Can I Get 50/50 Custody?

When asked by a potential client whether they can get “50/50” custody, the first thing to be determined is what question is actually being asked. Is the inquiry related to an equal splitting of visitation (parenting time) or an equal splitting of legal custody (parental responsibilities regarding the making of major decision)? Generally, when mentioning 50/50, people are, in fact, referring to the allocation of parenting time.

Whether someone may be able to gain 50/50 custody depends on an array of facts and circumstances tied into their specific situation. Over the course of the last decade, it has become more common for Denver child custody cases to end in an equal parenting time scenario. Though not specifically stated in statute, the general presumption permeating the family law court system is that children derive benefit from maximized time with each parent and that is best achieved via an equal splitting of time.

Though 50/50 parenting time is not mandated by statute, it is a often a realistic outcome in cases with available, safe parents living in relatively close proximity to each other. However, many variables come into play. When talking about a newborn or infant, 50/50 parenting time is less likely unless it can be demonstrated that both parents were significantly involved with the child prior to physical separation and that the child is comfortable with each. In situations in which the familiarity and bond are not significant, 50/50 is less likely when dealing with very young children. However, in those instances, a court may be willing to enter orders with a staggered schedule, with parenting time increasing after specified amounts of time. Though original orders may not ultimately get a parent to equal time, obtaining significant parenting time with a very young child can set the stage for a modification of parenting time, up to equal, as they get older. Once kids start reaching 3 to 5 years of age, equal time becomes more probable.

Another factor affecting the possibility of 50/50 parenting time is residential or geographic proximity. Generally, for equal parenting time to be feasible, the parents must live reasonably close to each other and a child’s school. There is no set rule as to distance. However, courts are sensitive to a child’s needs and are unlikely to order 50/50 in instances in which significant driving is involved. If one parent resides in Parker, with the child attending school in his or her district, and the other parent resides in Westminster, the child would likely be forced to spend at least an hour in the car, twice per day, during week days with the Westminster parent. Generally such a distance is going to be too far. Proximity upon separation and where a parent might choose to live in relation to the other is important. In more geographically extreme cases, 50/50 time is not likely possible, such as if the Westminster parent lived in Ft. Collins or Pueblo. Equal parenting time schedules can come in many different forms and courts are sometimes willing to employ creativity when formulating orders. In the second scenario, the only real option would be for the Ft. Collins parent to have the majority of the summer. Depending on how weekends are allocated, there is a slight chance an equal schedule could be reached.

The other significant factor tying into a 50/50 schedule is availability. In a practical sense, both parents need to be available to care for the child during their allotted time. If one parent works nights or travels significantly for work, 50/50 may not be practical, as they are just not available to care for the child half the time. For parents with odd work schedules, it is advisable to look into what changes can be made early on in a case to accommodate equal time. 50/50 parenting time comes in many forms, such as a week-on/week-off schedule, a 5/2/2/5 schedule, or other conceivable variations. Thus, availability issues may be resolvable to a point.

Of course, in situations in which an unsafe environment exists in one parent’s home due to substance abuse issues, violence issues, or serious mental health issues, 50/50 time is not going to be practical regardless of age, proximity, and availability. Each case is different and consulting with a family law attorney early on in your case will provide insights and guidance as to how to best maximize your position and wishes when it comes time to allocating parenting time.

When people speak of 50/50 or equal custody tied into decision making, it should be noted that joint parental responsibilities is the norm, absent issues which impede a parent’s ability to make sound decisions or a clearly demonstrated inability for the parties to work together.

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