Section 8.2 Custody and Visitation

• Library: Family Law Deskbook and 2014 Supp

II. (§8.2) Custody and Visitation

The primary focus of the parenting plan is on the child custody and visitation provisions. Counsel should be familiar with the terms defined in § 452.375, RSMo Supp. 2011.
The most common parenting plan provisions include a “joint legal custody” provision for the parties but provides for one parent having “primary physical custody.” This “primary” term is not found in the statute and has been declared to
be “erroneous.” See LaRocca v. LaRocca, 135 S.W.3d 522
(Mo. App. E.D. 2004) (citing Loumiet v. Loumiet, 103 S.W.3d 332 (Mo. App. W.D. 2003), and In re Marriage of Parmenter, 81 S.W.3d 234 (Mo. App. S.D. 2002)). The correct terminology is joint physical custody in which the minor children spend significant, but not necessarily equal, periods of time with each parent. LaRocca, 135 S.W.3d at 525; see also § 452.375.1(3). In any plan that does not allow for “significant” time with
one parent, the correct terminology is “sole physical custody.” The trial court is not bound by the parties’ custody designations in a parenting plan; rather, the court should describe the custody provisions realistically, using the appropriate terminology. See Stroebel v. Stroebel, 219 S.W.3d 295 (Mo. App. W.D. 2007).

Keeping the foregoing in mind, counsel should consider whether a label is more important than the specifics of the parenting plan. As a practical matter, labels are more likely to be important to the parents as opposed to the children. What is of the utmost significance to the minor children, in most instances, is the ability to have a meaningful relationship with both parents...