through difficult ordeals like divorces and child custody disputes. Please contact him today online or at (816) 523-6100 to schedule a confidential consultation to see how he can help you.