Many people exit a divorce with children with the desire to balance the custody relationship so the parents split time with the children in a 50/50 custody arrangement. I have written several times about the risks involved in 50/50 child custody arrangements. As great as they are when they work, they are terrible for everybody when they go wrong. The risks are so great that many Texas family judges are hesitant to approve 50/50 custody in a divorce.
The reason for the refusal is that the judge believes the standard possession order (the typical 1-3-5 weekend schedule) is a good default to include in the divorce decree and if the parties want to come up with some other arrangement they can do that and if it fails then the standard possession order remains as a default.
It’s not a bad idea; although sometimes the inclusion of the 50/50 custody schedule in the divorce decree can actually help give the parties clear direction how to stay on course when things get rocky between the parents.
What is 50/50 custody in Texas
First, let’s clarify what 50/50 custody means. In a typical 50/50 custody arrangement the parents share equal time with the children and equal rights over the children.
Common schedules include alternating week schedules and schedules rotating every set number of days (such as a 5-5-2-2 schedule). Some parents reach a 50/50 time split by breaking up the year so one parent has most weekends and a large block of the summer.
Why 50/50 custody can be good in a Texas divorce with children or custody case
When 50/50 custody arrangements work they can be a real benefit to everybody involved. In a 50/50 custody arrangement the parents have to work closely together. That requires them to put the children first and keep the relationship amicable.
It avoids the situation that commonly develops in the standard possession order where one parent ends up with all the responsibility and the other parent gets to be the fun parent on the weekends. The parents also stay closely involved in the children’s lives. They must coordinate to ensure the children have a similar experience from one house to the other.
Why 50/50 custody can be a problem in Texas
50/50 custody requires a high level of cooperation and agreement between the parents. It is not always an easy task. The parents have separate lives and new significant others or jobs can shift the ability for one or both parents to hold up their end of the 50/50 arrangement.
The children will also evolve with age and have different interests and relationships with each parent as they grow. The kids may resist having to live in two places and it may make extracurricular activities or time with friends difficult.
The travel time between parents each week, or multiple times per week, can also be draining on everybody and lead to problems.
A key problem with drafting a 50/50 custody arrangement into the divorce decree or custody order is that it leaves the parents nowhere to go if the 50/50 custody stops working. If the co-parenting relationship has broken down in a 50/50 arrangement then the parents may not be able to reach an alternate agreement and will have to go to court to modify the court order to a different arrangement.
This is often a reason why judges prefer putting the standard possession order in the court order and letting the parties reach an alternate agreement for as long as that agreement can last.
The other side of that coin is that having the standard possession order to fall back on allows either parent to unilaterally cancel the agreement without consequence.
So there is certainly a balance of interests in drafting the divorce decree or court order.
Likelihood of 50/50 custody in Texas
Here in Texas the judges will consider a number of factors in a 50/50 custody arrangement. Most judges look at the same group of factors although individual judges have their own perspective about what factors are most important and how favorable the 50/50 arrangement must be before they will grant the proposed custody arrangement.
In Texas the judges generally will approve a 50/50 custody arrangement if one or both parties are represented by an attorney, the parties have both signed the order and the divorce or custody proceeding has had little to no conflict. This usually works in an uncontested divorce. A contested divorce that results in an agreement is likely to be agreed to by the court.
When the judge hears a trial there is a greater probability that the judge will want to see most or all of these factors fall in favor of 50/50 custody before he or she will even consider it.
- The extent of conflict in the case. The more the parents have shown the judge there is conflict the less likely the judge is to approve 50/50 custody. If one parent does not want 50/50 time then the judge usually will not approve it.
- Whether the parties have divorce attorneys. The judges are more likely to grant 50/50 custody when a divorce attorney drafted appropriate language in the divorce decree or custody order and the attorney has counseled his or her client about the risks involved.
- The quality of the proposed schedule. The judge is going to question whether the proposed schedule makes sense. Will both parents see the children reasonably frequently? Are the kids spending too much time traveling? Will the schedule work with the school schedule? Is there a good reason for the way parents allocated time?
