It’s generally preferable when divorcing parents can negotiate their own custody agreements and parenting plans, with the help of their individual legal counsel. When they can’t, they need to ask the judge in their case to make these decisions for them.
Judges have an obligation to follow state law. That’s why it’s always wise for anyone who is divorcing to understand how Missouri law applies to their specific circumstances.
Where does “rebuttable presumption” come in?
State laws across the country have been modified in recent years to recognize that it’s generally in a child’s best interest for their parents to have more or less equal time with them. For example, here in Missouri, the law has been modified to add a “rebuttable presumption” that “an award of equal or approximately equal parenting time to each parent is in the best interests of the child.”
That means the court starts with the presumption that something close to a 50-50 split of parenting time is best for a child. For a parent to challenge that presumption, they need to show the court that a “preponderance of the evidence” indicates that it’s not. An obvious example would be there’s been a “pattern of domestic violence.” There might be other reasons why one parent should have primary or even sole custody – such as if the other parent doesn’t have the time or ability to properly care for a child this much.
What does a judge consider when determining custody?
Among the factors a judge is directed by the law to consider when determining custody include:
- The “willingness of parents to actively perform their functions…for the needs of the child”
- The “interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests”
- The child’s need for a “frequent, continuing and meaningful relationship with both parents”
A judge may also take a child’s wishes into consideration if the child is old enough and mature enough to give their own opinion “free of coercion and manipulation.”
Even parents who believe they and their co-parent are in agreement on the custody agreement and parenting plan sometimes find themselves surprised by their soon-to-be ex’s sudden change of heart (or circumstances). By having solid legal guidance from the beginning, these twists and turns in the divorce process are easier to navigate.