English
EspañolMissouri Custody
Custody
Basic info and definitions
What types of custody are there?
There are four main types of 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 a way that ensures the child has frequent, continuing, and meaningful contact with both parents.
- 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
1 MO ST § 452.375(1)-(3)
Who can get custody?
Custody can be given to either parent or to both parents.1 A judge cannot give preference to either parent because of that parent’s age, sex, or financial status. A judge also cannot give preference to either parent because of the age or sex of the child.2
In certain circumstances, custody or visitation can be given 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 give custody or visitation to the third party; and
- either:
- each parent is unfit, unsuitable, or unable to be a custodian; or
- the well-being (welfare) of the child requires it.3
If the judge believes it is necessary to give custody or temporary custody to a non-parent, the first preference will be to give it to someone who is related to the child by blood (consanguinity) or marriage (affinity). If there is no relative willing to accept custody, then the judge can give custody to someone else who the judge believes is suitable and able to provide an adequate and stable environment for the child.4
1 MO ST § 452.375(5)
2 MO ST § 452.375(8)
3 MO ST §§ 452.375(1)((4)); 452.375(5)((5))
4 MO ST § 452.375(5)((5))(a)
The custody process
What factors will a judge consider when deciding custody?
The judge will make a decision about custody based on what s/he thinks is in your child’s best interest. If the parents have not reached an agreement on all issues related to custody, then 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 parents’ wishes about custody and the proposed parenting plan submitted by both parents;
- the child’s need for frequent, continuing, and meaningful relationships with both parents;
- the ability and willingness of each parent to act in a way that considers the needs of the child;
- the child’s relationships and interactions with his/her parents, siblings, and anyone else who may significantly affect the child’s best interests;1
- the child’s adjustment to his/her home, school, and community; Note: The judge cannot decide custody based only on the fact that a parent sends his/her child to a home school or family paced education school (FPE);2
- 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;1
- the child’s unblocked (unobstructed) input about custody, free of coercion or manipulation, which could be told to the judge without the parents present;3 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.4
Note: If the judge finds there was domestic violence and gives the abuser custody anyway, the judge must write a decision explaining why this is in the child’s best interests based on the facts and the law.5
Any custody order must include a specific written parenting plan. The parenting plan can be submitted by the parents and approved by the judge. Or, if the parents cannot agree, the judge can make the parenting plan.6 If the judge finds there was domestic violence, the custody and visitation orders must be written to protect you, your child, any other children in your home, and anyone else in your home who was the victim of domestic violence.7
1 MO ST § 452.375(2)
2 MO ST § 452.375(2)((5))
3 MO ST §§ 452.375(2); 452.385
4 MO ST §§ 452.375(2); 452.400(7)
5 MO ST § 452.375(2)((6))
6 MO ST § 452.375(9)
7 MO ST §§ 452.375(2)((6)); 452.400(1)((4))
Will the judge always give equal parenting time?
Under Missouri law, there is what’s called a “rebuttable presumption” in favor of equal parenting time. This means that the judge must assume that it is in a child’s best interest for both parents to have equal parenting time or approximately equal. However, one or both parents can present evidence to change the judge’s mind. The judge can give an order giving one parent more parenting time than the other only if:
- The judge finds that there was a pattern of domestic violence;
- The judge decides that it would not be in the child’s best interest for the parents to have equal parenting time based on the factors listed in What factors will a judge consider when deciding custody?; or
- The parents have reached an agreement about all custody issues. They can then give their agreement to the judge and ask for it to become a court order.1
1 MO ST § 452.375(2)
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;
- incest;
- 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
However, 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 decides 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 still give 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 orders visitation, the judge must:
- consider the abusive parent’s history of causing anyone, or the future likelihood of him/her 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 given 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)), (1)((4))
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 the offender is charged with the crime, the judge is supposed to automatically put a temporary stop (“stay”) to any paternity proceeding involving the child and the alleged (putative) father. This “stay” will remain in effect until there is a final outcome in the criminal case.1
If you do not allow the rapist father to have visits with the child 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.2
1 MO ST § 452.374(1)
2 MO ST § 452.374(2)
Steps to file for custody
Considerations before filing
Before you file for custody, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.
