By Leigh Joy Carson, The Carson Law Firm
In Missouri, the law now provides an almost insurmountable presumption of joint legal custody (decision making) and joint physical custody (parenting time). This is just wrong. I have been handling family law cases for more than 30 years. I was a clerk at the Court of Appeals when the Siegenthaler appeal was being discussed, with particular attention being paid to the trial court’s delineation of which holidays and special days would be shared between the parents, and how. That decision was the basis of a one-page plan for parenting time that was used in St. Louis for many years.
At that time, the discussion centered around whether the midweek visit and the Sunday of the alternating weekend would be overnight. At some point, the visitation credit was introduced, resulting in a credit to the non-custodial parent (virtually always the parent paying support, (see the Torpea decision for the argument for an exception) was introduced, in the name of fairness and it was game on. Parents who had previously shown little interest in actively parenting vigorously fought for and were often given additional overnights. It seems like the thinking was “what is the real difference between returning to the primary home at 8 pm instead of after school the following day.” It turns out there can be a big difference and with 50/50 (equal) custody it can be extraordinary. Not for the parents directly, but for the children.
This is disturbing, because the lodestar in Missouri has always been “the best interests of the child” and a presumption of true joint custody has cast a pall on that essential tenant. We like to brag about our Non-Partisan Court Plan as resulting in the appointment of only the most qualified attorneys to become judges. Why are we handicapping them by dictating how they make what are arguably the most important decisions made in their courtrooms? Why are we forcing parents to compromise their financial security by agreeing to calculate the child support as if the other parent has equal time to protect their child’s emotional well-being and development? Why are we putting judges in a position where their discretion is so limited that they are forcing attorneys and parents into a crucible of negotiation such as when a St. Louis County Commissioner reputedly told attorneys in a case involving custody of a two week old breast feeding baby that she was going to order week on, week off custody because “that is the law.” Of course, the custody was settled on more rational terms, but with great angst and cost (financial and emotional).
Aside from the problems created by the dictate to award equal parenting time, the overwhelming pressure to award joint legal custody can also have disastrous financial consequences. For non-family law practitioners, joint legal custody requires agreement between the parents on major issues relating to the health, education and welfare of the child. While in the overwhelming majority of cases this is not a problem, when the parents are unable to effectively communicate about these issues, the results can be a toxic, combative, expensive mess and the child – the one who is supposed to be the priority – is the one who is hurt. Counseling and orthodontia can’t begin, the band trip is missed, the sports physical has to be done at an urgent care clinic because the insurance changed and the parents cannot agree on a new pediatrician.
There is a solution where there has been a history of dysfunction between the parents: a Parent Coordinator. A Parent Coordinator or “PC” is a specially trained professional, typically an attorney but potentially a therapist, who assists the parents in implementing the terms of the Parenting Plan that has been ordered by the Court. The PC cannot permanently modify the schedule for parenting time but can order temporary deviations. Most often, the PC is charged with resolving decision deadlocks. The PC can only be appointed by agreement of the parents. This is a fantastic resource, but realistically only available to the relatively affluent.
It seems to me that the alternative to forcing parents to accept a PC (judges cannot order a PC but they can be very persuasive) is to revert to the old way of doing things: label the legal custody” joint” and provide that the parties must confer about these issues but in the event of a disagreement, one parent has the deciding vote. Let’s let our Family Court judges do their job and award either sole legal custody or defined legal custody.
In fact, let’s let Family Court judges do what they do best: protect our children who are, after all, our future.