Can Child Custody Be 50/50?

The journey of divorce with children.

What happens to the kids in divorce?

The growing child custody trend with millennials is to have equal parenting time. In fact, to a certain extent, this generation, as a whole, is amazing at coming up with a Parenting Schedule that gives everyone equal time. So what does equal look like?

Joint Legal Custody

This legal term basically means that each Parent has equal say in important matters of the child… medical decisions, school decisions, and anything major that needs parental consent. This can also include decisions that might not be considered major like participation in sports or going to summer camp. It does not include other things like bedtime routine or sleepovers with friends. Certainly the Parents can extend their Co-Parenting Relationship to include additional issues and concerns, but there is no “legal” right to make these determinations or force the other Parent to comply (as long as it does not put the child in danger or impacts their health or ability to perform in school). What happens in each home is left to the parent exercising their time.

There is also another component to legal custody — who has educational address?

Educational address may seem like something that is not a big deal, but it can be a HUGE deal down the road. First, the determination of child support is biased towards the Spouse with educational address. Second, if the Parent with educational address wants to move to a location that changes the child’s school, the other Co-Parent may need to legally challenge the move if the Parent does so without an agreement. The Court will always favor the child staying in the same school if that is possible. Obviously, the Court would look at all factors which impact the minor child at the time of a trial.

What happens if the Parents can’t agree on important things?

This is the million dollar question… What happens when you can’t agree?

The truth is, with the more traditional schedule, the parent with educational address just kind of did what they wanted. The Co-Parent was treated a bit like a second class Parent. The Court does not seem to want to hear these types of disagreements and allows unilateral parenting without a lot of consequence. The biggest stick the Judge would use was on extra-curricular activities… if a Parent does not agree, they don’t have to pay. Why did this happen? To be frank, it is because there are a lot of dead beat parents out there who have little to do with their child. The Court’s job is to focus on the needs of the child. They are not going to keep a child from playing sports because the other Parent is too cheap to pay. Unfortunately, in some cases, this ends up looking more like Sole Custody. This might be a result that is just under the circumstances or it might seem completely unfair in other cases when you have an active Co-Parent. It will be interesting to see how decisions about the child is impacted in this new world of 50/50 schedules.

Let’s use Corona Virus as an example. It has exploded many Co-Parenting relationships. The truth is, there is a huge divide out there with Parents on just how cautious one should be with the child. Should they be at home with virtual learning or in a classroom? Can they attend a family holiday event without wearing a mask INSIDE? Can they take a child out of town when it is not necessary? I had one person not want their child to go to Disney World because they felt it was “reckless”. Now what? The issue with the vaccine might not be as much of a problem, but we shall see if it is.

So what do you do if there is no agreement on something important?

Mediation is a great way for the Parties to talk it out and find a compromise. It does not mean you have to totally 100% agree with the other Parent’s choices or practices, but it does mean that you respect their role as the Co-Parent enough to find middle ground. To make this work, each Parent needs to be willing to bend and give up a little.

What if, like in the Corona example, the Parties are so polar opposite that they can’t find middle ground? You have to either use more of a Parallel Parenting concept or take it to the Judge. Parallel Parenting is a bit of a godsend for high conflict Co-Parenting relationships. You set some boundaries that the Parties can agree upon and then, frankly, what happens at the Co-Parent’s house is none of your business (unless it is abuse of the child). If the child gets to stay up later at the Co-Parent’s house, so be it. If the Co-Parent has a bunch of short term relationships and there is a new person in their house every week, there is nothing you can do about it. If the child lives on electronic devices and plays mature rated video games, there probably is nothing you can do. The good news is that you have positive influence over your child at your home. This should be your focus — not what is going on over at the other Parent’s home.

At the end of the day, the real issues with making decisions about the child are determined on how well the Co-Parents get along. Are they on the same page about most things? Are they willing to compromise? Do they want things done their way because it is the only way? Some people have a hard time letting go of control over raising their child. What they don’t see is that even if the Parties had stayed together, they still would not have agreed and they still would have to compromise. So Co-Parenting is really the same in a relationship that lives in the same home and one that does not in most ways. The important thing is that both Parents are active in their child’s life. Agreeing 100% on everything is not a reality. Focus on how you can work together. The more you do this, the more likely it is when something is important to you, the other parent will be willing to give in on that one thing. The more flexible you are with the other parent, the more flexible they tend to be with you (hopefully).

Joint Physical Custody

This gets us back to the parenting time. The Court has a trend towards equal parenting time. Why? Because more and more people…

1. Feel it is important for both Parents to have significant time with the child.
2. Want to have time with their child and feel they deserve it.
3. Define themselves as being a good parent by putting their child first and themselves second… it just looks different these days.
4. Believe that a child should have time with both Parents.
5. Work split shifts.
6. It is a way not to pay child support (sorry the cynical attorney in me does believe this is a motivation in many of these cases).

In my opinion, in talking to mothers, this is born out of being a child of divorce themselves. They do not seem to define being a good mom as being the primary person to take care of the child. For them, it is a positive to have time for themselves. They don’t see this as being selfish or loving their children less as the women from the generations before them may have believed. They now see that if they allow 50/50, this is what makes them a good mom and fair to the other person. They truly believe that allowing dad equal time is best for their children.

Dads these days are not built the same in a lot of ways. For the most part, these men were already performing roles in the home that had been traditionally done by moms prior to the separation. They were helping with baths, bedtimes, making lunches for school, helping with homework, etc. In some cases, they were the ones who primarily were responsible for these tasks in their homes. They want to have as much time with their children as possible. Even if they had not been participating in this way prior to the separation, they want to do so now. The Courts seem to be willing to allow them this chance.

