Custody issues tend to be the real battleground in divorce and related proceedings. And I truly mean battleground because this is among the most undesirable law suits to be a part of as a client. Missouri has erected the “best interests of the child” standard and it dominates the divorce litigation realm.
In determining custody a court must decide what is in the best interests of the child. The court is to consider all relevant factors and make a determination as to custody in accordance with the following factors:
(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child’s adjustment to the child’s home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence as defined in section 455.010 has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian. The fact that a parent sends his or her child or children to a home school, as defined in section 167.031, shall not be the sole factor that a court considers in determining custody of such child or children.
There is much more to the equation than just reliance upon these factors and that is where a great divorce lawyer shines. These factors play a role in every aspect of the case and the best interests of the child can come in to play at any time. Some attorneys create arrangements that work in the now, however the future must always be considered when dealing with custody and divorce because children will grow out of lifestyles as quickly as they do their clothing.
An arrangement for divorce where child support is ordered and a $500 day care amount is calculated in to one parties expenses and thus reducing the amount they have to pay or increasing the amount they have to receive will no longer be a fair arrangement to one of the parties because they will be paying for expenses that do not exist. Child support is not a free ride and arrangements must be properly created in order to avoid the free ride at the time of divorce, not several years and may thousands of dollars in arrears later.
The most overlooked aspect of these factors in divorce is their use in settlement negotiations, with a divorce settlement always being highly desirable over an expensive drawn out divorce trial, because proper best interests based leverage is very potent at the early stages in a case because lawyer fee’s are seemingly more realistic to the parties. If an arrangement can be created that is reasonable, in the best interests of the child, and avoids unnecessary mud throwing/expensive litigation then in most scenarios we can assemble the victory formation. Other times custody matters can become a series of compromises by both parties so that neither party achieves everything they want in the divorce
This is not to say that every case should be settled, but settling a custody matter in a divorce has substantial benefits over a nasty, mud slinging, and expensive trial. The parties never engaged in such a bitter dispute and generally retain a better co-parenting relationship. Less lawyer fees are required from both sides. The parties are able to keep their hands in on crafting the agreement and a third party judge does not simply render an order that the parties must abide by. Finally and most importantly, the children are brought in to much less of a divorce litigation case. The chances of the parents speaking badly about the other parent in front of the children are minimized. The chances of the children having bad feelings towards marriages, considering the nastiness of their parent’s divorce, are also minimized.