Fighting for the last few percent of 50/50 custody

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.

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