When children are involved in an abusive relationship, they may become the primary focal point for survivors. Leaving an abusive relationship can be difficult when you are uncertain about the care and custody of children.
If you are leaving an abusive partner and share children with that person, then when you leave, you will automatically share equal rights to custody of those children. This can be changed with a formal court order. If the co-parent is your current spouse, then issues of child custody, visitation, and child support will become a part of your divorce or legal separation case. If you are not married to the co-parent, then issues regarding the children will be handled separately by the court. This may include a declaration or finding of paternity (a child’s legal father), child custody, visitation, and/or child support.
Paternity. In order for a father to have any custodial rights to a child, or for a mother to receive support from a father, they must be the child’s father as determined by law. In most cases, this means that one of the following must take place:
- The biological mother and father both acknowledge that someone is the father of a child, or
- The father’s name appears on the child’s birth certificate
If neither of these is the case, then you may ask the court to order a DNA test and determine who the biological father of the child is. Once the court determines a child’s father and acknowledges them as the legal father of the child, the parents have the ability to seek orders for parenting rights including child custody, visitation, and/or child support.
Child Custody. Child custody refers to who has legal responsibility for a child. This is divided between physical custody (responsibility for a child’s physical body) and legal custody (responsibility for major decisions in a child’s life). Child custody in Missouri is determined based on what is in the best interests of a child. While this term may sound vague and subjective, Missouri law lays out the 8 factors that the court considers when determining the best interests of children:
- 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 and the ability and willingness of parents to actively perform their functions as mother and father for 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;
- Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
- The child’s adjustment to the child’s home, school, and community;
- 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;
- The intention of either parent to relocate the principal residence of the child; and
- The wishes of a child as to the child’s custodian.
(Source: RSMO 452.375(2))
In most child custody cases, especially cases with accusations of violence, a guardian ad litem (GAL) may be appointed to determine the best interests of children and present their findings to the judge.
Visitation. The term “visitation” is frequently confused with custody. Really, the two are different and are determined separately by the court. While custody refers to overarching responsibility for a child, both physically and legally, visitation refers to the actual residential schedule a child follows when spending time with both parents. Some common visitation schedules are Week On-Week Off (where a child spends one week with one parent and then the next week with the other parent), Siegenthaler (where a child has one primary residence but spends Wednesday nights and every other weekend with the other parent), 5-2 (where a child spends Monday and Tuesday with one parent, Wednesday and Thursday with the other parent, and alternates weekends between the parents), and 2-2-3 (where a child spends two days with one parent, two days with the other parent, and three day weekends with the first parent, then the pattern repeats).
Myth: If parents share joint custody, the child will spend half of their time with each parent.
Parents may share joint custody of a child and have any type of visitation schedule. The custody arrangement refers to who is responsible for a child’s well-being (physical custody) and important decisions (legal custody). While sharing joint custody, parents may have a schedule that equally divides a child’s time between households or they may have one primary residence with occasional visits to the other parent. The same is true for sole custody arrangements, as one parent may be the prime caretaker or decision maker even though the parents spend equal time with the child.
Child Support. According to the State of Missouri, every child should be supported by two parents if both are living. This means that all parents need to provide some degree of physical care and/or financial support for a child. The amount of child support owed by one parent to another is determined by a mathematical calculation using a document called a Missouri Form 14. There are two ways to get an order for child support:
- Family Support Division (State). If child support is your only area of concern, you can request a child support case through the Missouri Department of Social Services. These cases generally happen by mail and over the phone so you do not have to actually go to court. Keep in mind that if a child has no legal father, the state may require that someone be declared the child’s legal father before issuing an order for child support. Also, if you apply for any benefits through the state, they may mandate that a child’s father be found and made to pay support before supplementing your income with any financial assistance programs. You should speak with a lawyer if you are concerned about the potential custody implications of declaring paternity.
- Family Court. If you have a child custody case in family court, either on its own or as part of a divorce or legal separation, then child support may be determined at the same time.
Child support can be issued and/or modified at any time by either the state or family court, regardless of who issued the first order. The latest order will supersede all prior orders. Therefore, you cannot receive support from both places at once.
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