Clients’ most urgent concern when confronting divorce is often the children. How often will I see them? Who will make decisions about my child’s health or learning issues?
It’s important to understand that under Missouri law there are two types of custody: legal and physical. Legal custody – or decision-making authority - refers to who makes the decisions about the child’s welfare and development. This includes decision-making about such questions as religious education or whether and where a child will attend summer camp. Physical custody – better called parenting time - refers, of course, to where and in which household the children will be physically present at specific times.
Either type of custody can be “sole” to one parent or “joint” (shared) by both parents. If a couple has joint decision-making responsibility, they must first discuss and then agree about all issues relating to the child’s wellbeing before decisions are put in place.
Sole decision-making responsibility to one parent may occur when there is a lot of ill will between the parents and they are unable to have productive discussions about the children.
Joint parenting time usually means that each parent has substantial, but not necessarily 50-50, parenting time with the children.
When a parent is awarded sole parenting time, he or she has all or most of the parenting time with the children. This may be appropriate when one parent is impaired in some way and is unable to manage substantial parenting time.
Each parent’s rights and responsibilities for the children will be set out in a parenting plan that will become part of your divorce judgment. The court system uses a “check-the-box” form parenting plan that will likely not be suited to your family’s specific needs.
One of the greatest advantages of resolving your divorce collaboratively is that you and your spouse can, with the help and support of collaborative professionals, including a child specialist (a mental health professional with training specific to child development issues), develop a parenting plan that addresses your children’s unique issues now and over time, as the children grow.
Your child specialist will help you make decisions about parenting time and decision-making that meet your children’s needs and are most workable for you and your spouse. A parenting plan developed by a judge who does not know you and your spouse and does not love your children as you do - and one who is likely to use a “form parenting plan” - can result in long-term hostility and repeated litigation between the parents.
You and, most importantly, your children deserve a divorce resolution process that carefully considers the children’s needs. Resolving custody issues with the help and support of the professionals available to you, your spouse and the children in the collaborative process is much more likely to result in a parenting plan that not only meets your family’s unique needs, but also stands the test of time so that the parents will not need to return to court later to modify the plan.