- Whether the parents have a good co-parenting relationship. The better the parents work together the more likely a 50/50 custody schedule will function. If the parents are hostile towards each other the less likely it will work.
- The age of the children. The age of the children can affect the effectiveness of a 50/50 arrangement in a number of ways. Very young children may struggle with the constant transfer between parents. Older teens may find the schedule makes it difficult to enjoy a little independence.
- The proximity of the parents. This is a major factor for most judges. The further apart the parents live the more travel time everybody will suffer. Judges generally do not want kids spending all their time in the car. If the distance is substantial it can affect where the parents enroll the kids in school and extracurricular activities. The closer the parents live the more likely a judge is to agree to 50/50 custody.
- The individual needs of the child. The judge will also consider the effect on the kids by dividing their time between two households. Extracurriculars and medical issues can create problems. It may not be in their best interests to give up stability of spending most time in a single home.
Divorce attorney for 50/50 custody in Texas
As a divorce attorney who drafts 50/50 custody arrangements, I generally include them if four conditions are true:
1. There is a healthy co-parenting relationship;
2. The 50/50 custody arrangement is more likely to maintain the healthy parenting relationship;
3. Moreso than including the standard possession order as a default;
4. And they both understand that there is a high probability that the situation becomes unworkable over time. If that happens it may require going back to court to change the terms of the decree.
Without these conditions, it rarely makes sense to adopt a complex arrangement that relies on a cooperative relationship where the parties got to the point of needing a divorce decree because their relationship has already faltered. I see a lot of these 50/50 custody arrangements fall apart and as a Texas divorce lawyer I would rather add value to a client’s divorce by helping them avoid another round of litigation where I can.
Importance of drafting a 50/50 custody arrangement in the Texas divorce decree
Regardless of the design of a 50/50 custody arrangement (e.g. alternating weeks, 5-2-2-5, etc.), a well drafted custody arrangement in a divorce decree or mediated settlement agreement is a critical part of improving the probability of maintaining the 50/50 custody when problems arise between the parents.
The possession language in the divorce decree or settlement agreement becomes important when the parents are unsure of how to handle a unique situation or conflict arises.
If the parents are unsure of how to deal with the situation and the divorce documents provide no guidance then the parents are stuck stewing in the situation.
It is easy for the relationship to deteriorate to the point where the cooperation necessary for a 50/50 custody arrangement disappears.
Sometimes people think they will just figure it out down the road but in five or ten years you and the other parent may not have the same memories of how they intended to deal with the problem and the parenting relationship may be so deteriorated that a rational discussion is no longer probable.
These are reasons why I believe people should be very careful about putting a 50/50 custody arrangement in their divorce decree or mediated settlement agreement and quite frankly it’s one of the worst topics to try to draft without the help of Fort Worth divorce lawyers.
Key considerations in drafting a 50/50 custody arrangement in Texas
These points are only some of the considerations in a 50/50 custody arrangement under Texas law. There are many considerations that could be important in any particular divorce (or other family situation) that may be as important or more important than some of these.
- Is it reasonable to believe no significant changes will occur to the parents that would make this unreasonable?
- How will the parents live close enough to make it reasonable to transport the child(ren) on a regular basis?
- How will decisions be made about who will register the child(ren) for school?
- What happens if neither parent can take possession of the child(ren) during a particular time period?
- What happens if a parent relocates for work?
- And what happens if one or both parents remarries?
- How will child support be addressed?
- Who will have final say if the parents do not agree on a course of action?
- How will work schedule changes affect possession?
- How will the parents exchange possession of the child(ren)?
- What happens if one or both parents lose their jobs or take pay cuts?
- How will the parents deal with extracurricular activities?
- How will medical decisions be addressed when the parents disagree about treatment?
- Will discipline agree across both households?
These might seem like small issues now but I have seen 50/50 custody arrangements fall apart over a lot less. You have to remember that in ten years everybody will be in a different place in their lives. A lot can change in attitudes, financial status and household makeup.
Dealing with particular situations in the order language is not always the right course of action; but the language needs to balance clear instructions with the ability to broadly apply. That is where a Texas divorce lawyer experienced with drafting 50/50 custody arrangements can really put value into legal counsel.