Physical custody refers to which spouse is physically with a child (who has “possession”). Legal custody refers to which spouse has the decision-making authority over the children (e.g., what school they attend, health insurance, extracurricular activities, etc.)
In a dissolution of marriage proceeding involving children, it is not easy for one parent to attain sole legal custody of the children. Indeed, both Missouri statutes and case law have announced a preference and inclination toward joint custody. Consider Missouri Statute 452.375.4:
“The general assembly finds and declares that it is the public policy of [Missouri] that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child, except for cases where the court specifically finds that such contact is not in the best interest of the child, and that it is the public policy of this state to encourage parents to participate in decisions affecting the health, education and welfare of their children, and to resolve disputes involving their children amicably through alternative dispute resolution. In order to effectuate these policies, the court shall determine the custody arrangement which will best assure both parents participate in such decisions and have frequent, continuing and meaningful contact with their children so long as it is in the best interests of the child.”
Very generally, Missouri law is pro-family and encourages policies which maintain a cohesive family unit. The legislature has thus enshrined a legal presumption that in those cases when a family unit breaks down, there is a legal preference toward maintaining that unit as best as possible.
Although it is the policy of Missouri to side with joint legal custody, sole legal custody is not uncommon. In fact, Missouri statutes explicitly state what sorts of things should be considered before awarding sole legal custody. Statutory section 452.375.5(5)(a) provides that “When the court finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child, then custody, temporary custody or visitation may be awarded to any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment for the child.”
In other words, as with just about all family law involving children, the best interests of the child is the most important factor. If the court can make a finding that the best interests of the child is served by being with just one parent, then it may enter an award of sole custody. Any evidence that tends to show that one parent is unfit to be around a child, or that the child’s environment is disrupted by being with one parent, would be taken into consideration. Not all evidence, however, is fair game. A court, when making this determination, cannot give preference to either parent because of that parent’s age, sex, or financial status — nor because of the age or sex of the child.
Lastly, the parents in a divorce parents do have a say. I had one client who I represented in Saint Charles County in a divorce case who had two children with her spouse. The divorce was non-contested and the parties had been living apart for a few years, with the children primarily residing with my client. The parties mutually agreed that it was in the best interests of the children that my client have sole legal custody, with the other spouse retaining some visitation rights. The court agreed to this order of sole legal custody, due in part to the fact that the parties were in full agreement on custody. Parental agreement/disagreement, then, can play an important role in a court’s decision-making (see my previous post: “Missouri Division of Family Service: Termination of Parental Rights” for how parental consent is taken into account).