I am often faced with questions from both sides of a case regarding what people often refer to as “50/50 custody.” It is quite often that people indicate they want “50/50″ or state that they’re fighting against their ex who wants “50/50.” Ironically, in the same sentence, some people ask, “what does that mean?”
Keeping in mind that the term “custody” is no longer used in Colorado, people often ask about “50/50″ or “equal custody” related to what we attorneys call “parental responsibility” or “decision making.” By this, I mean the right to make major decisions for the child. This generally relates to major decisions regarding health, education, medical care, religion, and the general welfare of the child. The reality today is that most family law courts in the Denver metropolitan area follow the presumption that joint decision making or “50/50″ legal custody is in the best interest of the children. Thus, I often say that barring instances of substance abuse, domestic violence, severe mental illness, or a demonstrated apathy towards making decisions, people will end up with joint or equal decision making. Battles over decision making or what used to be termed “legal custody” are not as common today as they were in the past. I believe the word is out that, barring extreme circumstances, the court will make it joint.
Once the joint decision making is ordered, parties to a custody case, or divorce with children, must still understand how it works. In essence, if one party believes that Timmy needs a tutor or Sally needs braces for cosmetic reasons, that party must confer with each other and the presumption is that they will agree on the issue. If they do not agree, each party has equal veto power. Thus, at times, court battles can arise over what decision is proper. Technically, a court cannot make a major decision for the parties. It can potentially change decision making, perhaps even as to that one issue, so that the child can get what he or she needs.
The bigger meaning of “50/50 custody,” as put forth by some clients, or potential clients, relates to actual physical custody, or visitation time. Most people stating “50/50″ mean equal time (182.5 days per year). When I first started practicing law a couple of weeks ago (just kidding). When I first started practicing law in the 1990’s, it was quite common for fathers to truly be “every-other-weekend” dads. They might get a dinner visit each week. The good ones might get an overnight visit, or two, during the school week. Over the years that has changed.
Starting roughly 5 or 6 years ago, we family law attorneys started hearing rumors and rumblings that the courts were all going to “50/50.” Over the last few years, the pendulum has definitely swung in favor of equal custody or visitation. Much of this is based on a study of college students from divorced families, which concluded that the ones who were happiest had gone through childhood with a maximized amount of time with both parents. The study results have gained traction and have worked their way into the judicial psyche of both courts and experts who investigate custody issues in divorce or custody cases (Child and Family Investigators). When these rumors first started, I still adhered to the notion that “50/50″ was generally reserved for the best of parents, meaning fathers who were truly involved in their kid’s life.
Today, comporting with my moral compass to be honest, I am often left telling clients that if a person breathes oxygen, has children, and is not an alcoholic, abuser, or mentally ill, the father is likely to get “50/50″ parenting time. This sounds great if I am representing that Colorado father. It doesn’t sound so great if I am representing the Colorado mother. I vigorously represent both.
Though not all cases are the same, it has become easier and easier for the system to fit many of them into the category of 50/50. This is particularly true in divorce cases in which the children have grown up in the same home with both parents, or in custody cases in which the parties were not married, but were an intact family. Whether “50/50″ is right or wrong, good or bad, the idea is likely here to stay. I have heard a CFI testify on the stand to the effect of “we look at each case from the standpoint of 50/50 and ask ‘why not?’.” Fathers should not be denied time because of their gender. Nor should mothers be divested of being mothers because all cases should fit into a mold. Perhaps there is no easy answer.
The next question becomes how to arrange that “50/50 custody” so that it works. There are many practical ways in which an equal parenting time or visitation schedule can be implemented.
1. For older children, such as those 10 to 12 or older, a week-on/week-off schedule might work. At these ages, the kids are theoretically old enough to go that long without seeing either parent. Week on, week off also cuts down on visitation exchanges, which can be a tense time for all in some families.
2. When kids are in that 8 to 12 range, parties could do a week-on/week-off schedule with a mid-week overnight for the parent not exercising the week of visitation with the children, such as on a Wednesday night. Under this scenario, the children do not go more than 3 or 4 days without seeing both parents.
3. Another popular or common schedule is what we Denver area family law attorneys might call a 5-2-2-5 schedule. For example, we could say mother has Monday and Tuesday overnight each week and father has Wednesday and Thursday overnight each week. The parties then alternate the weekend, defined as Friday to Monday morning. This way, the kids are never away from either party for too long. One drawback to a 5-2-2-5 schedule is the amount of transitions. There are also other variations to this schedule that can be employed if 5 days is too long for the children.
4. “50/50 custody” can also be implemented with a schedule that affords one parent more time during the school year and the other parent more time during the summer. To keep it “50/50,” the parties, or their Plog & Stein family law attorney, must pay attention to detail in formulating the schedule.
“50/50 custody” does not work for all families, for various reasons. It is not handed down by all judges. It is not written in stone. However, in reality, it is becoming more the norm in divorce and child custody cases in Denver. As such, it is important for people to understand the ins-and-outs. Don’t listen to your friends when they tell you “50/50″ is automatic. Talk with a family law attorney. We can analyze your case and tell you whether you have a shot at getting “50/50″ or whether you have a shot at fighting off a request for “50/50.” We represent both moms and dads, men and women. That’s what we do.