The unusual distribution of bi-weekly overnights in most custody trials (or why one’s unlikely to get 50/50 custody except by agreement)

Posted Monday, August 6th, 2018 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

When I first started trying custody cases a quarter century ago, the family court was pretty uniform, and uncreative, in its awards of visitation to the non-custodial parent. Absent a mother’s unfitness, she was very likely to get custody. Absent the non-custodial parent’s unfitness, that parent was likely to get every other weekend. If the judge was feeling generous, that parent might get a dinner in the off week. If the judge was feeling really generous, that parent might get an overnight in the off week.

Under the incorrect assumption that most parents don’t work weekends, and under the correct assumption that most children don’t have school on weekends, the family courts tend to set school year visitation in a bi-weekly pattern. Thus each parent could conceivably have 0 to 14 overnights every two weeks. A quarter century ago, most cases resulted in parents having 2 and 12 overnights (the standard every-other-weekend schedule), with a few parents having 0 and 14 overnights (one parent was unfit) or 3 and 11 overnights (the judge was getting “crazy generous” with visitation).

Nowadays, the distribution of overnights is much broader. Zero and 14 are still rare; 1 and 13 are unheard of (at least I’ve never heard of a case with that distribution). However, as the family court has gotten much more generous with visitation, 2 and 12 has become less common. It’s now considered a signal of questionable parenting when a family court judge gives a non-custodial parent mere every-other-weekend visitation. Orders that give a one parent 3-5 overnights and the other parent 9-11 overnights have become more common. However awards of 6-8 overnights every two weeks are still exceedingly rare. Bi-weekly visitation distribution looks likes a camel’s humps.

The reason awards of 6-8 overnights every two weeks (as opposed to agreements that provide for this number of overnights) remain rare is the appellate courts’ resistance to joint custody arrangements. Joint custody is typically approved by the appellate courts when both parents have substantial prior relationships with the child and the family court is concerned that awarding one parent primary physical custody will cause the “winning” parent to undermine the other parent’s relationship with the child. An example of this is Clark v. Clark, 423 S.C. 596, 815 S.E.2d 772 (Ct. App. 2018).

In discussing why joint custody is disfavored, the appellate courts frequently quote the following language:

The courts generally endeavor to avoid dividing the custody of a child between contending parties, and are particularly reluctant to award the custody of a child in brief alternating periods between estranged and quarrelsome persons. Under the facts and circumstances of particular cases, it has been held improper to apportion the custody of a child between its parents, or between one of its parents and a third party, for ordinarily it is not conducive to the best interests and welfare of a child for it to be shifted and shuttled back and forth in alternate brief periods between contending parties, particularly during the school term. Furthermore, such an arrangement is likely to cause confusion, interfere with the proper training and discipline of the child, make the child the basis of many quarrels between its custodians, render its life unhappy and discontented, and prevent it from living a normal life.

What this means for South Carolina custody litigants is that, absent unusual circumstances, they cannot expect the family court to order 50/50 custody during the school year. Unless one already has close to 50/50 custody and one can show that the other parent is undermining one’s relationship with the child, going to trial with the goal of achieving 50/50 custody is foolish. Almost all cases that resolve with 50/50 custody do so by agreement.

So how does one get 50/50 custody by agreement? Two ways. The first method is to simply wear the other side down until it gives in. Sometimes primary caregivers agree to 50/50 custody because they either want to avoid the risk, expense, and stress of litigation. Sometimes they really don’t want to be the primary caretaker and a 50/50 agreement allows them to have custody without having the majority of parenting responsibilities.

The other method of getting an agreement of 50/50 custody is to put the primary caretaker in fear of actually losing custody–that is, being awarded 2-5 overnights every two weeks at trial. A parent who actually fears losing custody may agree to 50/50 custody as a way of avoiding the possibility of defeat.

Some parents approach trial with the goal of obtaining 50/50 custody and nothing less than 50/50 custody will get them to settle. Unless these parents can show a track record of close to 50/50 parenting and can show alienating behavior by the other parent, or unless they can put the other parent in fear of actually losing custody at trial, this goal is unrealistic.

Going to trial to obtain equal parenting time without having a strategy to get the client primary physical custody is generally malpractice.

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