At some point, almost every one of our child custody clients wants to discuss the idea of “50/50 custody.” We often find that what the client means by “custody” is different from what we family law attorneys understand the term to entail. Much of the confusion stems from the client not distinguishing between the two elements that make up child custody: (1) rights and duties; and (2) possession and access. To be clear, in this blog, we are strictly discussing the issue of 50/50 possession and access, meaning the arrangement whereby divorced or separated co-parents have equal time with their children.
Here’s a brief explanation of what 50/50 possession and access usually looks like. There are two 50/50 schedules that are common: week-on/week-off and 2-2-5-5. The week-on/week-off arrangement is a straight forward schedule in which the parents simply alternate possession of the child for an entire week at a time, beginning and ending on a specific day of the week. Under the 2-2-5-5 routine, the child lives Monday and Tuesday with one parent, then Wednesday and Thursday with the other parent. The parents will then alternate weekend possession beginning on Friday. This results in one parent having a 5-day block one week, and the other parent having a 5-day block the following week.
It is important to realize that Texas courts very rarely order 50/50 possession. While some states, such as Arizona, have a statutory presumption in favor of 50/50, Texas does not. In Texas, 50/50 almost always results from an agreed arrangement reached through mediation or informal settlement.
The two main instances in which we’ve seen the Court order 50/50 are:
(1) When the child(ren) are very young and have never lived apart from either parent; and (2) When the parents have been separated for some time and have already been informally exercising a 50/50 arrangement.
Many of our clients are discouraged to hear that 50/50 is an uncommon outcome in a contested proceeding. Our firm is sympathetic to that feeling, however, our experience has given us some insight into why the courts are hesitant to impose a 50/50 schedule. Some of the most common justifications that we have heard judges give for why they do not like to order 50/50:
(1) The week-on/week-off or 2,2,5,5, routines only work if the parties co-parent well together. If one parent is forcing a contested hearing to prove that 50/50 isn’t in the child(ren)’s best interest, then, from the judge’s perspective, it’s obvious that the parties don’t have a good co-parenting relationship;
(2) The reasoning behind the standard possession schedule is that children need consistency. It’s rare that both parents can provide the same level of consistent engagement and routine during the week, so judges prefer to appoint the parent who they feel is best able to provide consistency and routine as the parent who has possession on weekdays during the school year;
(3) The standard possession schedule is not significantly less than 50/50, so there’s no real advantage to a 50/50 arrangement; and
(4) If litigants know that the standard possession schedule is the only likely outcome, then they are less likely to require a contested hearing.
If you think that you may want “50/50 custody,” either in your initial order or in a modification order, then you need to consider the above information before consulting with an attorney. Make sure you understand what you’re asking for when you tell your attorney you want 50/50 custody. Additionally, if child support plays any role in your motivation for 50/50, then be sure to see our previous post on the relationship between 50/50 schedules and child support to further inform your opinion. Finally, keep in mind that an agreement with the other party is the best way to ensure that you get the schedule that suits your family, so try to explore ways to incentivize the other party to agree to 50/50 before you go to court.
