What is Joint Custody? (Part 2 of 2)

By March 15, 2012Child Custody
By Paule, Camazine & Blumenthal, P.C. of Paule, Camazine & Blumenthal, P.C. posted in Child Custody on Thursday, March 15, 2012.

By David M. Slaby

This article continues the prior discussion regarding legal terminology as it may relate to a child custody case. This article will explain the differences between joint legal custody and sole legal custody and joint physical custody and sole physical custody.

As explained in the earlier article, the main child custody statute, §452.375, requires a court to first consider awarding joint legal and joint physical custody in a child custody determination. The legislature has declared that this custody arrangement is the preferred custody arrangement unless the court finds reasons to deviate from that preference.

Joint legal custody is an appropriate award where the parents demonstrate willingness and ability to share rights and responsibilities of raising their children. Commonality of beliefs concerning parental decisions and ability of the parties to function as a parental unit in making those decisions are two important considerations in determining whether joint legal custody is in the child’s best interest. Where the parties are unable to communicate or cooperate and cannot make shared decisions regarding the welfare of their children, joint custody is not appropriate. If the court finds that joint legal custody is inappropriate and instead considers sole legal custody, the court will consider which of the parents is unwilling or unable to cooperate and freely communicate with the other parent in an effort to share decision making responsibilities. If a parent is awarded sole legal custody, he or she will make decisions for the child without an obligation to confer with the other parent.

Regarding joint physical custody versus sole physical custody, the biggest way to distinguish between the two is how much substantial time was awarded to both parents. Even in a case where the court awards sole physical custody to one parent, if the case is reviewed on appeal and the appellate court determines that substantial periods of time were awarded to both parents, the appellate court will determine that the custody award was actually joint physical custody award. It is important to reiterate that the custody statutes do not require a parent be designated as the primary parent or the residential custodian. Those designations have been declared improper by appellate courts in Missouri. Instead, the court is required to award either sole custody to one parent or joint physical custody to both parents and designate which parent’s address shall be the child’s address for mailing and educational purposes. The amount of time awarded to each parent is the most important part of a physical custody parenting plan.

One other important consideration concerning sole versus joint physical custody is that the standard under which motions to modify are determined is set by that custody award. If a parent is awarded sole physical custody and the other parent files a motion to modify his or her periods of time with the children, the court is required to consider only the best interests of the children in determining whether a modification of visitation is warranted. On the other hand, if the parents are awarded joint physical custody, the parent seeking to modify the physical custody schedule must prove that facts have arisen since the prior decree or that were unknown to the court at the time of the prior decree constituting a change in the circumstances of the child or his custodian which necessitate a modification of custody. The standard to modify a joint physical custody award is higher than the standard to modify visitation only. With visitation, the court can modify the schedule based on the best interests of the child. To modify a custody decree, however, the court must first find that a change of circumstances has occurred of the child or the custodian and then must determine whether the modification is in the best interest of the child.

Part 1

Part 2

David M. Slaby

David M. Slaby

Experienced St. Louis trial attorney David Slaby has handled cases in all areas including general civil litigation, family, juvenile, and criminal law, representing victims of personal injury and negligence, probate matters, guardianships of children and adults, worker’s compensation, and appellate work in his over fifteen years of legal practice.

Leave a Reply