So you want 50/50 Custody

I think the most common phrase I hear when a parent comes into my office to talk about child custody is the phrase 50/50 custody. And when I am representing my client before the court, I try to always warn them to not use this phrase unless they want to hear a somewhat cliché lecture from the judge or child custody mediator (now officially called a child custody recommending counselor, 'CCRC'.  The thought behind the little court lecture is that parents shouldn't view custody of their kids as some sort of property right, and like they are dividing up the spoils from their relationship split. While I understand the court's rationale for giving the lecture, I feel like these knee-jerk-type reactions, and the slap downs that happen toward parents who mention 50/50 custody, has become all too easy and pervasive.  I think it makes sense to pay respect to the perspective of the parents as well, even when they slip and use the phrase 50/50. Parents have a vested interested in their kids. They brought them into the world and they want to be involved. Granted many parents need some help with their co-parenting skills, and the way they act at times while trying to come to terms with the reality of their situation with their kids while living apart is often immature, and sometimes outright crazy. Regardless of the situation, the judges and other court personnel shouldn't fall into the temptation toward treating parents who want to have their children in their care half the time, "50/50" as if they are somehow expecting something that is not feasible or unreasonable.  In fact the California Family Code 3080 states that there is a presumption that it is in the best interest of kids for parents to have joint custody when parents agree to share custody. What this means is that it is already expected by the law and law makers that kids should share their children jointly when they can make it work because the kids will do better when both parents are consistently and regularly involved. The courts have concluded that it is in the best interest of kids when they have continual and frequent contact with both parents.  Unfortunately, what has become the normal routine in many counties in California is that the court works this equation in the opposite direction. What I mean is that the court personnel start with one parent  having the kids during the school week (this is usually with mother but not always), and the other having alternate weekends, shared holiday time, and vacations. This "traditional" schedule has become so pervasive that in some counties it is almost impossible to break this mindset and auto-pilot like routine that is occurring in the courts.

Some lawyers and judges will no doubt argue that joint custody means joint legal custody, meaning both parents have the right to make legal decisions regarding the health, safety, and welfare of their children,  and not joint physical custody. The code does say that the court can designate and order one parent to be the primary custodial parent. It says the court may make this determination after discovering information that would support such an order. The default position should be that parents should share custody. What the court routinely does is take the position that kids should be in one home and sleep in the same bed during the week when they are in school. While this often may make sense in particular cases, it isn't always the best scenario for other cases. When one parent does a much better job with school work and daily routines, and while the other has been neglectful in these respects, the "traditional" schedule may make the most sense when considering what is best for kids. However, more thought needs to be given on a case by case basis. In many of the cases I have worked on, both parents are very involved in school, medical appointments, sports etc.  I strongly believe that when both parents are responsible and both parents want to be the best parent they can be, it is a disservice to the children by the court to avoid looking at each situation carefully. Moreover, the court should begin with the position that both parents need to be, and should be involved as much as possible with the work and routines of life with their kids. Many of my clients are very responsible and motivated people who want to see their kids succeed. If the court doesn't give them a fair chance at being involved in a consistent and positive way, kids suffer. We shouldn't simply take a fallback position and conclude that if one parent has been home more in the past than the other parent, then that parent is the parent who should have primary physical custody. In a split both parents need to have the opportunity to show they can be involved and act as a consistent and positive influence in the lives of their children. The upside for kids can be really big when it works.

So in situations where a mom and dad are very encouraging to their kids, who are supportive and involved a "50/50" schedule makes sense. If the parents are emotionally supportive and responsible, the kids will thrive. To simply take the position that being in the same spot every night is in the best interest of the kids is too simplistic and really just a lazy approach to making court orders.  The routine of sleeping in the same bed and being around the same parent every day shouldn't be the main considerations. What about the parent who makes the kid feel special and important? What about the parent who is a positive influence and encourager? What about the parent who wants their kids to do well in life?  You know the parent who makes sure the kids are taught how to be responsible and respectful, and what it means to work for the things we want and need in life.  Allowing kids to live with one parent because that parent is home more is a superficial position to take. There is so much more to being a parent than just being around physically.

So what can parents and their attorneys do to break through the fallback position of the court that routinely orders the every other weekend schedule. First of all it starts with the mindset. A parent should expect that they are valuable to their kids. A parent should expect that the court should consider the positive influence they as the parent of their kids are. Your attorney should help you present all the facts to the court. Your declaration (your story and facts) should focus on all the positive things you do for your kids and on all the positive things you want to do in the future for your kids. You should be prepared to be open and assertive with the court. Speak in matter of fact terms. Let the judge know that you are the parent and that you aren't accepting some cookie cutter order. You can be respectful but you have to be assertive.  And if you don't at first succeed, then set a trial. Keep pushing. I don't meant act crazy and obsessive. I do mean stand up for yourself and your kids. And put your money where your mouth is. If you really want to be involved with your kids at least half the time, then be involved like you say you are and want to be. Go to the school and get involved, the doctor appointments, the sports stuff, encourage your kids and connect with them. Focus on them when they are with you. Don't worry about the ex, don't even give them a thought. Move forward in life and be as positive as you can with your kids. Drop all the baggage. If the other parent won't co-parent, then you will have to do the best you can. Do your part and don't waste time trying to fix the ex. If you are truly motivated by the love for your kids, you won't get bogged down with all the petty arguing with the ex.

So you might say this all sounds good but I have been to court and the court "screwed" me. Well if your kids are young and you are doing all you can to be the best parent you can be, you can go back to court. You can be more involved. Maybe you need to adjust your work schedule so you have a day off during the week day. Maybe you need to move closer to where the other parent lives so it's easier to share time with your kids. Maybe you need to have a long talk with your new significant other, you know the one who may be having a negative impact on the situation.  Maybe you need to get to know the other influencers of your children such as teachers, coaches, friends etc. You can't expect the court to see your point of view if your efforts are less than genuine and meaningful. You can't expect your kids to want to be with you if you are only half way involved. .

Here is a quick summary of some things you can do:

-- Consider if you can change your work schedule

-- Consider your geographical location in relation to the other parent

-- Go to the school, learn the teachers' names and school schedule

-- Go to school programs and sports

-- Co-parent as best you can and don't be petty

-- Look for ways to be a positive influence with your kids and don't focus on the faults of the ex.

-- Document your involvement but don't obsess, the focus is on being a great parent, not winning in court. You have a better chance at doing well in court when it becomes clear that your kids love being with you and that you are a positive force in their lives.

-- Don't post stupid stuff on social media, don't send mean texts, don't be self centered, oh and  don't worry about child support (yes I said don't worry about child support...really).  If you pay child support, then oh well. Don't get a car payment or a boat payment or...or ...or. Don't allow child support to dominate your life and thinking. If you do you will regret it later in life when you look back. There is something freeing about saying to yourself, I don't care about the money and I refuse to worry about it.

In conclusion I'll just say that I realize there are things I didn't mention, like all the drama from the ex, like how the ex's lawyer lies, like how the judge doesn't always listen well, like how you live too far way, and how you can't quit your job or change your schedule. I realize life has real challenges, and the court system sometimes straight up sucks. But complaining and pointing out all the excuses does nothing to improve your situation or the situation of your kids. If you can't make big changes, you may have to take smaller steps for now. Maybe 50/50 isn't feasible for you. Maybe you will have to be the best parent you can be without having your kids half the time. Call them, text them, be "there" when you do have them, write them positive letters. The point is, complaining won't help, and it will only bring you down. If you want your kids to want to be with you, then be a parent your kids want to be with.

Scott Mitchell

Attorney from Modesto California.