Is there a downside to 50/50 custody?

It depends.

1. What type of schedule do you have?
2. How old is your child?
3. Are both Co-Parents able to get along and work together?
4. Do both Parents exercise their time?

When you are working on a schedule for your child, you need to consider their age. You also need to be willing to change it over time as they get older. For example, a baby needs to be with each Parent frequently because they live in the short term. This is what their brains understand at this stage. This means that both Parents need to see the child every few days or maybe even have at least a few hours every few days. Yet a child in Middle School and High School needs more of a week on and week off schedule. The back and forth creates more anxiety and is just plain annoying for them. Going in depth on custody schedules is for another article on another day, but it is fair to say that the science does support certain schedules for certain age groups.

The problem with 50/50 really comes up when you have a parent who is super controlling, feels entitled to make decisions unilaterally, and is truly not interested in Co-Parenting. Has the court grown weary of these court battles and see 50/50 as a solution to give someone their way? Honestly, I do feel that this is a component of why the Court has moved towards a 50/50 schedule. Certainly, having the Parents find a way not to see each other is a bonus the Court loves. It is much easier for the children to be picked up and dropped off at school and/or childcare, than to have see each other and yet another opportunity to fight in front of the child. The rise of Parallel Parenting movement as a solution to High Conflict Co-Parents is the other reason the Court seems to gravitate towards these 50/50 schedules.

The question remains… do these schedules work when the Parties hate each other?

My current husband fought to get 50/50 back when my step-son was just a baby. It was unusual back then for sure, but if you knew my husband you would know that nothing was going to keep him away from his son. They used a 2/2/3 schedule. The only way it worked is because the two Parents chose to make it work. It was fine when Carson was young, but once he hit Middle School he hated it. At first, he said he wanted to come and live with us full time, but Todd and Carson were willing to compromise with the week on week off schedule because they knew Mom would never agree to long weekends. Unfortunately, she would not agree to the week on week off either. After all, she was then divorced from husband number 2 and had other children on the 2–2–3, one of which was young enough that it was good for that child. In the end, they had a nasty court battle. What Carson needed did not matter. it was about Mom and what Mom’s family (all 3 kids) needed. In fact, the Judge actually said that what he wanted did not count at all. Result — My husband lost time. Mom got more child support. But Carson won in the end because she did allow him to switch to week on and week off not long after the court case was over. After all, she got more money and got to say she won the court case. My husband was willing to pay the money so his son could be happy. It would have been better if they could have come to this agreement in mediation and save a bunch of unnecessary attorney fees. Sometimes, parenting time is just complicated and each Party has such different perspective and needs that an agreement can’t be found. The best interest of the child gets lost. It becomes about the Parents and not the child.

In many cases I have had, you do see Mom’s willing to do a 50/50 just to keep Dad from throwing a fit. Keeping the peace can only be had if 50/50 is in place. I find that to be a horrible reason to pick this schedule. However, the reality is that to fight a court battle, you may be in the case $10,000 to $30,000 and people just can’t afford it.

So what happens if the Co-Parent get their way of not paying child support but then does not exercise the time?

Here is where the 50/50 becomes suspicious if a Co-Parent who does very little with the child prior to separation, now tries to become “Super Mom” or “Super Dad”. Here is the problem… there is no way to tell if this is about money or wanting parenting time until after the case is over. Well, almost no way. If the Co-Parent can’t really exercise the Parenting Time, then it is obviously about the money in my mind. Why? Because the Court looks at overnights as credits for calculation of child support.

When you are a Parent who has done everything for your child, it is hard to believe the Co-Parent is really going to step up to the plate now. You feel might feel insulted, taken advantage of, and that they are taking something away from you. I just want you to think of one question….

If the other Parent will truly step up and be the type of parent you are, would you give them equal time?

This does not mean they have to do everything you do, the way you do it. This means they are an active Parent who takes care of your child.

So what do you think?

Can you see the advantage of your child being in both households about the same amount of time? Can you find a schedule that allows each Parent to have significant time? How can you be creative about this if the work schedules are not perfect? Can we throw out the child support chart and find another amount that seems fair? How can each Parent have quality time? The Parties can be in control of creating a schedule that is custom fit for their family.

What should your parenting time schedule look like?

I think you can see, that a parenting schedule should be made for your family. Don’t use the cookie cutter parenting plan. Be willing to put your child’s needs first. Think about quality not quantity. Maybe that is more time over school breaks or the summer. Maybe that is making summer look completely different than the school year like swapping the schedule over the summer or going every other week in the summer only. It can be about creating traditions with the time you do have. Maybe there are holidays you don’t care about and that is a way for the Co-Parent to have more time. Just remember, you don’t have to sacrifice your quality time just to work around the Co-Parent’s schedule. This still should be fair to both Parents. There are tons of ways to be creative with the schedule. Just make sure you don’t make your child miserable in the process.

The truth is that the schedule is not what makes you close to your child… how you spend your time is what makes it important.

Regardless of whether to figure out a 50/50 schedule or not, there is one thing that does not change — you are the child’s Parent and they love you. The most important thing is finding a way to preserve your relationship and have the time to work on the child/parent bond in a way that is not just being in the same room together so many days of the week. If you know the other Parent is a good parent to your child, then maybe giving them equal time is the right thing for your child. I encourage you to talk it out. Use mediation as a way to explore possibilities that you might not think about on your own.

For more on using mediation as a way to work together to create your custom parenting plan, check out my free publication “5 Secrets Ingredients To A Successful Mediation.”

PS… Can I ask a favor? If you liked this article, can you give me some claps? For more content on Divorce, Paternity, and Custody After the Legal Case, be sure to follow me.