50/50 Custody: Functional over Fairness
by Rob McEwan
The are four main categories in family law where children are involved: Conservatorship, Possession and Access, Child Support and Medical Support. Often, parents start a case asking for “50/50 Custody.” I hear those terms…a lot. It is a misnomer. We don’t use the term “custody” in our legal pleadings. When people use that term, often they are referring to the possession and access (also known as “visitation) between parent and child.
If there have been no other legal proceedings involving a child, the presumption under Texas law is that one parent is the “primary” parent and the other parent has a schedule of possession and access. The default schedule in Texas is referred to as the Standard Possession Order. The Standard Possession Order provides for Weekends (1st, 3rd and 5th), Weekdays (Thursday) and Holidays. This schedule can also be expanded with earlier start times and end times. However, if you do the calculation, you will find that it is not equal time. For some parents, this is the primary consideration when parents decide to live separately. While there are some pros and cons to each side, this article is meant to simply explain what can and usually does happen when “50/50” is granted.
There are two main types of 50/50: week on/week off and 2/2/3. These are my terms and others may use alternatives that mean the same thing. The more popular shared schedule is the week on/week off. This usually involves Parent A having the kids from either Friday or Sunday until the following Friday or Sunday. Then, Parent B has a turn of equal time from Friday or Sunday for seven days. Occasionally, there is a mid-week period of possession where the other parent not entitled to the week gets to see the kids on a fixed basis. For example, if it’s Parent A’s week, then Parent B has all Wednesdays, and, in turn if it’s Parent B’s week, then Parent A has all Thursdays. This mid-week visitation is especially helpful if a parent is concerned about the other not taking the children to an activity that’s set on a particular day, i.e. sports.
The second example of share possession is 2/2/3. That’s where Parent A has all Mondays and Tuesdays, then Parent B has all Wednesdays and Thursdays, and then the parents rotate weekends. And, if you’re really talented, some parents choose to rotate the Weekdays every other weekend. (As the spouse of a teacher who has to figure our where kids go after school, this is especially difficult to keep track). The obvious advantage of this schedule over a week on/week off is that you will generally not go more than 5 days without the kids.
Generally speaking, for either 50/50 to work, the parents should live proximately close and the kids should be capable of physically handling this type of schedule. I think it’s prudent for parents to consider whether they could personally stomach the schedule they’re asking of their kids. Though, for many parents that live with a 50/50 schedule, they love it and wouldn’t have it any other way. For some, the request for 50/50 comes across as an attempt to simply avoid paying child support.
If you’re considering a 50/50 schedule, talk with your family law attorney about what schedule makes the most functional sense for you and your children. Don’t choose a schedule because it sounds “fair.” Family law courts often don’t deal in fairness, they deal in function. They have a new normal to figure out and the parent with the most functional suggestion is often the one whose proposal is ordered.