Section 9.2 Legal Custody

• Library: Family Law Deskbook and 2014 Supp

A. (§9.2) Legal Custody

Section 452.375.1(2), RSMo Supp. 2011, defines “[j]oint legal custody” as follows: “(2) ‘Joint legal custody’ means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority.”

In Luther v. Vogel, 863 S.W.2d 902 (Mo. App. E.D. 1993), the court awarded joint legal custody, despite hostility between the parties, based on its finding of substantial evidence that the parties had both the ability and the desire to cooperate in the rearing of the minor child. See also In re Marriage of Spence, 943 S.W.2d 373 (Mo. App. S.D. 1997), in which the court reaffirmed the trial court’s award of joint legal custody, finding, “Although there was evidence that the parents’ attitude towards each other was somewhat acrimonious, there is no indication that the parties were not emotionally equipped to cast those feelings aside when making decisions concerning the child’s upbringing.” In re Marriage of Spence, 943 S.W.2d at 379 (quoting Gulley v. Gulley, 852 S.W.2d 874, 876 (Mo. App. E.D. 1993)). But in Kroeger-Eberhart v. Eberhart, 254 S.W.3d 38 (Mo. App. E.D. 2007), the parties’ assertions that they hoped to talk and work together once they had a court order to do so failed to overcome evidence of the parties’ inability to function as a parental unit in making decisions for the benefit of the child. See also Burkhart v. Burkhart, 876 S.W.2d 675 (Mo. App. W.D. 1994), in which the trial court erred in awarding joint legal custody when the parties could not even agree on appropriate visitation. In In re Marriage of Sutton, 233 S.W.3d 786 (Mo. App. E.D. 2007), the appellate court reversed an award of joint legal custody that compelled the parties to communicate by fax because they could not communicate in any other way. Id. at 793.

In In re Marriage of Earls, 77 S.W.3d 741 (Mo. App. S.D. 2002), the father filed a motion for contempt when the mother enrolled their son in a different school without the father’s consent. The court affirmed the trial court’s decision to deny the motion, holding that when parents have joint legal custody and the record indicated that the mother had consulted the father about the issues, the mother could not be held in contempt for making a unilateral decision.

Parents are required to...