However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.
Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.
You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page.
In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.
Step 1: Prepare for the case
Learn about what types of custody are available and how domestic violence might affect custody in your state. Think about what you will ask for, what would be best for your child, and what would be safest for both of you.
You can prepare for court by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest factors” that a judge looks at to determine what’s best for your child. You can see What factors will a judge consider when deciding custody? for more information.
Custody cases are complicated, so you may want to get a lawyer. If you can hire someone, you can use this list of questions as your guide when deciding which lawyer to choose. If you can’t hire a lawyer, you may at least want to try getting a free or low-cost consultation to help you make a legal strategy for your case.
Step 2: File and serve the custody petition
The legal paperwork that starts a custody case is called a petition. You may file your custody petition in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.
The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.
| If you and the other parent are… | Then you can usually file for custody in… |
|---|---|
| married and getting divorced | the divorce case. |
| married but not divorcing | a separate custody petition. |
| not married | a separate custody petition, but legal fatherhood (paternity) may need to be established first or during the custody case. |
Sometimes, non-parents can also file for custody or visitation rights. To find out about filing as a non-parent, go to Who can get custody? or talk to a lawyer.
The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our Missouri Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.
Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for an order of protection and get temporary custody as part of the restraining order.
After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.
Step 3: Preliminary court dates
The next step in the custody process is to have “preliminary” court dates. Preliminary means introductory or preparatory. These might have a different name in your state, such as “first appearance,” “status conference,” or something else. They are when certain issues can be dealt with in the early stages of the case. Some of the issues that might be dealt with are:
- problems with service of process;
- referrals to mediation;
- temporary custody and visitation orders; and
- pretrial motions.
During this stage, the judge will often give temporary custody and visitation orders that last while the case continues. In some cases, the judge may assign a guardian ad litem or an attorney for the child.
For more information to help you prepare for the preliminary court dates, go to The first appearance in our Before the Trial section.
Step 4: Reach an agreement or go to trial
There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.
Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.
Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.
Step 5: Options if you disagree with the order
If you disagree with the judge’s order, there are a couple of legal actions you would need to file right away, such as a motion for reconsideration or an appeal.
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.
Each state has a set time limit to file these actions, usually ranging from 10 to 60 days. To know your case’s exact timeframe, you should ask an attorney in your state.
You might also be able to ask the judge to change your order in the future if there is a “substantial change of circumstances” after the case is decided. You can do this by filing a motion or petition to change (modify) the order. However, usually, this can only be filed under certain circumstances. Here are a few examples of events that might be considered substantial changes in circumstances:
- The other parent gets sent to jail or charged with child abuse or neglect;
- The other parent is not following the custody and visitation order; or
- Your child’s needs change in a big way.
After a custody order is issued
Can the non-custodial parent have access to the child's records?
Both parents generally have the right to get a child’s important records and information, including the child’s medical, dental, and school records. An exception is if a parent was denied custody or visitation rights for the reasons explained in Can a parent who committed domestic violence, child abuse, or sexual assault get custody or visitation? If you have custody and the non-custodial parent was given restricted or supervised visitation because of domestic violence, the judge may order that any reports and records given to the non-custodial parent not include your address or the child’s address. Also, if you have custody and you are enrolled in Missouri’s Address Confidentiality Program, the judge must order that any reports and records given to the non-custodial parent not include your address or the child’s address.1
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.2
1 MO ST § 452.375(12)
2 MO ST § 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. Or, if the other parent is denying or interfering with your custody or visitation rights for no good reason (without “good cause”), 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. A copy of the motion and summons must be personally given (served) to the respondent by a process server or sheriff. The case must be resolved within 60 days.2
After the judge holds a hearing on the motion for contempt or the motion for a family access order, if the judge decides that the custody or visitation order was not followed, without good cause, the judge can:
- give the parent who was denied visitation make-up parenting time with the child that is the same amount or more than the amount of time 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 parent who was denied visitation and the child;
- post a bond or security to ensure future compliance with the court order;3 and
- pay any reasonable expenses that the other parent had because of the denial or interference, including attorney’s fees and costs of a legal proceeding to enforce custody or 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.
If I move to a new state, can I transfer my child custody case there?
After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.
