Basic info and definitions
What types of custody are there?
There are four mains types of custody: joint legal custody, sole legal custody, joint physical custody, and sole physical custody.
Joint legal custody is when the parents share the decision-making rights, responsibilities, and authority relating to the health, education, and welfare of the child. The parents are supposed to consult with each other when exercising their decision-making rights, responsibilities, and authority.
Sole legal custody is when one parent has the decision-making rights, responsibilities, and authority relating to the health, education, and welfare of the child.
Joint physical custody is when each of the parents has significant, but not necessarily equal, periods of time with the child. Joint physical custody is supposed to be shared by the parents in such a way that ensures that the child has frequent, continuing, and meaningful contact with both parents.1
Sole physical custody is when the child primarily lives with one parent. The other parent may or may not have visitation with the child.
1 MO ST § 452.375(1)
Who can get custody?
Custody can be granted to either parent or both parents.1 A judge 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.2
In certain circumstances, custody or visitation can be granted to someone else, known as a third party. In order for a non-parent to get third-party custody or visitation, the judge must believe that:
- it is in the best interests of the child to do so; and
- each parent is unfit, unsuitable, or unable to be a custodian; or
- the well-being (welfare) of the child requires it.1
If the judge is believes it is necessary to grant custody or temporary custody to a non-parent, the first preference will be to give it to someone who is related by blood (consanguinity) or marriage (affinity) to the child. If no such person is willing to accept custody, then the judge can give custody to someone who the judge believes is suitable and able to provide an adequate and stable environment for the child.1
1 MO ST § 452.375(5)
2 MO ST § 452.375(8)
The custody process
What factors will a judge consider when deciding custody?
If the parents have not reached an agreement on all issues related to custody, it will be up to the judge to decide. When deciding custody, the judge will look at what is in the best interests of the child and will consider all of the following factors:
- the wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
- the needs of the child for a frequent, continuing, and meaningful relationship with both parents;
- the ability and willingness of both parents to act in a way that considers the needs of the child;
- the interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
- the child’s adjustment to his/her home, school, and community;
- the mental and physical health of all individuals involved, including any history of abuse of any individuals involved;
- whether either parent plans to relocate with the child;
- the child’s wishes as to who should get custody, which could be told to the judge without the parents present;1 and
- which parent is more likely to allow the child to have frequent, continuing, and meaningful contact with the other parent. Note: If either parent has violated the parenting plan without good cause, this will be held against that parent when the judge evaluates this factor.2
Any custody order must include a parenting plan that is submitted by the parties and approved by the judge, or one that is written by the judge if the parents cannot agree on a parenting plan.3
1 MO ST §§ 452.375(2); 452.385
2 MO ST §§ 452.375(2); 452.400(7)
3 MO ST § 452.375(9)
Can a parent who committed domestic violence, child abuse, or sexual assault get custody or visitation?
A parent cannot get custody or unsupervised visitation if the parent, or any person who lives with that parent, has been convicted of one of the following crimes where the victim of the crime was a minor:
- rape in the 1st degree, 2nd degree;
- statutory rape;
- sodomy in the 1st degree, 2nd degree;
- statutory sodomy in the 1st degree, 2nd degree;
- child molestation in the 1st degree, 2nd degree;
- sexual misconduct involving a child;
- sexual abuse in the 1st degree, 2nd degree;
- sex with an animal - the requirement that the victim must be a minor clearly doesn’t apply to this crime;
- enticement of a child;
- abusing an individual through forced labor;
- human trafficking for the purposes of labor or for the purposes of sexual exploitation;
- sex trafficking of a child in the 2nd degree;
- contributing to human trafficking through the misuse of documents;
- trafficking in children;
- abuse or neglect of a child that involves abusive head trauma;
- genital mutilation;
- child used in sexual performance;
- promoting sexual performance by a child.1
If the parent, or someone who lives with the parent, was convicted of any other crime listed in chapter 566 or chapter 568 or a similar crime in another state, where the victim was a minor, the judge can give the parent custody or visitation.2
The judge can deny a parent visitation if, after a hearing, the judge determinates that visitation would endanger the child’s physical health or harm his/her emotional development. The judge must consider evidence of domestic violence; however, the judge could grant visitation to the abusive party if the judge believes it is in the best interests of the child to do so.3 If the judge grants visitation, the judge must:
- consider the abusive parent’s history of causing anyone, or the likelihood of causing anyone:
- physical harm or the fear of physical harm;
- bodily injury or the fear of bodily injury;
- assault or the fear of assault; and
- make sure that the visitation order will protect the abused parent, the child, and any other children living in the household from any further harm.4
If an abusive parent is granted restricted or supervised visitation, the parent must show proof of treatment and rehabilitation before the judge can change the visitation order to unsupervised visitation.5
1 MO ST §§ 452.375(3); 452.400(1)((2)(a))
2 MO ST §§ 452.375(3); 452.400(1)((2)(b))
3 MO ST § 452.400(1)
4 MO ST § 452.400(1)((3))
5 MO ST § 452.400(2)((3))
My child was conceived from rape. What happens if the offender tries to establish paternity or file for visitation?
