It’s been long understood that children benefit from having married parents. Studies show that overall, these children tend to be better supported financially, do better in school, have lower rates if risk-taking behaviors, and tend to be more accomplished as adults, which leads most laypeople to assume that, naturally, separated and/or divorced parents should have equal custody of the minor child(ren), if the courts are doing their job right. Afterall, the US has the world’s highest rate of children living in single-parent homes, so isn’t 50/50 the closest possible thing to a traditional parental arrangement and thereby in the child’s best interest?
Well, the California courts don’t see it that way.
In the state of California, there are some custody “presumptions”, including (1) California Family Code § 3040, which states that parents should have joint custody (meaning shared, but not necessarily equal) unless otherwise appropriate; (2) California Family Code § 3020, which states that a child should have frequent and continuing contact with both parents; and finally (3) California Family Code § 3020, which states that the health, safety and welfare of the child are the primary concerns when determining what constitutes their “best interest”. There are fundamental reasons that 50/50 custody is not presumptive, and these reasons always boil down to one key factor: that a family law custody order should always be what the child needs, not what the parent does. Mind you, it is not that 50/50 cannot be the best custodial arrangement for a child, but the court does not presume that this is the case.
The court must first take into account the family’s specific circumstances when ordering a timeshare; the first, perhaps most obviously, is pure logistics:
- Where does each parent live and work, and where is the child’s school or daycare in relation to either or both residences?
- What are the schedules of the parents and how do they conflict with the schedule of the minor child?
A court is unlikely to order 50/50 if it means the child is stuck in the car every week for a four-hour, one-way commute to Mom or Dad’s house, or if it interferes with their schooling, extracurriculars, and other obligations. It is also unlikely that 50/50 is feasible if one of the parents frequently travels for work or if their schedule is unpredictable. The court may consider the child’s “status quo”, and, as the child ages and becomes more capable of developing their independent preference, the court may take that preference under consideration as well.
A parent’s location or schedule may also mean that they are unable to meet the child’s ongoing special (or specific) needs, in such a way that makes 50/50 impossible. For example:
- A very young child has cystic fibrosis and needs to be administered breathing treatments throughout the day, but Dad is at the office from 9am-6pm;
- The child needs speech therapy three times a week, but the speech therapist’s office is 50 miles from Mom’s house;
- The minor child is still breast-feeding and needs to eat every two to four hours.
Something the court will also consider is the history and lifestyle of the parents. A parent will not have custody or visitation with a child who is protected from them by an active restraining order. A parent in active addiction may only have limited timeshare with the child, with the opportunity for custody to increase after a defined period of consistently clean drug tests or professional custody evaluations.
Ultimately, every case is different, and every custody arrangement will be too. In a dream world, maybe everybody would have 50/50 custody, but in our reality every parent and child is living a life with an infinite number of moving pieces, the most important of which are the child’s physical, mental, emotional, and educational needs. The courts will not rule based on a parent’s sense of entitlement or fairness. The court will not make a ruling based on family law mythos and misinformation on #familylaw TikTok. Mothers do not have a presumptive right to custody over fathers. What the courts will do, is assess your situation from several angles, and make a determination accordingly, which may require a one or several hearings, or, in contentious cases, a trial. The attorneys at THE ZHOU LAW GROUP APC are ready to help you design an arrangement that is suitable for you and your child, and to build the strongest supporting case possible before putting your custody proposal before the judge.
Related Post: So You Want 50/50 Custody Pt. 2
