Without a doubt, legal custody of a child can be an important and emotionally charged issue whether you’re going through a divorce or you were not married to the other party. It is important to understand the terms used and what factors a judge will weigh when making decisions concerning the children.
What does “Legal Custody” mean?
There are two types of custody – legal and physical. Simply put, legal custody refers to decision-making affecting the child, regardless of the amount of parenting time the child spends with either parent. Legal custody involves “major decisions” such as the child’s education (childcare, changing schools or choice of school), health (such as medical care or counseling), and welfare (religious upbringing or extracurricular activities). Missouri law requires a written plan specifying how decision-making rights and responsibilities are to be shared by the parents. (In our next blog, we will examine Physical Custody.)
Joint Legal Custody
Joint legal custody refers to both parents sharing the responsibility for making major decisions affecting their child. Neither parent has the authority to act alone and parents are expected to make their best efforts to reach an agreement. Absent extreme circumstances, Missouri courts have a strong preference for awarding joint legal custody, because of the benefits of shared parental decision-making.
Sole Legal Custody
Sole legal custody confers one parent the authority to make major decisions affecting the child. However, the parent with sole legal custody is still expected to consider the other parent’s opinion as to major decisions. Additionally, unless there are certain types of criminal convictions of one of the parents, even with sole legal custody, the other parent will still be allowed access to the child’s medical and school records. It also does not necessarily mean the other parent’s visitation time is limited.
How is Legal Custody Determined?
The preference in Missouri is for joint legal custody. To award sole legal custody, there have to be facts which show it is not in the child’s best interests for both parents to have equal rights in making decisions about the child.
If parents are unable to reach an agreement as to legal custody or one or both parents are seeking sole legal custody, a family court judge will hear evidence at trial and issue an order determining the parties’ rights as to legal custody. The court considers the statutory factors in deciding legal custody as well as physical custody.
The factors which are the most often relevant as to a legal custody determination are:
- Mental and physical health of either parent – including whether there is a history of abuse or domestic violence toward the other or if parental judgment is impaired by illegal substance use or untreated mental illness.
- Whether one parent is more likely than the other to communicate and involve the other parent in decision-making, including
- Breakdown of parental communication or areas of fundamental, ongoing disagreement as to the child’s education, health and welfare and an inability or unwillingness of one parent or the other to put aside their conflict to decide the child’s needs
- Conviction of a violent crime against another person or child
In most circumstances, Missouri Courts will award both parents joint legal custody.
Where one parent seeks sole legal custody, self-interested testimony from each parent alone will rarely provide a judge with the clarity to decide against the benefits of joint legal custody.
Neither parent’s attorney may speak for a child, but either parent may ask that the court appoint a neutral professional like guardian ad litem to independently represent the child’s interests. Allegations of abuse or neglect require the appointment of a guardian ad litem. Additionally, the guardianad litem, judge or a parent may request an investigation conducted by a social worker or other qualified person such as a mental health provider to conduct a custody evaluation.
The exact process will depend on where you file: in the City of St. Louis, St. Charles County or Jefferson County, parents may be ordered to participate in a mediation session to help resolve custody issues. In St. Louis County, Domestic Relations Services helps divorcing parents who are referred there by the court. The DRS program may conduct a custody evaluation and can also help parents develop a parenting or custody plan.
Custody decisions are complex and can be anxiety-inducing for parents and children. Understanding the process and various options can help. Refer to our Child Custody FAQs blog for more information.
With a combined 30 years in family law, the attorneys at Jones Family Law Group, LLC, will provide the legal guidance you need. For questions or to schedule a confidential consultation, call 314-449-8830.