Family law clients frequently ask us to get them 50/50 custody of their children. Their reasoning often goes that 50/50 custody is fair and their children should see both parents equally. That seems perfectly reasonable, but that’s not how the Court will see it, so let’s unpack what families and family law attorneys mean when they say “50/50 custody.”
There is no ‘Custody’ in the law, only Conservatorship, Possession, and Child Support
The problem with asking for 50/50 custody is that clients and family law attorneys often talk past each other when discussing this concept because ‘custody’ itself is not the appropriate legal term per the Texas Family Code. Conservatorship generally refers to the bundle of legal rights and duties involved in parenting. Absent extreme circumstances involving drug use or family violence, most parents in a divorce or custody case will be appointed Joint Managing Conservators, meaning they will share that bundle of rights and duties: exclusively for some, or perhaps independently or by agreement for others. The most important right, the one fought for at the greatest emotional and financial cost, is the right to designate the primary residence of the child. The parent that has this right exclusively will be called the ‘primary conservator’ or be said to ‘have primary.’ The other parent will have a possession order, (maybe every other weekend) and generally also pay child support according to the guidelines in the Texas Family Code. When parents say they want ‘50/50 custody’ they generally mean that they want their children for equal time (possession) where no parent has primary, and each has equal rights (conservatorship), and no one pays child support.
Judges Will Not Order 50/50 Custody
As I mentioned, that arrangement sounds reasonable and fair but in fact it’s rare in practice. The reason it’s rare is because judges won’t order 50/50 custody for a myriad of reasons. First, the court cares much less about what’s fair to parents than what’s in the best interests of children; and research, the Texas Family Code, and their own experience tells most judges that 50/50 custody is not in children’s best interests in most cases. Most courts hold the belief that children do better with stability and routine and the constant changing of residences in a 50/50 possession order denies them that stability and routine. Also, equally sharing rights, duties, costs, and time with children requires extensive, mature, effective communication and unsurprisingly that is rarely present between parents who are suing each other. In fact, I often tell potential clients that if they have to go to Court and fight for 50/50 custody, there is no way they are going to get it.
So how do you get 50/50 Custody?
Even though it’s relatively rare in practice, 50/50 custody does get ordered, mostly by agreement between parents. Even though courts don’t generally feel that 50/50 custody is in children’s best interests, they will still generally order whatever parents can agree is in their children’s best interests. As a practical matter, that means that 50/50 custody will most often be reached by agreement between the parties. Those agreements are generally reached in two very different ways. First, the parties simply don’t contest issues about their children in a divorce and don’t want child support. Often the children are older, maybe in high school, and they are going to go stay with whatever parent they want, and neither parent wants or needs child support so a 50/50 order makes a lot of sense. This type of agreement is often already in place between parents when they separate and before they hire lawyers. The other way it commonly happens is at the end of a divorce where both property and children are heavily contested. Perhaps one parent isn’t getting as much time with their children as they would like, but for whatever reason it’s clear that they will not get more time from Court. In these cases the parent that wants 50/50 possession of their children often simply buys it from the other parent during mediation by agreeing to pay more child support, or give up more assets.
If you want 50/50 custody, get a good lawyer
This article only covers the basic practical and legal realities of 50/50 custody. It does not explain the correct way to calculate child support, the complicated issues involved in drafting an actual 50/50 possession order, or the most effective legal negotiation tactics necessary to actually get you this outcome in a contested or uncontested custody case or divorce. Do yourself and everybody around you a favor and talk with a family law attorney at Springer & Lyle about 50/50 custody. We’ll give you straight talk about whether 50/50 is really right for your family, and we’ll provide creative solutions to get you the best possible outcome for your family law case.
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