Missouri's Equal Parenting Presumption: Senate Bill 35 and SB 1026 Explained

What Changed on August 28, 2023

Before Senate Bill 35 took effect, Missouri custody cases started from a blank slate. The court evaluated the nine best-interest factors under RSMo § 452.375.2 and crafted a parenting arrangement without any built-in assumption about how time should be divided. In practice, many cases defaulted to one primary parent with the other getting alternating weekends and a midweek evening — a pattern that was common but never required by law.

SB 35 changed the starting point. It established a formal rebuttable presumption that equal or approximately equal parenting time serves the child's best interests. Senate Bill 1026 later refined the statutory language, as discussed below. Instead of asking "how should we split time?", the court now starts with "equal time is the baseline — what evidence justifies something different?"

How the Presumption Works

A rebuttable presumption means the court assumes equal parenting time is appropriate unless a party presents sufficient evidence to overcome it. The burden of proof falls on the parent seeking an unequal arrangement — they must show, by a preponderance of the evidence, that equal time wouldn't serve the child's best interests.

The presumption is automatically overcome in two situations:

1. Written agreement. If both parents have reached a voluntary agreement on a different custody arrangement, the court reviews it to ensure it doesn't harm the child but isn't bound to impose equal time.

2. Pattern of domestic violence. If the court finds a pattern of domestic violence, the 50/50 presumption doesn't apply, and the court proceeds directly to evaluating the best-interest factors with safety as the primary consideration.

Outside these two exceptions, the parent seeking unequal time must affirmatively prove why equal time won't work — not just express a preference for primary custody.

SB 1026: The 2024 Refinement

Senate Bill 1026, effective August 28, 2024, didn't replace SB 35 — it refined it. SB 1026 amended Section 452.375 to tighten the definition of "joint physical custody" and shifted the language from "approximately equal" to "substantially equal" parenting time.

The practical difference between "approximately" and "substantially" is debated among practitioners, but SB 1026's larger impact was directing judges to place heightened scrutiny on several specific variables when evaluating whether the presumption is rebutted:

• Parental cooperation. The willingness and ability of both parents to actively cooperate in raising the child. A parent who obstructs communication, undermines the other parent's relationship with the child, or refuses to co-parent constructively faces scrutiny under this factor.

• The child's specific needs. Physical, emotional, educational, and developmental needs — not generic child welfare, but this child's particular requirements given their age, school situation, health needs, and personality.

• Substance use and mental health. Any history of substance use or mental health conditions that impair parenting capacity. The court isn't evaluating whether a parent has ever had a diagnosis; it's evaluating whether an active, untreated condition affects their ability to provide safe, consistent care.

• Geographic distance. The distance between the parents' residences. A 50/50 rotation that requires a child to commute 45 minutes each way to school every other week may not be logistically sustainable, regardless of both parents' willingness to cooperate.

What the Presumption Doesn't Mean

It doesn't mean every case ends in 50/50. The presumption sets the starting point, not the finish line. Courts regularly deviate when the evidence supports it — distance between homes, a child's age and developmental stage, a parent's work schedule, established caregiving patterns, or the child's own expressed preferences (Factor 9) can all justify a different arrangement.

It doesn't eliminate traditional schedules. A parent who demonstrates that alternating weekends with a midweek overnight best serves the child's needs can still get that arrangement. They just need to prove it rather than relying on it as the default.

It doesn't erase the modification standard. For an existing custody order, a parent seeking modification must still satisfy RSMo § 452.410's requirement of facts arising since the prior decree (or previously unknown facts) and a showing that modification is necessary to serve the child's best interests. The enactment of SB 35 alone is not a substitute for that showing.

How to Argue For or Against Equal Time

If you want equal time: The presumption works in your favor. Focus on demonstrating stability, geographic proximity, cooperative parenting history, and a detailed proposed schedule that shows equal time is logistically feasible. A vague request for "50/50" isn't enough — present a specific rotation (alternating weeks, 2-2-5-5, 5-2-2-5) with overnight counts, holiday provisions, and transportation logistics.

If you're seeking more time: You need evidence addressing the specific factors SB 1026 highlights. Geographic distance, documented parenting difficulties, the child's school and activity schedule, and any safety concerns all help rebut the presumption. Your argument must be specific to your family's circumstances — the court won't deviate from equal time based on general preferences or assumptions about gender roles.

Building Your Case Around the Presumption

Whether you're arguing for or against equal parenting time, the quality of your proposed parenting plan matters as much as the argument itself. Courts evaluate proposals under the nine best-interest factors, and a detailed, specific plan signals to the judge that you've thought seriously about the logistics, the child's needs, and long-term workability.

The Missouri Child Custody & Parenting Plan Guide includes scheduling worksheets that let you map out different rotation patterns with overnight counts, so you can present a concrete proposal that engages directly with the presumption framework.

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