Fighting for the last few percent of 50/50 custody

Posted Saturday, February 6th, 2016 by Gregory Forman
Filed under Child Custody, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I’ve had a few custody cases the past few years in which my client has had a goal of equal time with his or her child only to be offered very close to, but not quite, equal time. Sometimes, when I don’t think my client has a strong position on custody, I might encourage that client to settle on those terms. However, when my client has an equally strong claim to custody, and will not be happy being the “less than” parent, I have supported my client’s decision to proceed to trial. Often I have been able to settle the case at or shortly before trial with my client having equal rights–sometimes because the trial judge sees my client’s position as reasonable and encourages the other side to settle.

Opposing counsel, mediators, and guardians often find this stance absurd. To them rejecting an offer of six overnights every two weeks during the school year and half of Summer and major holidays (basically 45% of the overnights) to incur the expense of further litigation and the risk of doing worse at trial, all with the goal of getting another 18 overnights a year, is inexplicable. For a while I wasn’t certain my clients’ stances made sense even if I felt their goals were reasonable and achievable. Incurring that much risk and expense to go from 130 to 148 overnights is something I would strongly discourage clients from doing. In fact I am somewhat disgusted by clients who push for a few more nights from 109 to 128 in order to reduce their child support obligation. Why is going from 164 to 182 ½ overnights any different?

The answer–the obvious answer–is that being an “equal” parent has tremendous psychological significance to almost all parents. A parent with even 180 overnights is a “lesser” parent to the parent who has 185 overnights. Few good and actively involved parents want to be seen as less important to their child than the other parent. The difference between 28% time and 30% time is trivial; the difference between 49 and 51% is huge. The issue isn’t victory; it’s validation.

Perhaps it’s absurd to spend so much time and effort, and risk an even worse result, to fight for the last few percentage points of 50/50 custody. However, in all my years of practice, I’ve yet to encounter a case in which those last few percent were so unimportant to the other party that the other party offered my client a slight majority of overnights. If and when that happens, I might rethink my view. I expect to retire without ever encountering this hypothetical parent.

2 thoughts on Fighting for the last few percent of 50/50 custody

  1. Earl Crabb says:

    You are preaching to the choir, we both know and everyone with any wits does……..that to enter that true “equal” status. Someone is going to be losing their car payment, mortgage payment, fun money. I did not accept the standard and I have 3 weekends from Friday thru Monday morning……….now with that being said, you can do the math on who winds up spending actual time with their child moreso when the mother is at work during the weekdays and sees her for a few hours combined in a day from morning and night after she gets home……she doesn’t even pick her own child up from school half the time, letting her boyfriend do that….I see the sign out sheets. So back to your article, it’s money bottom line… has nothing to do with what is important. I actually get more time with my daughter, but not if you factor in while she’s asleep dreaming at her mothers….I suppose the courts know best huh….matching federal dollars…money……

  2. Laurie says:

    I see what you are saying, they don’t want to seem less significant in the eyes of the child. Or, it is a money issue. However, they need to think about what may be in the best interest of the child – which may really be not dragging it out and fighting over just a few days. Spend the days they have with their child and make them count. That is what they will remember, the quality of time spent. Thanks for sharing.

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