How to get 50/50 physical custody when you don’t have custody (and why it’s unlikely to happen)

Posted Friday, August 26th, 2022 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

A significant number of potential custody clients come to my office with the goal of 50/50 physical custody.  Often these are fathers who are not married to the mothers—a situation in which, under the operation of South Carolina law, grants mothers custody until a family court orders otherwise.  Generally–absent the mother’s unfitness, the child having significant behavioral, school, or medical issues that the mother isn’t adequately addressing, or the child being a teenager who wants to lives with the father–this goal isn’t realistic.

There are only two ways to obtain 50/50 custody: 1) get the court to award it; 2) get the other parent to agree to it.  The first option is highly unlikely.  After almost thirty years of family court practice, in none of my custody trials has a family court judge awarded 50/50 custody. These judges understand such awards are extremely likely to be reversed.

The South Carolina Supreme Court last addressed the issue of shared custody in Scott v. Scott, 354 S.C. 118, 579 S.E.2d 620 (2003).  The family court had awarded custody to the parties in alternating four-week periods.  Father appealed.  Mother defended by noting South Carolina’s legislature had recently amended what is now S.C. Code § 63-3-530(A)(42), granting the family court jurisdiction “to order joint or divided custody where the court finds it is in the best interests of the child.” The Supreme Court held that this “did not change the law in this State that, generally, joint custody is disfavored.” Citing the case of Mixson v. Mixson, 253 S.C. 436, 171 S.E.2d 581 (1969), it noted:

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.

The three recent published opinions affirming 50/50 custody have a highly unusual fact pattern.  Scott actually affirmed the joint custody arrangement finding exceptional circumstances existed.  It noted the trial court’s decision to alternate custody every four weeks was fashioned to be least disruptive for child, the parties both loved and wanted child, and sole-custody arrangement had potential for the custodial parent to effectively alienate the child from non-custodial parent.

In arguing their views that they should receive 50/50 custody, fathers will often note research showing children thrive in joint custody situations.  One presumes our state Supreme Court justices have some familiarity with this research. They have not reconsidered their holding in Scott. The Court of Appeals continues to routinely reject 50/50 physical custody arrangements. A recent exception is Clark v. Clark, 423 S.C. 596, 815 S.E.2d 772 (Ct. App. 2018), which still cited the language quoted above in Scott disfavoring joint custody.

In affirming a 50/50 custody award Clark found exceptional circumstances. The week-to-week schedule had worked well for child for about three and half years, the child was doing very well and was considered to be happy and well-adjusted, the husband reported that during the marriage the child, due to wife’s influence, could not tell him that she loved him and told him she could only give him one hug, and the husband loved the child and was a good father.

Spreeuw v. Barker, 385 S.C. 45, 682 S.E.2d 843 (Ct. App. 2009), is the third case affirming a 50/50 custody award. It affirmed in part because the appeal had taken seven years and the Court of Appeals did not want to upend what had been a lengthy status quo.  I represented one of the parties to this appeal and that 50/50 custody arrangement ended within months of this opinion.

Scott, Spreeuw, and Clark are the three 21st century published opinions affirming 50/50 custody arrangements.  All three share two characteristics: 1) there were significant concerns over parental alienation if one party was awarded primary physical custody; 2) the 50/50 arrangement appears to have worked for the child or children for a period of years.  If those circumstances exist (they rarely do), I counsel clients that the family court might award 50/50 custody. Absent those circumstances, I don’t see it happening.

The other way parents can get 50/50 physical custody is through agreement.  Since most custodial parents don’t want to relinquish primary physical custody, getting such agreements requires one of two circumstances: 1) a custodial parent who generously or naively agrees to it; 2) a custodial parent who fears losing custody and agrees to 50/50 custody to avoid that potential.

A client has minimal control over the other parent’s generosity–being nice helps, I counsel my non-custodial clients. Developing evidence that might put the custodial parent in fear of losing custody is often my strategy to obtain 50/50 custody.  But if that evidence doesn’t exist, it’s foolish to pursue that goal.

South Carolina case law (and family law practitioners’ understanding of this case law) explains why few custody cases resolve with 50/50 physical custody.  Those that do almost always involve situations in which each party has some risk of losing custody at trial. Most non-custodial parents deeply desire 50/50 physical custody.  Absent compelling circumstances to change custody, this goal is unrealistic.

2 thoughts on How to get 50/50 physical custody when you don’t have custody (and why it’s unlikely to happen)

  1. John E Trade says:

    How much weight does the Court put on a teen Childs request for 50/50? How is that even done, brought to the Courts attention? Does the teen just write a letter?

    1. I’ve not seen this come up in my practice and there aren’t reported cases on this specific issue.

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