A brief comparison of two states' joint physical care statutes
Posted on 08/31/2016 at 08:21 AM by Mary Zambreno
A new custody law in Missouri that passed unanimously in the Senate and 154-2 in the House attempts to encourage – but not mandate – joint physical care as a baseline for divorcing parents. The new law arose because judges in certain districts could apply a default parenting plan that gave the non-custodial parent (typically, the father in those cases) significantly less time with the child.
- Creates guidelines for parenting plans that maximize the amount of time the child may spend with each parent.
- Requires courts to disclose why shared parenting wasn’t awarded if another arrangement is ordered.
- Requires courts to provide written findings and conclusions in a custody case, which allows the case to be appealed if a party disagrees with a judgment.
- Specifies that courts can’t presume that a parent, solely because of his or her gender, is more qualified than the other parent.
- Prohibits local courts from establishing their own rules, such as having a default parenting plan.
Earlier drafts of the law called for a 50-50 custody division to be the default parenting plan and the burden would be on the parent opposing joint physical care to present evidence to demonstrate that it was not in the best interest of the child.
Unlike Missouri, Iowa’s current laws concerning physical custody have been in place for a number of years. While the Iowa rules regarding physical custody of children do not go so far as to encourage specific guidelines for parenting plans, in 2004, the Iowa legislature amended the statute concerning joint physical care to read, in pertinent part, as follows:
“If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent.... If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child.” Iowa Code § 598.41(5) (2005)).
Like the new Missouri statute, Iowa’s custody statute requires that if joint physical care is requested but denied, the court must make specific findings as to why joint physical care is not in the best interest of the child. When the statute was revised, many family law practitioners in Iowa interpreted it as seemingly mandating a presumption in favor of joint physical care. However, the Iowa Supreme Court, in the Hansen case, clarified that there was no such presumption written into the statute and that the traditional standard – the best interest of the child – continues.
The Hansen Court further went on to clarify the factors in determining whether joint physical care is in the best interest of the child, as follows:
- Stability and continuity of caregiving where there are two suitable parents;
- Ability of spouses to communicate and show mutual respect;
- The degree of conflict between parents;
- The degree to which the parents are in general agreement about their approach to daily matters.
Perhaps Missouri courts will be examining factors similar to the foregoing when providing written findings as to whether or not to award joint physical care on a case by case basis.
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