Jeffrey R. Kays

In my family law practice I am often asked, “why is the mother always favored to win custody?” My answer is typically, “they’re not.” Or maybe better put, they’re not supposed to be. I can understand the misconception that the mother is always favored in a custody dispute. For millennia mothers have traditionally been the caretakers and nurturers of our children while the father’s role has been to leave the home and provide for the family’s necessities. Times have changed, haven’t they? There was once a presumption that children should always stay with the mother following a divorce. That is no longer the case. Most states have passed laws doing away with the custody preference of woman over men. Missouri has adopted a “best interest of the child” standard. It is presumed in Missouri that it is in the best interest of a child to have “frequent, continuing and meaningful contact with both parents” and from having both parents “participate in decisions affecting the health, education and welfare of their children.” This means joint physical custody and joint legal custody is where the court should start. These presumptions are rebuttable. The court can find that it is not in the child’s best interest for one or the other parent to have joint custody.