If you report the rape to the police and criminal charges are being brought against him, the judge is supposed to automatically put a temporary stop (“stay”) to any paternity proceeding involving the child and the alleged father. This “stay” shall not be lifted until there is a final outcome of the criminal charges. If you deny visitation to the rapist/father while the criminal case is pending, this cannot be used against you in a future custody case when the judge considers which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent.1
1 MO ST § 452.374
After a custody order is issued
Can the non-custodial parent have access to the child's records?
Both parents have the right to access records and information pertaining to a minor child including, but not limited to, medical, dental, and school records unless a parent has been denied custody rights or visitation rights for reasons explained in Can a parent who committed domestic violence, child abuse, or sexual assault get custody or visitation?
If the parents want the schools to send two sets of report cards, progress reports, etc., one for each parent, then the school can charge the parents an administrative fee to cover the costs.
If the non-custodial parent has been granted restricted or supervised visitation due to committing domestic violence, or if you are enrolled in Missouri’s Address Confidentiality Program, the judge can order that the reports and records created as part of the custody case and the school records, such as report cards, must exclude your home address.1
1 MO ST §§ 452.375(12); 452.376
What happens if the other parent violates the custody order?
If the other parent violates the order, you can file a verified motion for contempt. Alternatively, if your custody or visitation rights are being denied or interfered with and there is no “good cause” for the denial or interference, you could file a family access motion. The circuit clerk will give you the form and should explain the procedures for filing a family access motion.1
Within five court days after you file a family access motion, the clerk will issue a summons for the other parent to appear in court and a copy of the motion and summons will be personally served upon the respondent. The case must be resolved within 60 days.2
After the judge holds a hearing on the motion for contempt or motion for a family access order, if the judge determines that the order for custody, visitation, or third-party custody has not been followed, without good cause, the judge can:
- give the parent who was denied visitation make-up time with the child that is equal to, or greater than, the amount of time that the parent was denied; and
- order the parent who violated the order to:
- participate in counseling to educate him/her about the importance of providing the child with a continuing and meaningful relationship with both parents;
- pay a fine to the other parent of up to $500;
- pay the cost of counseling to reestablish the parent-child relationship between the party who was denied visitation and the child;
- post bond or security to ensure future compliance with the court order;3 and
- pay any reasonable expenses that the other parent had due to the denial or interference, including attorney’s fees and costs of a proceeding to enforce visitation rights.4
1 MO ST §§ 452.375(10); 452.400(3)
2 MO ST § 452.400(4), (9)
3 MO ST § 452.400(6)
4 MO ST § 452.400(8)
Where can I find additional information about custody in Missouri?
You can find additional information about custody on these websites. WomensLaw is not affiliated with them and cannot vouch for the information.
- Paternity and child support information from the Missouri Courts website and from the Missouri Department of Social Services website.
- The Missouri Courts website has information on petitioning for custody.
- The Legal Services of Missouri website has information on custody, visitation, paternity, child support and adoption.