by Cynthia Albin and Allison Schreiber Lee

We all saw the press and heard it from current and former clients: there is supposedly a new law that requires all parents in custody matters to have equal custody time with their children.  But is that what the law really says?  Sec. 452.375.8 RSMo., now says (2016 additional language in italics):  “As between the parents of a child, no preference may be given to either parent in the awarding of custody because of that’s parent’s age, sex or financial status, nor because of the age or sex of the child.  The court shall not presume that a parent, solely because of his or her sex, is more qualified than the other parent to act as a joint or sole legal or physical custodian for the child.”  If it was not clear before, then the additional language makes clear that custody is not the result simply of mom being “mom” and dad being “dad”.  However, the language does not mandate that a child’s time be shared equally between parents.

What does this new language mean as we look at developing and proposing Parenting Plans?  Judges still have to consider the 8 factors enumerated in Sec. 452.375.2 RSMo., in their analysis.  Those factors include the wishes of both parents and the child, the need for frequent, continuing and meaningful contact between parent and child, which parent will allow such contact, the mental health of the parents, whether a parent intends to relocate, and other family members and others in the child’s life.  

As a step further in that analysis, what this new language seems to have done is shifted the burden from asking the question, “Why should the parents have equal time?” to “Why should they not?”  Answering that question requires a further examination of a parent depending on the allegations and concerns.  Impairment of a parent in some manner may affect his/her ability to parent the child.  For example, a parent may have a history of mental illness or shows signs of mental stress; a psychological evaluation may be necessary to diagnose what that illness is, if any, and determine whether that illness affects that parent’s parenting capacity (ability to parent the child).  If there are issues of substance abuse (alcohol and drugs), then testing and evaluation may be necessary to prove the parent’s addiction as well as how it affects their ability to function and parent the child.  While anecdotal evidence may help prove impairment to some extent, expert evaluation and testimony may be necessary to show these limitations and impairments more fully and definitely to the court.  All of these issues involve the review of various records of the parties and child, including medical and mental health records, and testing results.

Age of the child may also affect that parenting schedule.  When young children (infants and toddlers) are at issue, it may be appropriate to have a different custody schedule during the earlier years with changes to the schedule as the child grows older.  School age children have their own considerations as well.  School and education is often a significant issue as to whether a parent is able to parent a child.  Can he/she deliver a child to school timely?  Is the distance between a parent’s residence and the child’s school affecting his/her ability to do so?  Is a child’s school work completed on the days when that child is with a certain parent?  Does a parent go to conferences and other activities at school so that they are familiar with how a child is progressing?  School records are a helpful tool when there may be an issue.    

Another consideration in the sharing of a child is legal custody, meaning the right to be involved in the decision-making for a child.  If this is a parent’s concern, he/she will have to show a history of the parents’ inability to communicate and/or agree on significant issues involving the child.  Proof may come from emails and text messages, medical records and school records to show disagreement.  

The status of the law with respect to physical and legal custody is struggling to change and expand as the definition of “family” changes and expands.  From the recent Eastern District case, Morgan v. Morgan, to cases allowing Third Party Custody Rights, there is still more to know and learn.  Join us in October at the BAMSL Family Law Section luncheon (date TBD) for a continuing debate and discussion of custody issues.  

This article originally appeared in St. Louis Lawyer magazine, July 2017. Republished with permission from the Bar Association of Metropolitan St. Louis and Allison Schreiber Lee.