“I want sole custody” is a phrase I hear almost every day. Often, people outside of the legal world do not know what that means, so I am going not try and break it down for everyone.
Understanding child custody can be overwhelming, especially during an emotionally charged divorce or separation. As an experienced family law attorney in Missouri, I’ve helped hundreds of families navigate these complex waters over the years. This comprehensive guide will provide you with the essential knowledge you need to make informed decisions about your children’s future.
There are two different types of custody in Missouri, for instance: Legal Custody and Physical Custody. Each can be either joint custody or sole custody.
Child custody is the responsibility and legal rights granted to parents by the courts. Typically, child custody cases take place after a divorce or separation or after a child is born and the parents are not married (or together). The most common aspects involved in child custody cases include matters such as a Guardian Ad Litem being appointed to your custody case that can cause additional confusion.
There are two different types of custody in Missouri: Legal Custody and Physical Custody. Each can be either joint custody or sole custody. Understanding these distinctions is crucial for any parent entering the custody process.
The specific child custody arrangement is determined based on various factors, including the child’s or children’s relationship(s) with each parent and both parents’ current status relating to work-life balance and finances. Ultimately, the court’s goal is (or should be) to do what is best for the child while also making sure both parents are treated fairly. Things like physical abuse, substance abuse, or neglect will obviously have a negative impact on a parent’s chances of custody.
The specific child custody arrangement is determined based on various factors, including the child’s or children’s relationship(s) with the each parent and both parents’ current status relating to work-life balance and finances.
Ultimately, the court’s goal is (or should be) to do what is best for the child while also making sure both parent is treated fairly. Things like physical abuse, substance abuse, or neglect will obviously have a negative impact on a parent’s chances of custody.
In a significant development, Missouri enacted new custody legislation in 2023 that fundamentally changed how courts approach custody decisions. Under Senate Bill 35, which took effect on August 28, 2023, Missouri now has a rebuttable presumption that equal or approximately equal parenting time is in the best interests of the child.
This means courts must start with the assumption that 50/50 custody serves the child’s best interests, though this presumption can be overcome by a preponderance of the evidence showing that equal time would not benefit the child. This change places Missouri among the states that favor equal parenting time, with statistics showing that Missouri fathers now typically receive about 50% of custody time compared to the national average of 35%
Legal custody assigns which parent or guardian will get to make major decisions for the children.
This may include non-emergency surgery, choice of medications and doctors, decisions regarding education, and in some circumstances, what activities the children participate in.
You do not get to dictate what happens at the other parent’s home just because you have sole legal custody.
This is for major decisions only.
The most common order in child custody cases is joint legal custody. This means that the parents must reach an agreement on major decisions. Each parent makes their own day-to-day decisions in their household, but for big decisions, the parents need to come together and reach an agreement (just like married parents do). If an agreement cannot be reached, most parenting plans call for a dispute resolution procedure to occur.
Major decisions typically covered under legal custody include:
The Court, in some cases, will award sole legal custody to a parent, but usually only after a showing that the parties have such a significant breakdown in communication that it is not in the best interest of the children to put decisions on hold until the parents can go through a dispute resolution procedure.
These are rarer than you think, as taking away a parent’s right to have equal input on the child’s upbringing is a major reduction in rights.
The default is usually joint legal custody, and it will take some work to sway a Judge away from that.
The Court, in some cases, will award sole legal custody to a parent, but usually only after a showing that the parties have such a significant breakdown in communication that it is not in the best interest of the children to put decisions on hold until the parents can go through a dispute resolution procedure.
Important clarification: If you are awarded sole legal custody, you still have an obligation to try and reach an agreement with the other parent. It just means that if no agreement can be reached, one parent can make the decision. Sole legal custody does not give you the right to cut the other parent off or keep them away from doctor appointments and school. It simply says that if there is no agreement, parent X gets final say.
These situations are rarer than you think, as taking away a parent’s right to have equal input on the child’s upbringing is a major reduction in rights. The default is usually joint legal custody, and it will take some work to sway a judge away from that
Related: The Most Commonly Used Parenting Plans
Physical custody determines where the child will live on a day-to-day basis and how parenting time is divided between the parents.
There are several versions of “Physical Custody”, but the most common is Joint Physical Custody. This does not mean that it has to be 50/50 parenting time, only that a parent is going to have significant time with the children at their home.
Under Missouri’s new 50/50 presumption law, courts are encouraged to award joint physical custody arrangements that provide both parents with meaningful time. Common joint physical custody schedules include:
If you are doing joint physical custody, the Court will also designate one parent’s address for the children for mailing and education purposes (i.e., what school the children attend based on the address).
The other option is that a parent has “Sole Physical Custody to (Mother/Father) and Visitation to (Mother/Father)”. In other words, sole physical custody is when one parent has primary physical custody and the other parent has visitation rights.
