Missouri Divorce and Family Law Blog : Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

Recent ruling:
TC A Minor Child, by and through JC, Next Friend and JC, Individually v SI
Missouri Court of Appeals, Western District - WD7455

Father appeals from a judgment entered in the Circuit Court of Clay County in an action to establish the paternity of his daughter, T.C.C. Father challenges the trial court's decisions related to custody, visitation, and child support.

AFFIRMED AS MODIFIED.

Where Father was awarded parenting time starting 7:15 a.m. Wednesday with an ending time alternating between 4:45 p.m. Thursday and 4:45 p.m. Friday, half of holidays, and an additional five consecutive days over the summer, the trial court erred in declaring Mother to have sole physical custody in light of the significant parenting time awarded to Father.
 

Though the trial court mislabeled the physical custody awarded in its judgment, it is unnecessary to remand for correction of the decree where this court can simply recognize and clarify that he is a joint physical custodian. 

The question of whether or not a sole custody award to one parent with parenting time to the other parent is truly a sole physical custody award, the question is whether or not the parenting time awarded to the other parent is "significant".  It has been held that a typical every other weekend with one evening per week schedule is "significant".

It is this author's belief that in most situations where the parents share parenting time on some sort of schedule, it is a joint physical custody arrangement rather than "sole custody with visitation"   Care should be taken in the drafting of the parenting plan and the judgment to reflect the proper terminology, as sole custody and joint custody are clearly  very different It would be only in the most restrictive of parenting plans where "sole custody with visitation" could legally exist.

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On August 20, 2008 the Advisory Commitee of the Supreme Court of Missouri issued a formal opinion that the practice of Collaborative law, a form of practice where clients agree from the outset to settle their case out of court through negotiation rather than litigation, is ethical and permissible in Missouri. 

In the area of family law, both parties and their attorneys formally agree that no documents will be filed with the court until the case is resolved.  Rather than taking a course of litigation, where papers are filed and served, discovery is exchanged, and the case is prepared for trial, the parties negotiate in a series of 4 way open discussions.  In these discussions, the parties agree not to go to court, or even threaten to, and all information is exchanged freely and openly to assist the attorneys in resolving the case in a cooperative manner.  In the rare event that the case is not settled, both parties must retain new trial counsel and the collaborative attorneys must withdraw.

The primary concern of the Advisory Committee was that the client understand the pros and cons of the collaborative process and sign a written consent and contract providing that the attorney has no choice but to withdraw should the case not settle.

Collaborative family law has been around for many years, and is quickly gaining momentum and popularity in Missouri as a superior way to resolve domestic relations cases

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