Missouri Equal Custody Law
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A new custody law will take effect in Missouri on August 28, 2016, pursuant to HB 1550. The provisions have been reported to create a new presumption significantly favoring “equal” or “50/50” custodial time Judgments. For instance, a recent Missourian article states that the law is based on research showing that “shared parenting, or 50/50 custody” is best for children. The article further states that the law moves Missouri towards having equal custody as the norm, instead of the exception to the rule. Seehttp://www.emissourian.com/shared-parenting-law-will-take-effect-aug/article_b0e307f6-40fb-5781-9248-0e1103c60365.html
Additionally, I have fielded many calls from parents and attorneys that refer to this new law as an “equal custody” or “father’s rights” bill.
However, a review of the law reveals that dramatic changes may not take place. The law amends RSMO Section 452.375(8) by adding language stating: “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 a child.” This language is a clear instruction to the Court to not discriminate in custody orders based on the sex of the parent. However, the importance of the new provision seems limited since since the previous law already mandated that “no preference may be given to either parent in awarding of custody because of that parent’s age, sex or financial status, nor because of the age or sex of the child.” Also, the U.S. Constitution and other federal law already bans government discrimination based on sex.
The law also amends RSMO Section 452.556(1) by requiring the State Court Administrator to create a handbook that outlines “guidelines . . . as to what is included in a parenting plan in order to maximize to the highest degree the amount of time that the child may spend with each parent.” However, previous versions of this law also required a handbook to be created. There is no indication that the handbook is binding on the Judge, or given any special status under Missouri custody law. It is merely an information guide for litigants. The Judge is not required to maximize a child’s time with each parent.
Finally perhaps the most significant change created under HB 1550 is RSMO Section 452.375(11)‘s mandate prohibiting Courts from entering interim custody orders without notice and a hearing, unless the parties waive these requirements. Thus, if a Judge had developed a practice of automatically starting cases by granting a majority of time to the child’s mother, with a few days of visitation to the father, then this practice would no longer be permissible. Instead, a hearing would required, and the judge would have to consider any given custody schedule, instead of a doing a “one size fits all” plan. It is my experience that the vast majority of Judges already require a hearing for custody orders, and consider all possible custody schedules. However, now all Judges should be required to follow this practice, potentially decreasing some sex discrimination in custody orders.
Perhaps the worst mistake a parent could make is going to Court without representation, assuming that the Judge will now almost automatically grant 50/50 custody based on the passage of HB 1550. A review of the law reveals that this assumption would be erroneous. Parents should hire trustworthy legal counsel to argue to the Judge how the new law impacts their case. Judges should be reminded that sex discrimination is prohibited. Legal counsel will also need to be prepared to argue to the Judge why their proposals are favored according to all the factors need to be considered under Missouri custody law.
Remember: Attorneys at Cline, Braddock & Basinger, are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free appointment!
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