This could also be “supervised visitation” to a parent, which means that the Court will order that a parent’s time with their children is supervised by someone, and usually spells out who that person is. If you are doing supervised visitation, there should be no overnights with the parent who has supervised visitation.
If you have sole physical custody, your address will be used for mailing and educational purposes for the children.
In other words, sole physical custody is when a Mother/Father has physical custody and the other Mother/Father has visitation rights.
The major difference between Joint Physical Custody and Sole Physical Custody with Visitation is not much in the initial Order.
Parents can have nearly equal time and one parent can get sole physical custody.
The major factor, and why you may want to fight for this, is that if a Motion to Modify is ever filed to change the parenting plan, you need to show that there has been a material and continuing change in circumstances for the children or the parent that has physical custody.
If you have joint physical custody, then a change for either parent would qualify.
However, if a parent who does not have physical custody has a continuing and material change in circumstances, the Court should not modify the parenting plan based upon current statutes.
So, the big deal, and the main reason to fight for joint physical custody rather than just visitation, is preparing for future modifications more than anything.
The major difference between Joint Physical Custody and Sole Physical Custody with Visitation is not much in the initial order. Parents can have nearly equal time and one parent can still get sole physical custody.
The major factor, and why you may want to fight for this, is that if a Motion to Modify is ever filed to change the parenting plan, you need to show that there has been a material and continuing change in circumstances for the children or the parent that has physical custody.
If you have joint physical custody, then a change for either parent would qualify. However, if a parent who does not have physical custody has a continuing and material change in circumstances, the Court should not modify the parenting plan based upon current statutes. So, the big deal, and the main reason to fight for joint physical custody rather than just visitation, is preparing for future modifications more than anything.
Missouri requires all divorcing parents with minor children to submit a detailed parenting plan within 30 days of service or filing an entry of appearance. This comprehensive document serves as the roadmap for how parents will share responsibilities and make decisions about their children’s lives.
Missouri law specifically outlines what must be included in parenting plans:
Detailed Custody Schedule:
Legal Custody Framework:
Financial Arrangements:
If parents cannot agree on a parenting plan, Missouri courts are encouraged to enter temporary orders quickly to ensure both parents maintain meaningful contact with their children during the proceedings. These temporary arrangements do not create preferences for final custody determinations but provide stability during litigation.
In contested custody cases, Missouri courts may appoint a Guardian ad Litem (GAL) to represent the child’s best interests. This is particularly common when there are allegations of abuse, neglect, or when parents have significant conflicts that make joint decision-making challenging.
Missouri law mandates GAL appointment in cases involving:
The GAL conducts a thorough investigation that typically includes:
The GAL then provides the court with recommendations for custody arrangements based on their investigation. While judges are not bound by GAL recommendations, they typically give them significant weight in their decisions.
Custody orders are not permanent and can be modified when circumstances change significantly. Missouri law requires demonstrating a “substantial and continuing change in circumstances” to modify existing custody arrangements.
Typical reasons for custody modifications include:
To seek a custody modification, parents must:
In high-conflict cases, courts may order comprehensive custody evaluations conducted by qualified mental health professionals, typically psychologists with specialized training in family dynamics.
Custody evaluations generally include:
The evaluator produces a detailed report with specific recommendations for custody arrangements, parenting schedules, and any necessary interventions such as therapy or parenting classes. These evaluations can be expensive, typically costing several thousand dollars, but provide courts with objective professional assessment of family dynamics.
Missouri courts evaluate numerous factors when determining custody arrangements, always prioritizing the best interests of the child. Key considerations include:
Based on my years of experience representing parents in custody matters, here are essential recommendations:
If a GAL is appointed to your case:
Child custody cases involve complex legal standards, detailed procedural requirements, and significant long-term consequences for families. Experienced family law attorneys bring crucial advantages:
At Haefner Law Office, we’ve helped numerous families navigate these challenging situations, using our extensive experience to achieve favorable outcomes for our clients and their children.
Understanding the difference between legal and physical custody is fundamental to making informed decisions about your children’s future. With Missouri’s recent emphasis on equal parenting time and the complexity of modern custody law, having knowledgeable legal guidance is more important than ever.
Whether you’re facing an initial custody determination or seeking to modify existing arrangements, the key is to focus on your child’s best interests while protecting your parental rights. The legal system provides frameworks for these decisions, but every family’s situation is unique and requires careful consideration of all relevant factors.
If you would like to know more about the types of custody or have any questions about your specific situation, please feel free to contact the St. Louis family lawyer at Haefner Law Office at 314-200-6101 for a free 30-minute phone consultation where we can dive into the facts of your matter and see what type of custody you should be asking for.
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